December 2006 Archives

The Federal Trade Commission ended its year by prosecuting a 1,900-member physician group in Chicago for price-fixing. Since 2001, the FTC and DOJ have coerced 29 physician groups—some with as few as six members—into signing consent orders that restrict the right of doctors to negotiate contracts.

The FTC and DOJ apply a double standard to doctors and third-party payers. Payers may represent thousands of individual consumers and present doctors with a “take it or leave it” contract offer. But if even a handful of doctors get together to present a counter-offer, it’s a “per se” antitrust violation.

We mentioned the lawsuit over the absence of Nutrasweet in fountain versions of Diet Coke in 2004. In a typical "harm-less" class action, plaintiff Carol Oshana did not see any advertising for Nutrasweet in Diet Coke, knew that fountain Diet Coke tasted different than bottled Diet Coke, and continued to buy fountain Diet Coke after she learned it had saccharin, but demanded to be the representative of a class of all Diet Coke purchasers in Illinois on a "consumer fraud" claim. Via Howard Bashman, the Seventh Circuit affirmed federal jurisdiction and the district court's refusal to certify a class. Oshana did get a $650 nuisance settlement, which would buy 1000 liters of Diet Coke at my local grocer.

• Safety vs. "discrimination":9th Circuit: UPS must hire deaf drivers; EEOC challenges Exxon's pilot age limit; "To avoid charges of 'racism,' we disciplined black and white students differently."
• Jackpot justice: $217M for misdiagnosed stroke in Florida (and followup)
• Trespass atop rail car, win $24 million
• Jackpot justice: $20M for $25,000 insurance claim
• Judicial elections and the New York Times
• On picking a jury
• Public Citizen and DMI caught using misleading statistics
• Encore on the falling-out-of-a-loft-bed case
• Why there aren't DVDs of some of your favorite old TV series
• Tag banned because of liability fears
• Punitive damages and the Supreme Court
• Two more hot-coffee-lawsuit datapoints. It might be easier to list the chains that haven't been sued for serving coffee.

• Calif. AG sues automakers for global warming
• Plaintiff: McDonald's should've warned me and my boss not to be gullible. Incidentally, the circumstantial criminal case against the guy behind the insidious phone calls fell apart because his defense attorney was able to impeach the victims (in a different Louisville case) by accusing them of trying to shake down McDonald's for hundreds of millions. So he's still on the street. Thanks, plaintiffs' bar!
• The burglar and the skylight: another debunking that isn't
• First rumblings of NYC trans fat ban gets Wally TV coverage.
• Suit: plaintiff was too stupid to be admitted into law school
• Neglect your kid now, sue for $5 M later
• Lonelygirl 15 creator defends Grand Theft Auto against meritless lawsuit
• NAACP suit: unlawful for clinic to close on Jewish Sabbath
• Can we blame lawyers for pro se claims?
• New Bizarro-Overlawyered blog writers don't realize they're arguing for reform, or providing excellent examples of how lawyers hurt medical consumers. See also the relationship between efficiency and safety; Milberg Weiss Fellow Cyrus Dugger visits the comments in an unrelated post to make an unfounded accusation that he refuses to back up.
• Pelman allowed to sue McDonald's over getting fat.

Jonathan Adler beat me to talking about this Ohio Supreme Court case, but I think it presents an interesting example of "hard facts make bad law"—and, in this case, the plaintiff, an especially undeserving fellow, should have won, but didn't.

David Gross, a teenager, was a callow sort who worked for the local KFC. Among his duties was cleaning out the pressure cooker, but Gross repeatedly ignored explicit instructions not to use water in cleaning it. This was no arbitrary command, for in November 2003, Gross did just that, and the cooker exploded, burning Gross and two co-workers. The franchise investigated and fired Gross in February 2004 for the safety violation, and sought to end their workers' comp payments to Gross. Their theory: the egregious safety violation was a voluntary abandonment of employment. The administrative agency agreed, the court of appeals reversed, and the Ohio Supreme Court restored the original decision that the franchise didn't have to pay workers' comp after it fired Gross.

A Volokh commenter suggests that the fact that the franchise waited to fire Gross means that they're on the hook. That seems like the wrong rule: it would punish the franchise for taking additional steps to ensure that it was acting fairly to its employees by investigating the incident before firing someone.

That said, it's wrong to treat the firing, even the for-cause firing, as a "voluntary abandonment." Workers' comp is a no-fault regime. Raising the question of fault, even when the fault is as egregious as Gross's here, inserts a complicating factor into the system. There's a certain unfairness to assessing liability against the franchise: they told Gross not to do something dangerous on multiple occasions, he did it anyway, and Gross gets to recover. But the alternative is to create an ambiguous rule that gives other employers the incentive to turn workers' comp hearings into a question of whether a worker's negligence was really recklessness or intentional disregard for safety rules. One reduces Type I errors, while increasing Type II errors, and substantially decreasing administrative efficiency: straightforward proceedings now have uncertainty, raising expenses for everyone. Perhaps Gross should be criminally prosecuted for reckless endangerment; perhaps a penalty of a criminal conviction should include restitution to the employer. But in the civil proceeding, the legislature made a conscious decision of the tradeoffs here, and it's not for the courts to decide that those tradeoffs should be recalibrated in individual cases.

Note that valuing efficiency here favors plaintiffs, rather than defendants, putting the lie to the argument of anti-reformers that reformers hide behind efficiency to mask a pro-defendant bias. This reformer favors efficiency because it makes all of us better off in the long run. Efficiency isn't the only value—a society can rationally choose inefficient procedures because it believes the protected values are worth the additional cost—but the public policy debate shouldn't ignore the questions of costs and benefits and act as if results can be achieved for free.

• Wal-Mart lawn mower suit: newspaper reporter parrots plaintiff's attorney's implausible tale without fact-checking
• The Kessler RICO ruling on tobacco
• NJ court: no warning that one might fall out of loft bed required
• $18 million "sudden acceleration" verdict in South Carolina
• Another way lawyers hurt safety
• ADA frequent filer forgets who he's suing
• Lawyers fake evidence in $2B suit, still practice today
• The return of the spilled-coffee tort—or is it?
• Trial lawyer wikiality

• Junk faxers get a bigger bounty than Osama bin Laden (and here)
• Wore boxer shorts to game, sues over yearbook photo
• Mistaken for Michael Jordan, so he sues
• Revealed preference for trans fats
• 151-proof rum is flammable, who knew?
• Plaintiff sues Con Ed because Dr. Bartha blew himself up with gas
• Red Buttons, comedian, litigant
• "Sued for expressing "glee" over lawyer's indictment"
• Town seeks to hold parents liable for kids' drinking in homes

Saddam Hussein has been executed, according to numerous media reports. A few hours ago, U.S. District Judge Colleen Kollar-Kotelly of Washington denied a last-minute application for a stay of execution filed by Hussein’s lawyers.

The application was filed at 1 p.m. this afternoon by the law firm of Gilman & Associates, who argued that a stay was justified because Hussein was a named defendant in a civil lawsuit before the D.C. district court, “but his incarceration has prevented him from receiving proper due process notice of his rights to defend himself and his estate.” Military officials said Hussein could not meet with his lawyers to discuss the civil suit until January 4, which obviously is a moot point now.

Next week the Justice Department will file its response to a motion to dismiss made by Stolt-Nielsen Transportation Group and its two co-defendants in a criminal antitrust case now pending in Philadelphia. Four years ago, Stolt-Nielsen received amnesty from the DOJ in exchange for cooperating with the Antitrust Division’s price-fixing investigation of the parcel tanker industry. The amnesty was revoked less than three months later, however, after the Division accused Stolt-Nielsen of misrepresenting the timeline of the alleged conspiracy.

The Division had never revoked an amnesty granted under its 1993 Corporate Leniency Policy, and the unprecedented action against Stolt-Nielsen prompted the company to file a lawsuit to enjoin prosecutors from indicting the company. In January 2005, a judge granted the injunction, holding that Stolt-Nielsen did not breach the amnesty agreement. Specifically, the court said the terms of the amnesty agreement—which was drafted by the DOJ—made no reference to any specific timeline.

Did you think the city famed for Al Capone and the Prohibition speakeasies would roll over for an even sillier nanny-statism?

When the letter came from City Hall threatening punishment if he continued to serve foie gras at his North Side restaurant, Doug Sohn framed the warning and set it beside his cash register.

And he kept serving the fattened duck liver without a care. ...

The city has sent warning letters to nine restaurants believed to have served foie gras but issued no citations, Chicago Department of Public Health spokesman Tim Hadac said. Letters are sent after a citizen complaint and are followed by a visit after a second complaint. Visits that turn up evidence of the banished dish can result in fines from $250 to $500.

But Mayor Richard Daley is no fan of the ban--just this week, he called it "the silliest law" the City Council has ever passed.

Perhaps that helps explain why the Health Department is in no rush to boost their compliance checks.

"In a world of very limited public health resources we're being asked to drop some things so we can enforce a law like this," Hadac said. "With HIV/AIDS, cancer, West Nile virus and some of the other things we deal with, foie gras is our lowest priority." ...

Some owners have tiptoed around the ban by serving the dish under alternate or code names ("I'll have the special lobster" will supposedly score foie gras at one restaurant), but renegades say they'll do what they must to fight City Hall. ...

At first, [restauranteur David Richards] said, restaurant owners worried their access to foie gras would be limited, and they crafted plots to keep their supply flowing--like getting it mailed to a suburban address for weekly covert pickups. Such cunning turned out not to be necessary, he said. Richards still gets foie gras from the same distributor he always did, and no one seems to care that it is still on his menu.

"We look at it as a choice," he said. "We live in a free-market society and if people are truly offended they won't buy it. If they don't buy it, I won't buy it."

Instead, he said, his foie gras sales have climbed, making him even less inclined to heed the law. ...

Many of those most vocally opposed to the ban have coolly stepped away from the debate by ending their foie gras sales or at least coming up with names clever enough to obscure the issue. Available on the menu at Copperblue, for instance, is "`It Isn't Foie Gras any Moore' Duck Liver Terrine"--a testy nod to the alderman who sponsored the foie gras ban.

Though the $16 cost seems closer to the price of foie gras than simple duck liver, Copperblue chef and owner Michael Tsonton would not say whether he had merely renamed the illicit dish. In September, when still serving foie gras, he got a warning letter that he said he hung in his kitchen.

Former federal Judge H. Lee Sarokin, now a blogger, defends his decision in the Kreimer case (Mar. 17, 2005; Feb. 25):

I concede that I have made some mistakes (what judge hasn't), had some reversals and wish I could revise some decisions, BUT no matter how many times they say that I ruled that a "smelly, homeless" man could annoy and drive patrons out of the Morristown library and harass women, it won't be true. I declared a regulation invalid on the grounds that it was too vague and broad in giving librarians the discretion to oust or forever bar patrons. I never made any ruling about the individual involved or his conduct. It was a decision on the law not on the facts.

This is a dodge: Sarokin ruled that the library could not have a blanket rule excluding members of the public for poor personal hygiene, because such a rule would be too vague. So Sarokin did rule that it was impermissible for a library to bar someone for being so smelly as to be a nuisance. Also unmentioned is that Sarokin was wrong on the law, to boot: the Third Circuit eventually overturned Sarokin's decision:

While the district court was probably correct that the rule may disproportionately affect the homeless who have limited access to bathing facilities, this fact is irrelevant to a facial challenge and further would not justify permitting a would-be patron, with hygiene so offensive that it constitutes a nuisance, to force other patrons to leave the Library, or to inhibit Library employees from performing their duties.

A handful of teenagers were moshing at a New Year's Eve party; 19-year-old Calvin Harris was apparently struck in the chest and died of concussion of the heart in a freak accident. Harris's family is suing William Conklin (who allegedly hit Harris), and Conklin's mother, who owned the house where the party was held, though she wasn't home at the time. It's not clear from press coverage if William Conklin was an adult at the time of the party. (Anthony Lonetree, "Lawsuit filed over New Year's party death", Minneapolis Star-Tribune, Dec. 29 (via Romenesko); inconclusive Harris family video of collapse).

• Family sues MySpace when 14-year-old daughter sneaks out of house to meet 19-year-old boy; the arrested alleged rapist also threatens suit.
• Plaintiff can sue Illinois Burger King for being hit by car that crashed through restaurant.
• Plaintiff fakes injuries, wins millions, drives doctor out of Illinois.
• "You're going to get accident cases of people that aren't really hurt, you say they're hurt and you send them to the doctor." But everybody does that!

• How speed limits hurt consumers.
• Programmer plaintiffs win overtime wages at the cost of bonuses and stock options; lawyers get contingent fees for "victory."
• Day care center kills child with lawn mower, lawn mower company liable for $2M.
• Commenter disregards self-heating coffee warning, seeks lawyer: "Our microwave was destroyed, our kitchen was covered in dried latte"
• Alleged cost of bad behavior exceeds all money in existence.
• What are consumer hellholes?

According to this Associated Press report in the New York Times, the North Carolina state bar has filed ethics charges against Mike Nifong, saying that he has violated several ethics rules -- in particular the rule against making misleading and inflammatory statements to the media about those accused of a crime.

The bar committee said that it had opened the investigation just two weeks after the rape charges were first made, though it only filed the ethics charges against Nifong on Thursday. In addition to the public-statement charges, Nifong was also charged with dishonesty for certain statements that he knew were misleading based on reports already in his possession.

No hearing date has been set.

Class actions galore:

• Class action plaintiffs: $5 discount on new 2-year cell-phone contract; lawyers, $5.5 million
• Class action plaintiffs: literally worthless coupon; lawyers, $975,000
• Class action against LA Angels seeking $4,000/tote bag leads to Frivolous Lawsuit Night in Altoona
• When bringing a class action complaining about a missing 10 calories in the label, make sure your named plaintiff wasn't adding crumbled cookie toppings to the low-fat dessert.
• E-mail a lawyer, discover you're a named class-action plaintiff; whereas Milberg Weiss is accused of just buying their plaintiffs through illegal kickbacks, as well as purchasing a thinktank fellowship.

That's not to say that there weren't other types of lawsuits:

• "Student Sues Illinois University After Deer Attack"
• $14M "wrongful birth"
• Legal right to "emotional support goats"?
• Wet t-shirt lawsuits create perverse incentives

• Respirator manufacturers spent 90% of their income defending themselves against hundreds of thousands of shotgun lawsuits, though they haven't lost one.
• The bait and switch of "abstinence" education
• One reason for high gas prices on the East Coast: junk-science MBTE cases.
• Chrysler liable when unattended toddler shifts van (with key left in ignition) out of park and falls out of car.
• "Please don't feed the trial lawyers"
• Sadly, Joe Jamail's deposition video is no longer on YouTube, but there are always the anecdotes. Update: back on YouTube as of Jan. 8
• 14 years, $14.5M; 14 minutes, $1.2M plus punitives. Who says non-economic damages aren't irrational?
• Prop 65: "shaking down the defendants for ubiquitous trivia"

Following up on my post the other day about the lawyers' share of the possible $4.5 billion Exxon payout -- the WSJ Law Blog discussed this yesterday, and provided some additional and interesting numbers. The lawyers' share of the award has been set at 22.4% of the final judgment, including interest. That's smaller than the percentage in many contingent-fee agreements, but results in a lot of dollars here.

According to the WSJ, there are 62 law firms representing plaintiffs. Each firm's share depends in part on how many clients it represents, and there is a three-percent "bonus" for the most-active firms. So each lawyer's share of the $1 billion+ is a little hard to calculate, but partners at both Faegre & Benson and Davis Wright Tremaine estimated that their firms would each clear over $100 million. Faegre, for example, has 262 partners, so that would be $381,679 each -- just $22,451 for each of the 17 years that the case has been pending, but on the other hand there were almost certainly long stretches where little if any work was being done.

Oops -- almost forgot the actual plaintiffs. There are 32,677 of them, who will be splitting the other three or four billion (depends on the final interest award). Assuming it's $3.5 billion, and assuming everybody has an equal share (which isn't true), each plaintiff would recover $107,108, or $6,300 for each of the 17 years he or she has been waiting. Is it fair that each lawyer on the case will end up with three or four times the cash that an injured party is getting? Let the comments begin.

• Tried to outrun subway train, wins $1.4M
• Texas undercover agents preemptively arrest drinkers in bars for being drunk.
• IDEA: school choice for legally savvy parents.
• Not about the money files: $175 million suit against BGE
• County 25% responsible for employee's murder of husband
• The Trevor Law Group's new shakedown practice?
• When jurors bring expertise
• Even Madison County asbestos juries have their limits.
• Future sexually-frustrated-fan celebrity class actions

A busy month:

• Target sued because website not accessible to the blind.
• Sued for taking baths too early.
• The winning plaintiffs' attorney responds to our post objecting to a $29 million verdict.
• "Fair housing" suit against Craigslist.
• Rhode Island jury endorses nuisance theory against lead paint manufacturers
• Maquiladoras spend $17M defending themselves against junk science.
• "Customer of size" loses suit against Southwest Airlines.
• $160 million for (someone else's) beating
• Mississippi jackpot justice.
• Dallas Observer doesn't owe $1 billion.
• Flying shrimp not so fatal after all.
• Warren Meyer's favorite lawsuit.

• James Frey meets a million little plaintiffs. And then some.
• Lawsuit garners restaurant second review.
• Sherri Carlson blames Nickelodeon and Kellogg for having to say no to her kids.
• PPA litigation fizzles.
• Missouri court throws out $80M sudden acceleration verdict on appeal.
• E-mail and litigation.

For the past three years, Stan Cramer has been fighting to save his parking garage near the Harrisburg International Airport from eminent domain seizure by the airport’s municipal operating authority. The airport wants to eliminate competition with its own parking lots, and when Cramer refused to sell voluntarily, the authority used its powers under Pennsylvania law to take the property by force. Recently, a Pennsylvania judge allowed Cramer’s lawsuit to stop the seizure to proceed to trial.

In a related case, Pennsylvania AG Tom Corbett filed a federal lawsuit last year to stop the airport authority’s seizure on the grounds that it violates federal antitrust law. It’s a strange setup: The Commonwealth of Pennsylvania suing one of its own subdivisions in federal court over the use of power granted by state law. In March, U.S. District Judge Christopher Conner dismissed the AG’s complaint, citing the airport authority’s immunity from federal antitrust lawsuit as a state actor. Conner said the airport’s anti-competitive motives were irrelevant; its actions were clearly authorized by the Pennsylvania legislature.

Corbett appealed the judge’s dismissal to the Third Circuit Court of Appeals. Briefs were filed in October, and a decision on the appeal is expected next year. Meanwhile, new management has taken over at the airport, and they are trying to negotiate a settlement with Cramer.

Was it the snub heard 'round the world?

At a conference earlier this year, one speaker told the crowd that his former company, McKesson Corp., had cut a prominent firm out of the bidding for its legal work.

Though Arthur says he didn't name the firm, he did explain his reason to the audience: "It had been highlighted in a legal magazine for having [more black partners than average]."

Arthur was followed on stage by Wal-Mart General Counsel Thomas Mars, who, Arthur and others say, told the audience: "I know who that firm is, and I am going to speak to them."

...

As for Arthur, making business decisions based on diversity just makes good sense, he said. "Law firms exist to please and serve clients," he said.

Outrageous that a client would give or take away business based on the completely irrelevant skin color of its attorneys, no?

Excuse me, I misquoted the adjectives in the story: the McKesson attorney, Arthur Chong, was complaining that the law firm had too many white partners. Which is apparently so unnotable that an entire article in The Recorder about Chong's speech does not speak to or raise the point that his statement was appalling. (Kellie Schmitt, "Corporate Diversity Demands Put Pressure on Outside Counsel", The Recorder, Dec. 28). Stories like this put the lie to any claim that African-American participation in big law firms is hindered by racism; if anything, law firms are forced by this socially-accepted racism to compete against one another to recruit and retain the few African-American attorneys out there, because clients apparently value the sneetches with the stars on their bellies more than sneetches who are merely the best lawyers, and shareholders tolerate this dissipation of value. (And welcome, WSJ Law blog readers, where there is a big debate in the comments.)

AEI research assistant Phil Wallach writes:

On today’s Washington Post op-ed page, Peter J. Woolley advances the following argument:

Cars, trucks, and getting where you need to go faster than walking:
Costs: Catastrophic! An “annual tragedy”! 44,000 deaths each year!
Benefits: Uh…

“Radical solutions in the form of regulation, [taxpayer-funded] investment and enforcement”:
Benefits: Great! Should be a “cause celebre”! We can save these people!
Costs: Uh…

Nothing like clear-headed, even-handed thinking to find the "story of the year.”

Of course, the way to eliminate 90%+ of fatalities is the reductio ad absurdum position to have a 10 mph speed limit. Woolley specializes in Japanese politics, so it's not clear why he gets prime Washington Post space to argue thoughtlessly for a multi-billion-dollar reallocation of the American economy.

Stuart Taylor and KC Johnson discuss in Opinion Journal. Our earlier coverage.

The WSJ's Law Blog reported recently on the joy being experienced by lawyers in the firms representing plaintiffs in the Exxon Valdez case, their spirits dampened only mildly by the Ninth Circuit's recent reduction in the punitive award from $4.5 billion to $2.5 billion. Those firms include traditional plaintiffs' firms such as Milberg Weiss, but also firms normally seen representing defendants, such as Davis Wright Tremaine and Faegre & Benson.

How do Faegre & Benson lawyers feel about the prospect of sharing in perhaps one-third of $2.5 billion? "It's great," said partner Brian O'Neill to the WSJ. Any grief due to the $2 billion reduction is probably tempered by the amazing $2 billion in post-judgment interest that will be tacked onto the final bill. (Actually, maybe that's not amazing in itself, since the case has been pending since 1989. Still, the interest "is not chicken s___," as O'Neill put it.) O'Neill said of the titanic fee that is coming their way, "This is one of the few chances a bill-by-the-hour guy and a bill-by-the-hour firm has to get ahead." I for one have been worried for some time about how the partners in these little "bill-by-the-hour firms" were managing to get by, so it's good to know that for once they may have been able to afford that second can of beans for the family at Christmas dinner.

Damages in the case were estimated at about $500 million. The Ninth Circuit basically held that the evidence did not warrant a punitive award that went to the limit of what is permitted under State Farm v. Campbell, a 9:1 or "single-digit" ratio, and reduced the ratio to 5:1.

Last week, the Justice Department’s Antitrust Division issued a triumphant press release touting that 2006 recorded “the second highest level of criminal fines” in Division history. The Division is actually measuring the government’s 2006 fiscal year: From October 2005 through September 2006, the Division obtained criminal fines totaling $472,445,600, a 40% increase over the previous fiscal year. The Division also said that criminal prosecutions of individuals yielded a combined 5,383 days of jail time; and during the first three months of the current fiscal year, an additional 9,135 days of jail time have been imposed.

Thomas Barnett, the head of the Antitrust Division, said more fines for “cartels” and prison sentences for “price fixing” executives created substantial economic benefits:

“Sound enforcement of the antitrust laws ensures that illegal conduct is stopped, procompetitive transactions can proceed, and businesses are able to engage in vigorous competition resulting in lower prices, better quality and more choices for consumers.”

Many of you may be aware of California's "Proposition 65," passed in 1986 and intended to help consumers by requiring warnings of any known exposure to a variety of chemicals, many of them carcinogens, that the state identifies on its Prop 65 list. In practice, many would argue, the law has done more to help plaintiffs' attorneys than consumers, by creating an enormous list of allegedly dangerous substances and permitting a lawsuit whenever warnings of those substances are not posted -- whether or not there is any realistic risk of harm under the particular circumstances.

Here's a good example. Those listed chemicals include "heterocyclic amines" (HCAs) which are formed by cooking meat, the highest concentration occurring in cooked chicken. And so a group called the Physicians' Committee for Responsible Medicine recently sued several restaurant chains, including McDonald's, Burger King, and Outback Steakhouse, charging them with failure to warn customers that they cook meat. That is, failure to warn customers about the activity that is the precise reason that those customers are going there in the first place.

According to the National Cancer Institute, while HCAs may have some association with increased risks of cancer, there is currently "no good measure of how much HCAs would have to be eaten to increase cancer risk" -- more research is needed. In fact, the NCI cited to one study that specifically covered fast-food restaurants and concluded that those companies' products had low levels of HCAs. According to that study, home cooking was a greater danger. But that's the beauty of laws like Prop 65 -- evidence tends to be optional.

American Council on Science and Health
Prop 65 News Online

Previous coverage of the animal-rights group "Physicians' Committee for Responsible Medicine" on Overlawyered: Sep. 6 and links therein.

Greetings, Overlawyered readers. I'm your other post-Christmas guestblogger, Skip Oliva. I'm not a lawyer, but I do write about legal subjects. For the past four years, I've run the Voluntary Trade Council, a public policy group that focuses on antitrust regulation. I maintain VTC's weblog as well as write for the Mises Economics Blog. During my stint here I'll be discussing some of the more interesting antitrust cases from the past year.

Hi -- I'm one of your two post-Christmas guestbloggers. I'm a defense attorney in the San Francisco office of Shook, Hardy & Bacon, LLP, and I also write a blog called "Lowering the Bar," which is a legal-humor site, for which, I hasten to add, SHB is not responsible. I have some experience with the unnecessary-lawsuit kind of story in particular, and I think I'll be starting today with a recent California lawsuit against grilled chicken. Should have that posted in the next hour or so. Anyway, I look forward to blogging here for the next week. Thanks to Walter and Ted for the opportunity.

And she wins about $80,000 (plus attorneys' fees) for her hurt feelings. Mrs. G delayed her caesarean a few minutes to have a pre-op cigarette; her coughing made her epidural more difficult, and Mrs. G and was criticized by anesthesiologist Dr. A, who noted the increased likelihood of surviving to see her daughter's wedding if Mrs. G quit smoking. (Arthur Martin, "Doctor's smoking jibe wins mother £44,000 payout", Daily Mail, Dec. 21; Kevin MD blog). UK medical compensation has grown 30,000 percent in under ten years. The Daily Mail story also notes:

An employment tribunal heard that David Portman, 27, took 137 days off over a five-year period because of a series of 'unfortunate accidents'.

When he took yet another week off because of his pet's demise, bosses decided enough was enough and sacked him.

But Mr Portman won his claim for unfair dismissal - and this week walked away with undisclosed compensation reckoned to be at least £10,000.

The tribunal ruled his absences from work were all legitimate and mostly caused by injuries suffered in the course of his duties.

Mr Portman, who was based with Royal Mail in Sheffield, put his months off duty down to bad luck.

'I felt really aggrieved when I was sacked without them taking into account my particular circumstances,' he said.

Regarding our recent post, David Giacalone takes issue with our "recycling of stale pro se cases." If I may defend our site:

Given that home and hearth will likely keep me distracted throughout December 25, I have pre-posted this parting message:

Thank you to Walter Olson for the opportunity to guestblog here over the past week.  Thank you to Ted Frank for sharing the space.  And thank you to Overlawyered readers for reading my posts here.  Walter has additional top quality guestblogging in store to see you through to the New Year.  Since he hasn't shared the secret with me, I will be checking in bright and early Tuesday to learn who it might be.  I encourage you to do the same.

It has been a pleasure doing justice with you.

Plaintiffs' attorney Sandy McMath responds in the comments to our discussion of the Chapman v. Ford Motor Co. case. Note particularly the bait-and-switch that assumes Overlawyered readers are innumerate.

UCLA School of Law professor emeritus Michael Asimow has published a paper pondering an apparent contradiction in American's views of lawyers and the adversary system:

Lawyers and lay people in the United States generally believe that the adversary system is the best way to deliver justice in a civil or criminal trial.  Broadly speaking, adversarial procedure leaves most critical pre-trial and trial decisions such as discovery, the framing of issues, choice of witnesses, the questions directed to witnesses, and the order of proof in the hands of lawyers.  The central precept of the adversary system is that the sharp clash of proofs presented by opposing lawyers, each zealously representing the interests of their clients, generates the information upon which a neutral and passive decisionmaker can most justly resolve a dispute.  In contrast, legal systems outside the Anglo-American world employ inquisitorial pre-trial and trial procedures that leave critical elements of the process under the control of a judge rather than the attorneys.

        * * *

The unquestioned dominance of the adversarial system seems paradoxical because the general public despises and distrusts lawyers.  In an ABA poll conducted by M/A/R/C Research, only 14% of the public were extremely or very confident in lawyers and 42% were only slightly or not all confident.  People had far more confidence in judges: 32% were extremely or very confident in judges and only 22% had slight or no confidence in judges.  Why, therefore, would people want to turn over something as important as control of the pre-trial and trial processes to lawyers whom they thoroughly distrust, rather than to judges whom they distrust much less?  Why would they prefer a system whose objective is to generate 'trial truth' rather than real truth, substantive justice rather than procedural justice?  This article speculates about some possible solutions to these puzzles.  [Footnotes omitted; emphasis in original.]

Professor Asimow suggests that attitudes toward the real life adversary system have long been shaped by the stories of purely fictitious advocates.  "Popular culture has taught us that the adversarial system uncovers the truth about past events.  According to familiar pop culture narratives that we absorb from the cradle onward, lawyers working within an adversary system are champions of justice and liberty." 

Asimow's Exhibit A is the greatest criminal defender of them all, Perry Mason.  Exhibit B?  A rather less polished upstart from the outer boroughs of New York:

A staple of lawyer movies is the brilliant cross-examination that destroys a lying, deceptive or mistaken witness and reveals the truth.  Although many such movies are instantly forgettable, some are exceptionally vivid. Just to name a couple, take the immortal My Cousin Vinny.  Vinny Gambini has recently passed the New York bar exam (after numerous failures) before traveling to Alabama to defend his young cousin and a friend in a murder trial.  Vinny is clueless about Alabama culture and criminal procedure, but nevertheless morphs into a brilliant trial lawyer.  His cross-examinations are devastating.  For example, one eye-witness claims he saw the two 'utes' enter the Sack o' Suds grocery store and exit five minutes later in a green car.  He knows it was five minutes because he looked up just as he started and just as he finished cooking his morning grits.  Vinny points out that in the rest of the grit-eating world, it takes 20 minutes to cook grits.  The witness is destroyed.  Vinny also deploys his girlfriend Mona Lisa Vitto, an unemployed hairdresser, as an expert witness on auto mechanics to devastating effect.  This scene effectively validates the existing system of partisan expert witnesses.  [Footnotes omitted.]

The entire paper, (M. Asimow, "Popular Culture and the Adversary System"), with many more examples, can be downloaded as a PDF from Social Science Research Network.  Link via Christine Corcos at the Law & Humanities Blog ("Michael Asimow on the Image of the Adversarial System in Popular Culture," Dec. 1).

Evelyne Micky Shatkin worked at University of Texas at Arlington, where she had had a series of disputes with a co-worker, which after mediation, resulted an ultimatum from Human Resources: further problems could get you fired. Not satisfied, Shatkin held an after-work "prayer session", where, with another employee, Linda Shifflett, "anointed" the absent co-worker's cubicle with olive oil, purportedly because of fears that the co-worker was demonically oppressed, chanting "You vicious evil dogs. Get the hell out of here in the name of Jesus. ... I command you to leave." A third male co-worker, who had agreed to participate in the prayer, became uncomfortable with the use of monounsaturated fats, and reported the matter. The other two, acknowledging that the third was not an active participant, were fired, and are now suing, claiming religious discrimination (as well as age and sex discrimination because the third worker was not fired). (Eva-Marie Ayala"Women said peer was 'demonically oppressed'", Fort Worth Star-Telegam, Dec. 23; AP, Dec. 23). Shame on the Liberty Legal Institute for bringing the suit.

A new report from Congress's Government Accountability Office — am I the only one who didn't notice that it changed its name from "General Accounting Office" over two years ago? — attempts to determine why the number of actual applications for approval of new drugs has increased at a much slower rate than the increase in pharmaceutical industry research and development expenditures.

Per the GAO panelists, "conflicting pressures of avoiding risk and producing a high return on investment" combine to curtail the development of the most innovative new drugs:

[C]ompanies prefer to produce drugs that require little risk taking but still offer the potential for high revenues.  This strategy has created an emphasis on producing 'me too' drugs — drugs which have a very similar chemical formulation to drugs already on the market.  These drugs are less risky to develop because the safety and efficacy of the drugs on which they are based have already been studied.  According to one panelist, an industry representative, because the length, complexity, and expense of developing a single drug have all increased dramatically over the last 10 to 15 years, companies must choose fewer drugs to develop.  As a result, they will often follow a business model that involves choosing drugs that are easy to develop, with a large market that will produce a large return on investment.

Another factor cited is "sponsors’ uncertainty over how they are to implement requirements for the safety and efficacy of new drugs."  The report notes

general agreement that the lack of precise FDA regulatory standards that outline what constitutes a safe and effective drug is a factor when making drug development decisions — weighing the safety of drugs against their potential therapeutic benefits.  Panelists generally agreed that because there are no precise standards for making these decisions, sponsors and FDA must address them on a case-by-case basis.  As a result, it was indicated that this uncertainty may lead a drug sponsor to abandon a drug rather than risk significant development expenditures.

While product liability litigation is not mentioned in the report by name, it clearly factors in to the industry's aversion to "risk."  Moreover, at least some of the uncertainty and extra-cautious attitudes within the FDA can be traced to highly publicized — and heavily litigated — withdrawals of drugs based on safety concerns:

* * * Some analysts have reported that safety concerns during the 1990s — which led FDA to request that manufacturers withdraw pharmaceuticals including fenfluramine and dexfenfluramine (known as Fen-Phen) in 1997, Propulsid and Rezulin in 2000, and Baycol in 2001 — impacted FDA’s review requirements.  For example, a 2004 report completed for the European Commission — the executive body of the European Union — found that the withdrawals of these pharmaceuticals from the market affected FDA’s implementation of its regulatory standards.  According to this study, FDA began to demand more complex clinical trials that called for more testing on: (1) how drugs interact with each other, (2) the effect of drugs on liver toxicity, and (3) the relationship of drugs to cardiac risk. In addition, according to several drug development experts and some industry analysts, FDA has been requiring more lengthy and complex clinical trials, which call for more patients and increased costs. . . .

Commenting on the GAO report, Ronald Bailey (Reason Magazine, Hit & Run, "What's to Blame for Fewer New Pharmaceuticals?," Dec. 20) summarizes:

Why have FDA regulators become more cautious?  Because, as Harvard Business School professor Regina Herzlinger explains in her May, 2006 article, Why Innovation in Health Care is So Hard (not online): 'Officials know they will be punished by the public and politicians more for underregulating — approving a harmful drug, say — than for tightening the approval process, even if so doing so delays a useful innovation.'

I will venture to suggest that the FDA's increased obsession with safety may be killing more people than it saves.  How about a GAO study on that question?  After all, if it takes the FDA ten years to approve a drug that saves 20,000 lives per year that means that 200,000 people died in the meantime.

The full GAO report, "New Drug Development: Science, Business, Regulatory and Intellectual Property Issues Cited as Hampering Drug Development Efforts," is available for viewing and download here [PDF].

Via Peter Lattman, Bill Lerach, unhappy with press coverage of an embarrassing defeat in an attempt to blackmail companies with meritless (but highly risky) litigation over Enron, sends the WSJ a nastygram, and the WSJ responds.

In the short story "Dracula's Lawyer", Dracula sues a city for refusing to hire him as a computer programmer because he can only work nights. (h/t to one of my favorite judges, Danny Boggs, whose original email was forwarded)

In the sort of cases covered by this site, public relations overshadow substance all too often.  For a glimpse of how even public servants -- in this case the prosecutors of the Los Angeles City Attorney's Office -- are keeping a constant eye on the P.R. possibilities of their cases, consider this report from former Los Angeles Times reporter-turned-blogger, Kevin Roderick (LA Observed, "Rocky's office defines what makes news," Dec. 22):

A recent email reminded all the lawyers in City Attorney Rocky Delgadillo's criminal branch never to talk to reporters without clearance — and how they should recognize a newsworthy legal case.  Public safety?  Important public issue at stake?  Nah, this is L.A.

Number one is any case involving a celebrity — 'no matter how minor' — followed closely by a politician.  Death, mutilation, child molestation or animal cruelty are also sure bets.

Terrorism shows up as the tenth item on the list, slightly behind cases representing a "major personal accomplishment for the prosecutor" and not far ahead of cases involving "a truly weird fact pattern."

Roderick reproduces the entire long e-mail -- repetitiously entitled "Improving Communications with the Communications Department" -- which prescribes an elaborate protocol for keeping "'primary points of contact"' within the Communications Department" [formerly the "Press Office"] informed as cases proceed, and concludes with a reminder that it pays to plan ahead, even before bringing charges:

[I]f you have a case that is very likely to attract media attention, such as a celebrity justice case, you may want to obtain guidance from the Communications Department in advance of the filing, arraignment, trial, etc. regarding how to deal with expected press inquiries.

What a wonderful phrase: "Celebrity justice."  Welcome to L.A.

Nintendo has already begun shipping a stronger strap and has offered free replacements to those who bought the hit game with the original strap, but that didn't save it from a would-be class action suit filed by the law firm of Green Welling LLP, claiming to represent all buyers of the device. (Marcus Yam, "Lawsuit Filed Against Nintendo For Defective Wrist Straps", DailyTech, Dec. 20; Consumerist, Dec. 20; Eric Bangeman, "Nintendo sued over Wiimote straps", ArsTechnica, Dec. 19). ArsTechnica previously published a three-part series on class actions and problems with their workings, with an emphasis on tech cases (Nate Anderson, "A look at class-action lawsuits", May 2).

Steve Chapman on attorney general Lockyer's suit against automakers for facilitating carbon emissions:

So serious is the harm from this conduct that Lockyer wants automakers to ... keep doing it. The usual remedy for a public nuisance--say, someone in a residential neighborhood holding raucous parties every night till dawn, or letting vicious dogs run loose--is to stop it. But the state doesn't propose that they quit selling their products to Californians or switch to zero-emission cars. Instead, it asks the manufacturers to turn over large sums of money while continuing to commit their terrible wrongs.

That should be a clue to something Lockyer passes over: While cars may have drawbacks, they also have benefits, and most people would not be willing to give up those benefits or pay a lot more to enjoy them. That combination of virtues and vices makes autos well-suited to regulations reflecting a democratic consensus, and a poor candidate for control by the courts.

Read the whole thing (Chicago Tribune, Dec. 21).

Reader Victor Serby writes, regarding the recent discussion here of baseless pro se suits: "This is the pro se suit that I think takes the cake. It is an oldie, but a goodie. The cite is: 151 F.R.D. 537 (SDNY 1993)".

Via Insurance Journal (Dec. 21), the story of William Fennelly, now sentenced to seven months in jail for perjury committed in support of a fraudulent workers' compensation claim. 

Fennelly claimed to have been totally incapacitated by an on the job back injury, and was collecting benefits from Maine Employers Mutual Insurance Company [MEMIC].  At the same time that he maintained he was unable to work, Fennelly was busily toiling away and collecting wages from several employers as a lobsterman.

As investigators trawled deeper, the truth got murkier.  Not only was Fennelly commercial fishing while collecting workers' compensation, he was also employed at the Town of Lamoine Transfer Station and earned wages as a sternman aboard another boat -- none of which he report to MEMIC, which he was obligated to do by Maine law.

        * * *

Under oath, he repeatedly denied working.  When confronted with Trenton Bridge Lobster Pound records, he said he didn't make 'one penny' and declared he only drove the boat to train an apprentice.  He then testified there was no way to prove earnings because he did not have a bank account due to back child support that he owed.

When a subpoena turned up two bank accounts, one with deposited checks from the lobster pound, a new story of fronting the apprentice with workers' comp money for bait unfolded.  But Fennelly had no answer as to why he deposited a Trenton Bridge check, a MEMIC check and a Town of Lamoine check all on the same day.  And evidence to confirm the apprenticeship story never materialized.

Note that Fennelly was witholding support payments at the same time he lied to the insurer.  An all around upstanding citizen and now a guest of the State, tangled in the net of his own deceptions.

That's the title of a newly published book edited by lawprof Joan Heminway, featured in this podcast from Glenn and Helen Reynolds. I haven't had a chance to see the book itself, but I do like its cover art.

In many if not most cases, lawsuits that are held up to scorn on this site are filed by people who, in their heart of hearts and however misguidedly, believe in the justice of their cause.   Those people can and should be criticized when their cause is misguided, or when it camouflages some other agenda, or when their only real impact is the introduction of unjustified costs, frictions, and obstacles in to the path of valuable and legitimate economic or creative activity (not to mention the unjustified enrichment of a small class of my fellow attorneys). 

Worse than these, though, in many ways, are wealthy and/or powerful egotists who use the legal system on a whim, as their personal payback mechanism or as a means of venting their pettiest grievances.   At the risk of fatally lowering the tone of Overlawyered and of prematurely ending my tenure as a guestblogger, I note the latest example, a tiff between two deeply unpleasant but inescapable self-anointed celebrities: Rosie O'Donnell and Donald Trump (MSNBC, "Trump to Rosie O’Donnell: You’re sued!", Dec. 21).

Earlier this afternoon Trump announced he is filing suit against the TV talk show host. 'She says things that come to her mouth, she’s not smart, she’s crude, she’s ignorant and to be honest I look forward to suing Rosie,' he told our cameras. 'I’m gonna sue her and I look forward to it.  She’s really very dangerous for the show.'

Trump declined to elaborate on the details of his proposed legal filings, but added O’Donnell will understand his reasoning.  'Rosie will find out what we’re suing her for.  She knows what we’re suing her for,' he said adding the lawsuit is already in the works.  'It’s something I look very forward to,' he added.

If ever there was a case for "loser pays," this is it.   Trouble is, with relentlessly meaningless suits like this one gumming up the works, we're all the losers.

Of Related Interest: The scurrilous Los Angeles gossip site, Defamer, has the Trump video from which I have drawn the post title (Dec. 20).   Not that I would recommend watching it, of course.

Courtesy of Michigan Lawsuit-Abuse Watch. And may they recommend their book of wacky warnings, Remove Child Before Folding?

With the revelations of DA Nifong's misconduct coming thick and fast -- the latest being the withholding of exculpatory DNA evidence -- K.C. Johnson asks: where does the Duke law faculty stand in all this? (Dec. 19). More: Reynolds, Cernovich (and here). More: Maimon Schwarzschild, Dec. 29.

Today's WSJ (sub-only) carries a letter from senior fellow Maureen Martin of Chicago's Heartland Institute mentioning this site, and quoting from Greg Dwyer's "letter from a new father" of Nov. 14, all in the course of arguing that a backlash may be afoot against the new food nannyism typified by Mayor Bloomberg's trans fat ban.

• The part of the Zyprexa story the New York Times didn't tell you. [Point of Law; relatedly, Childs]
• 10-2 DC City Council vote: DC businesses who don't want to hire a "rehabilitated" convicted sex offender to work with children (or DC residents who don't want to rent a room to one) can now be sued for punitive damages. WaPo doesn't think this worth mentioning in the newspaper. Thanks, Marion Barry, for making my Arlington condo worth more money! [Open Market blog]
• Of course, not all convicted sex offenders are equal, as the case of a 17-year-old who had consensual oral sex with a 15-year-old shows. That ten-year prison conviction (without parole) would have been a misdemeanor if he had just had intercourse and gotten her pregnant. [Bashman roundup; Volokh; Berman]
• Tradeoffs and scarcity: why medical safety isn't as easy as it seems. [Point of Law; Kevin MD]
• Jury's lack of smoking break not reason to undo death penalty. [AP/law.com]
• I know I stocked up on Sudafed when they changed the law. It's worse for allergy sufferers with kids below 18. [WQAD; Fisher @ WaPo]
• Murnane on the judicial hellholes report. [Illinois Justice]
• Remember when those left-wing groups tell you about how profitable insurance companies are, and thus need more regulation? They somehow forget the most highly regulated category, Florida homeowners' insurance. Which, not coincidentally, is high-priced, loses money, and increasingly taxpayer subsidized as private industry flees. [Risk Prof]
• "We're trying to figure out what changes we can make, short of putting up signs saying, 'Don't put your baby through the X-ray machine.'" [LA Times]
• Blogger doc: $4M/breast is too high, even in Florida [Docsurg]
• No, a semicolon in your middle name doesn't grant you magical legal properties. [Above the Law]
• Word limits and law school exams. [Above the Law]
• Milton Friedman and General Pinochet. [Reason]
• “This is the painful part,” he said. “Sometimes you do everything right in neurosurgery and the patient doesn’t do well.” No lawsuits in this story, just interesting medicine. [NYT]
• With only 17 "fascinating"s in 3.5 years, Overlawyered is more selective than Volokh or Prawfsblawg. [Still Angry]
• Overlawyered and Walter get a shout-out in an article about the top ten insurance cases of the year. [Mealey's]

The Oklahoma legislature, following the lead of a number of other states, attempted to limit unfounded claims for medical malpractice by mandating that all med mal suits be accompanied by an expert's affidavit stating the expert's opinion that the claim possesses merit.  The Oklahoma Supreme Court has now declared that requirement to be unconstitutional.  (See Business Insurance, "Okla. Expert Opinion Law Rules Unconstitutional", Dec. 20).

The Court states two grounds for its conclusion. First, the Oklahoma Constitution bars the legislature from adopting "special laws" in which different members of the same class are treated differently.  The Court concludes that the affidavit of merit requirement distinguishes medical negligence claims from all other negligence claims, in violation of the "special law" prohibition.  Second, the Court concludes that requiring potential med mal plaintiffs to bear the expense of obtaining a medical expert's pre-litigation opinion -- the Court estimates it to be between $500 to $5,000 -- creates an economic bar at the courthouse door that impedes less wealthy claimants' access to redress, thus depriving them of due process of law.

The court's opinion in Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., Oklahoma Supreme Court, No. 102472 (Decided Dec. 19, 2006) -- which is not quite final and official as of this writing -- is accessible through the Court's website, here.

In 1995, 70-year old Marlene Fett pressed the wrong pedal on her Lincoln Town Car, and smashed into a carousel in front of an Arkansas Wal-Mart, killing one boy and severely injuring his brother. The Chapman family settled with Fett, and blamed Wal-Mart and Ford, Wal-Mart on a theory that it should have anticipated the possibility of a car hitting a merry-go-round at 30 mph, and Ford on that old plaintiffs' lawyer claim of "sudden acceleration," a "defect" that somehow is six times more likely to strike elderly drivers. The case made the front page of USA Today in 2004 (resulting in an Apr. 19, 2004 Overlawyered story), though the newspaper kindly noted the lack of science behind the claim:

Little Rock attorney Sandy McMath, who is representing the Chapmans, says the Town Car's cruise control put Fett on a "rocket ship to Mars" after she pulled out of her parking place. He petitioned NHTSA to investigate what he says is a defect in Ford and Lincoln models' cruise control that causes the accelerator to stick.

In a lengthy 1999 [sic] report denying McMath's petition, NHTSA investigator Bob Young wrote that even if such an occurrence took place and didn't leave evidence of a mechanical malfunction, the situation should be reproducible through in-vehicle and laboratory tests. None of NHTSA's testing could do so.

The Wal-Mart theory was similarly bogus, and refuted when an expert demonstrated that the plaintiffs' proposed safety measure wouldn't have stopped the speeding car. (For Illinois' take on premises liability for auto accidents: Jun. 23.) An Arkansas jury also rejected the claims, and, after years of litigation, now the Arkansas Supreme Court has affirmed that decision in a not-especially-interesting Dec. 14 opinion, Chapman v. Ford Motor Co. Wal-Mart and Ford are still out the hundreds of thousands of dollars they spent defending themselves in the lottery litigation, not to mention the cost of bad publicity from sudden acceleration claims and quacks like the Center for Auto Safety trumpeting a non-existent problem. Arkansas acquits itself better than a South Carolina federal court did in a story we covered Aug. 7.

Jacob Sullum points (Dec. 19) to a New York Times op-ed piece (Dec. 19) by Marc Maurer questioning the recent decision (last mentioned here by Walter Olson on Dec. 17) holding that U.S. paper currency discriminates against blind money-users.  As Sullum notes:

The piece is puzzling because Maurer is the president of the National Federation of the Blind, which is suing Target for failing to make its website easily accessible to blind people.  Maurer calls the currency case, which is supported by the American Council of the Blind, 'frivolous litigation' while characterizing his group's Target lawsuit as a straightforward application of the nondiscrimination principle.

Eye of the beholder, indeed.

What red blooded Overlawyered reader could possibly resist that headline?  Certainly not you.

Details at the Legal Reader (Dec. 18, link via The Southern California Law Blog).

The recent decision by News Corp. publishing subsidiary HarperCollins to cancel the publication of O.J. Simpson's no-tell tell-all If I Did It is generating ripple upon ripple of actual and threatened litigation.  Last Friday, Dec. 15, News Corp. summarily fired Judith Regan, who made the Simpson deal and who would have published the book under her Regan Books imprint.  Notwithstanding her personal responsibility for one of the great debacles of contemporary media, Regan maintains she is the wronged party in the firing and has hired high-profile Hollywood lawyer Bert Fields to take on her former employers.

The Wall Street Journal (Dec. 18 - article is available to non-subscribers) reported yesterday:

But Ms. Regan is fighting back, hiring well-known Hollywood litigator Bert Fields.  'They've chosen war and they will get exactly that,' said Mr. Fields in an interview.  'She won't take this lying down.'

Mr. Fields said HarperCollins had used guards to lock down Ms. Regan's office and had also impounded her personal belongings.  'We'll take appropriate action for everything HarperCollins has done,' added Mr. Fields.  'They chose this path and I hope they remember it.'  A HarperCollins spokesman said that Ms. Regan collected her personal belongings before leaving her office in Los Angeles and that her office in New York wasn't locked and that her belongings weren't impounded.

* * *

[T]his past week, tensions flared, although details are still sketchy.  One scenario has it that Ms. Regan made some intemperate remarks to a HarperCollins attorney on Friday afternoon, causing Ms. Friedman to fire her.  The termination was executed with none of the usual corporate pleasantries about "pursuing other opportunities" and long years of service.

In an intriguing sidelight, the WSJ's Law Blog (Dec. 18) reports that attorney Fields is, or fancies himself, a Shakespeare scholar and has had two books published on Shakespearean subjects . . . through the Regan Books imprint.  (Oh no, no potential conflicts of interest there; let's just move along.)

Fields is perhaps best known as the bane of the Walt Disney Company: he represented Jeffrey Katzenberg in the now-settled litigation arising from Katzenberg's departure from the company, he was consulted by the Weinstein brothers of Miramax when their relationship with Disney cooled, and he has featured prominently in the seemingly never-ending dispute over the rights to Winnie the Pooh.  He has also been a subject of interest, but has not been the object of any criminal charges, in the investigations surrounding wiretapping and other alleged misdeeds by "private investigator to the stars" Anthony Pellicano.

News Corp., in preparing to respond to Regan's and Fields' accusations, has taken the unusual step of disclosing the content of otherwise confidential notes taken by one of its own attorneys.  Those notes purport to reveal anti-Semitic remarks made by Regan and claimed by News Corp. to have been the "last straw" leading to Regan's firing.  (See New York Times, Dec. 19).

Meanwhile, ABC News (Dec. 18, via the publishing weblog GalleyCat) reports that Regan and others at Regan Books, HarperCollins and News Corp. will likely either be named as defendants or at the very least have their depositions taken on behalf of the heirs of Ronald Goldman, who continue to attempt to collect on their civil wrongful death judgment against Simpson.  The Goldman family sees the entire transaction as a further attempt to hide Simpson's assets:

The lawsuit would likely be based on the legal premise of 'fraudulent transfer,' which in this case would contend that News Corp. executives knowingly conspired to assist Simpson in subverting a civil judgment against him.

And so the saga continues, with only the lawyers -- and Simpson -- seeming to gain from it.

~~~

UPDATE: The Smoking Gun (Dec. 19) has posted a copy of the Goldman lawsuit, to be filed in U.S. District Court in Los Angeles and naming as defendants Simpson and Lorraine Brooke Associates, a corporation created (per the Complaint) to "warehouse Simpson's intellectual property rights" and to serve as a conduit through which proceeds of those rights might be funneled to evade the Goldman judgment.

Hello.  My name is George, and I am a weblogging lawyer.  I would like to take this occasion to thank Walter Olson for the opportunity to guestblog this week at Overlawyered.  I will be posting starting today -- I have two posts below and more in the hopper -- and will continue here through next Monday (ho ho ho).  Beginning next Tuesday, December 26, Walter promises two special guests who will step in and post you through to the new year.

I am one half of a two-man law firm in Pasadena, California, and I reached my 25th year in practice earlier this month.  That practice has emphasized insurance law (representing both insurers and insureds), professional liability defense (representing veterinarians), general business litigation and civil appeals.  I am more of a "law-lawyer" than a "fact-lawyer," generally happier writing and arguing motions and appeals than in showing off for a jury.

For the past three and a half years, I have maintained two weblogs of my own.  Declarations and Exclusions is devoted to "News and Comment on California Insurance Law, the Politics of Insurance, and Other Risky Business."  My non-law-related interests are vented through a fool in the forest, where I write about books, music, art, poetry, random nonsense, and culture both high and low.

Again, I offer profuse thanks to Walter and to all at Overlawyered, and thanks in advance to Overlawyered readers.  I hope to contribute at least a little something worthwhile to the ongoing conversation on law and personal responsibility over the next seven days.

A doctor who is a Metafilter poster analyzed photos of a famous top-gun celebrity (who is a recent father) and speculated that, because the actor had only three incisors, the middle one of which was "freakishly wide", he might suffer from holoprosencephaly, a genetic defect that can lead to stillborn babies, and in "its more severe manifestions can lead to cyclopia, fusion of the frontal lobes, a primitive proboscis instead of a nose (located above the fusion eyeball), and other grisly abnormalities." (Further evidence for the hypothesis: "his biological father was mildly retarded and beat him severely as a child. Mild retardation, with or without violent behaviors, can also be part of an incomplete holoprosencephaly syndrome.") The maverick celebrity apparently had lawyers let Metafilter know that it would be risky business to keep the post up. Perhaps fearing collateral damage from a cocktail of litigation or a war of the entertainment and Internet worlds, Metafilter apparently acceded to the request to remove the speculative post rather than let a few good men be subject to an onslaught of lawyers (h/t).

Update: The commissar vanishes: even the Metafilter meta-post is down now, as is discussion about that removal. Googling reveals other discussion.

Mary Brzyski worked for Skidmore Inc., in East Aurora, NY, where she drove a company car that was leased from Chrysler. In 2003, Brzyski loaned the car to her 19-year-old son, Andrew, who rear-ended Jason Lapp's car, severely injuring him. Longtime readers know what happened next. Irrational New York law (Jul. 14, 2003, Apr. 2, 2004, Feb. 2, 2005) holds the lessor liable, even when, as here, they are three transactions away and never anticipated that a 19-year-old would be driving the car. Skidmore and Chrysler have settled for $8.2 million. ("$8.2 million settlement accepted in crash suit", Buffalo News, Dec. 15). Congress has stepped in to the breach (Aug. 4, 2005), at least until the litigation lobby undoes that reform.

AP reports (Dec. 17 -- via the Las Vegas Sun and Insurance Journal) on a new suit in Florida seeking compensation for coin collectors allegedly duped by application of the designation "first strike" to collectible coins: 

[S]ome collectors say the label is misleading and that the coins aren't special at all.  Now, a Miami attorney has filed class-action federal lawsuits on behalf of potentially thousands of collectors claiming that the "first strike'' designation is unfair and deceptive.  More than $10 million in damages could be at stake.

'Basically, what we are saying is that it's impossible to know which coin is the "first strike,"'' said attorney Charles Lipcon, who filed the lawsuits on behalf of collector Thomas Francisco and others.  'People are paying a lot of money and not getting a better coin. Really, there's no difference between those coins and any other coins.''

Named defendants are two leading coin sellers, Numismatic Guaranty Corp., of Sarasota, Florida, and Professional Coin Grading Service of Newport Beach, California.  Their spokespersons maintain that the companies' definitions of "first strike" are clear, acccurate and reasonable.  The $10 Million valuation of the claims comes from the plaintiff's attorneys, and is based on the assumption that the U.S. District Court will grant class action status to the case.

The story makes clear that any knowledgeable collector should know that "first strike" status is by and large an abstract concept: it is "first strike" because people say it is "first strike," with little or no objective correlation to the physical quality of the coin in question.  In essence, the potential class plaintiffs are disappointed because they have lost the opportunity to share with others -- or, more likely, collect a premium resale price from others for -- the essentially imaginary extra value that the words "first strike" carry with them.

The suit is a change of pace for the plaintiff's counsel, the Miami firm of Lipcon, Margulies & Alsina, whose website emphasizes their specialty in bringing suits against cruise lines.

Insurance Journal reports that the Florida Supreme Court has rejected an attempt by seasonal residents to apply more favorable Florida rules to their claims under non-Florida auto insurance policies:

'Snowbirds'' and other part-time Florida residents who insure their cars back home cannot make claims under Florida laws that may be more favorable to them than those in their own states, the state Supreme Court has ruled.

* * *

'Although Florida welcomes its many visitors, whether for short or extended stays, we cannot rewrite their out-of-state contracts,' Justice Raoul Cantero wrote for the high court.

The decision will prevent Lake Wales residents Thomas and Margaret Roach, who were injured in 2001 while riding in a neighboring couple's Indiana-insured car, from suing State Farm for underinsured motorist compensation under Florida law.

Indiana law would prohibit them from recovering because it permits an offset of underinsured motorist coverage against claims paid under other types of coverage.  Florida law does not permit offsets.

Interested readers can view the full Opinion [PDF] in State Farm Mutual Ins. Co. v. Roach, Case No. SC04-1313 (Dec. 14, 2006).

Highlights Hair Salon owner Eric Zahm sympathized with workers seeking to form a union at the Santa Barbara News-Press, so he put a sign in his window reading "McCaw Obey the Law", referring to the paper's owner, Wendy McCaw. Next thing you know, McCaw's lawyer, Barry Cappello, fired off a letter to Zahm threatening "appropriate action" if the sign were not taken down, on the grounds that the sign's message exposed his client to "hatred, contempt and ridicule." Zahm caved in for fear of a suit and took down the sign. So much for the notion that all newspaper magnates are devotees of freedom of speech (Matt Cota, "Santa Barbara News-Press Owner Threatens Hair Stylist Over Sign", KSBY, Dec. 15).

More: In the comments, reader "imafish" alerts us to another lawsuit in which Ampersand Publishing LLC, which publishes the News-Press, has sued reporter Susan Paterno, claiming that an article she wrote about the newspaper in the American Journalism Review was a "biased, false and misleading diatribe"; charging her with libel and product disparagement, it asks unspecified compensatory and punitive damages. (Greg Risling, "Publisher Sues Reporter Over Story", AP/Newsday, Dec. 19).

More than $100 million in professional fees has been billed so far in the auto-parts maker's insolvency. (Lattman, Dec. 14).

Via the District of New Jersey, please find attached the order dismissing the case in Ward v. Arm & Hammer [sic], 341 F.Supp.2d 499 (2004): no, a baking soda manufacturer has no legal duty to warn users that using baking soda to cook crack cocaine is illegal. (See David Lat's blog for the complaint.)

We can still find something to complain about, though: the district court has the power under 28 U.S.C. § 1915 to dismiss the case sua sponte as frivolous, which this case was in even the most narrow and technical senses of the word, or even just to dismiss the case for failure to state a claim without waiting for briefing. Church & Dwight Co., the makers of Arm & Hammer, was forced to retain Morgan, Lewis & Bockius to file multiple briefs in the federal court at not inconsiderable expense to rid itself of this nuisance suit.

More on product liability, including many successful cases not much less wacky than this one, on our product liability page.

Update: The post originally protested the granting of in forma pauperis status; David Giacalone correctly points out in the comments that IFP status is automatic without a showing of bad faith, and that my complaint was with the failure of the court to exercise its sua sponte powers to dismiss. I've corrected the post accordingly.

Over the coming holidays we're expecting no fewer than three guestbloggers to join us, each of them an experienced blogger new to posting on this site. Drop by tomorrow to see who's the first.

One inexperienced, grandstanding or lackadaisical lawyer can foul things up. Two can make life unbearable. A few months ago — through a long, hot August — two lawyers jousted over the sale of a Sutton Place two-bedroom listed for $1.375 million, even though the buyer and seller had already agreed on a price. “Literally from the moment these two attorneys made contact,” said Joan Sacks, an associate broker at Stribling & Associates, “there were sparks.”

The lawyers’ conflagration baffled and shocked Ms. Sacks, who was representing the seller.

“There were fiery e-mails shooting between attorneys that stopped short of saying, ‘You’re a moron.’ I was trying to step in as peacemaker and say: ‘Let’s keep the deal together, boys. Let’s stay on track, let’s stay focused.’ It got to the point where it wasn’t about the deal anymore. It was about who was going to win — who was going to make the other appear to be so dumb that they would come out with some banner on their back saying they were the smartest attorney in town.”

Before the contract could be signed, brokers for both sides swooped in and deposited their clients alone together in the Sutton Place apartment.

“When they finally spoke, the intensity was defused,” Ms. Sacks said. “I think the buyer and seller were very reasonable. It’s just that sticking points that shouldn’t have existed at all were intensified as issues by the attorneys.”

Third week in a row the Sunday Real Estate section in the Times highlighted lawyer-caused problems; if only the News and Business section reporters were to take lessons. (Teri Karush Rogers, "How Not to Scare Off Buyers", NY Times, Dec. 17).

December 18 isn't a typical day for new-product announcements, but Linksys announced a new VOIP phone today. The timing makes more sense when one realizes that Apple was about to announce an iPod-compatible cell phone in January, a product that was widely called "iPhone" in the press, but that Linksys owned the "iPhone" trademark since 1996. But without a product using the trademark, Linksys would not have been able to hold on to the name. By preempting the name, Linksys will either be able to extract rents from Apple on a now valuable trademark or force Apple to spend millions creating a new name for the product that doesn't have the advantage of the brand extension from Apple's "iMac" and "iPod." ("The Working Guy" blog; Gizmodo blog (and followup ) (h/t WF)).

(Earlier: May 2; Apr. 27.)

Company supervisors, who often administered the spankings, testified in April that [Janet] Orlando was a willing participant in the team-building exercises and that she never complained about being spanked. They said she quit because she was passed over for a promotion.

An attorney representing the company likened the activities to old-fashioned fraternity hazing and said they were not meant to harm anyone.

But a jury sided with Orlando and awarded her $1.7 million — of which Orlando was to receive $800,000.

After Alarm One filed an appeal, Orlando agreed to settle the case for $1.4 million.

Except now, Orlando's lawyer claims, the insurer has backed out of the settlement (the insurer refused to comment, so the press has only one side to report), so he's seeking to leverage this alleged refusal to pay into a $5.6 million bad-faith award. As for Orlando herself, she blames a recent shoplifting arrest and no-contest plea (her third in three years) on stress from the dispute and newfound fame. Also left unexplained by the story: how it came to be that Orlando was to receive less than half of her award, with the majority going to her lawyer. (Chris Collins, "Award in spanking suit going unpaid", Fresno Bee, Dec. 14).

It's not going to wind up helping patients, argue two letter writers in Portland's Oregonian (Dec. 1)(via KevinMD). Leonard Berlin, M.D., thinks providers do not always give the public a realistic view of the benefits and limitations of cancer screening ("A Manifesto for Truth-in-Mammography Advertising", Imaging Economics, Nov. 2004).

An outfit called Oasis Legal Finance wants your business.

Thought for the day: "Unlike love, more law does not make the world a better place." (Gary Slapper, Times Online (UK), Dec. 11).

The Treasury Department is appealing U.S. District Judge James Robertson's ruling (Nov. 29) that it's unlawful for the nation's paper currency not to be redesigned in ways that would make it more easily used by the visually handicapped. ("Feds Say No To Blind-Friendly Paper Money", AP/CBSNews.com, Dec. 12). The Gimp Parade (Dec. 16) rounds up lots of links on the controversy.

Loser-pays is alas the exception in our system, but it does have its moments: after a judge declared unconstitutional a law in the state of Illinois attempting to ban the sale of violent videogames to minors, U.S. District Judge Matthew Kennelly ordered the state to pay $510,250 in legal fees to the game sellers, and it seems Kennelly meant business, since he has announced "the time for waffling has passed" as to the state's coming up with payment. (John O'Connor, "Judge wants legal-fee payment plan from Blagojevich", AP/Chicago Tribune, Dec. 11; Mark Whiting, 1up.com, Dec. 12; Slashdot, Dec. 13 and comment thread at Slashdot which mentions us and includes some discussion of loser-pays generally.

Business Week is urging us all to take seriously a lawsuit by IBM employee James Pacenza of East Fishkill, N.Y., sacked for improper internet use at work. Pacenza's attorney has filed a $5 million wrongful-termination suit and is advancing web-addiction theories/excuses for his client. Business Week quotes various sources who are eager to predict some sort of emergent legal status for internet addiction -- maybe as a covered condition under the Americans with Disabilities Act -- but it all still seems pretty unlikely to me. (Catherine Holahan, "Virtually Addicted", Dec. 14). On "BlackBerry addiction", see Oct. 2, etc.

• Pro se suit against baking soda manufacturer for failing to warn that baking crack is illegal. [Lat]
• Plaintiffs' expert: when you asked for the documents I reviewed, I thought you meant the documents I viewed twice. Judge doesn't buy it. [Lattman; Des Moines Register]
• Judges stymie popular will in California death penalty cases. [The Recorder; Will @ WaPo]
• And coincidental update of breaking news: California federal judge strikes down all lethal injections in state. [Bashman roundup]
• Via Hans Bader, but not on-line or covered in the mainstream press: DC City Council considering amendment to Human Rights Act barring employment discrimination against ex-convicts. Ex-convict Marion Barry is the sponsor; business community strangely silent. [Legal Times ($)]
• Virginia plaintiff's attempt at milk regulation through litigation blocked. Lawyers shamelessly promise to forum-shop. [WaPo]
• UK insult to injury: adulterer has right to prevent cuckolded husband from writing about affair. [Bashman roundup]
• Florida Supreme Court stumbles onto a correct answer: no litigation tourism for "snowbirds." [AP; State Farm v. Roach]
• Has the Federal Circuit emasculated the "obviousness" rule? An argument that it has. [The American]
• Wonder how those "bad toy" lists get generated? [Point of Law]
• More on the "Coercive Abortion Bills" in Michigan, which passed the House, and threaten to criminalize men who end relationships with pregnant women. [Fox News]
• Lawsuit: please bar publication of yearbook unless it includes photo of my son wearing chain-mail and a sword. [Krauss @ POL]
• Should we be afraid of hedge funds? [Marginal Revolution]
• Peter Huber on the emphasis of glue over learning in school. [Forbes]
• Judge Posner to "furry": "Your tail is great." [NWN blog; Eminent Domain blog via Bashman]
• A commenter here suggested that certain little-read websites are attacking us just to generate traffic. I'm beginning to believe it what with three different writers posting in the last 36 hours attacking me and sometimes Walter, with insults and arguments in varying combinations of baseless, sloppy, and thoughtless. So, while I'm happy to engage thoughtful analysis, no link or response here, since doing so just seems to create perverse incentives, not to mention takes away time from meaningful writing.
• As contrast: Peter Nordberg critiques posts by me and Walter on the rollover suit and cigarette polonium, as well as interesting posts by Bill Childs and Derek Lowe on the torcetrapib withdrawal. [Blog 702]

Trial lawyers have pointed to Warren Buffett's purchase of medical-malpractice insurer GE Medical Protective as evidence that medical malpractice insurance is profitable (e.g., this comment thread). Of course, there are two factors to Berkshire Hathaway's high profitability, both ability to improve the business through sound management and ability to obtain assets cheaply—and it's possible Buffett bought the now-named MedPro from General Electric because the latter was selling the business on the cheap to get out of insurance.

Of course, if there are inefficiencies in medical malpractice insurance, Buffett is as likely to find them as anyone: the profit motive gives him every incentive to. So what does his MedPro say about the "we need caps" vs. "it's insurers' fault" debate over malpractice insurance prices? Here's what they said in response to the Wisconsin Supreme Court's appalling decision to strike down caps:

Bob Spagat, an employment lawyer in the Winston & Strawn San Francisco office, perhaps following the footsteps of Gerald Skoning's list, "pay tribute to court opinions that 'score high on the list of cases you hate to have to explain to your client.'” The Ninth Circuit, unsurprisingly, owns the category. Overlawyered readers have already seen several of the nominees:

• Dark v. Curry County, Dec. 6, where a man prone to epileptic seizures had a cause of action for being fired from heavy equipment operation;


• Syverson v. IBM, where the Ninth Circuit invalidated the freedom to contract to standard release agreements, which now have to meet a Golidlocks standard of not too complicated, but not too simple either.


• Jespersen v. Harrah’s Operating Co., where some judges were willing to hold a casino liable for a makeup requirement.

The winner? Josephs v. Pac Bell, where Pac Bell won summary judgment on a claim that it illegally fired a worker who lied about his criminal history—but was held to have broken the law for refusing to hire him back. This raises American employment law to the level of self-parody (though Canada is chasing us). Matthew Hirsch quotes Spagat on Josephs:“This case stands for the proposition that it doesn’t matter what the facts are, you should always think to settle a case before it gets to the Ninth Circuit.”

The British Medical Journal, already well established as a source of policy recommendations noxious to individual liberty, is at it again:

Clothes made in larger sizes should carry a tag with an obesity helpline number, health specialists have suggested. Sweets and snacks should not be permitted near checkouts, new roads should not be built unless they include cycle lanes and food likely to make people fat should be taxed, they say in a checklist of what we might “reasonably do” to deal with obesity.

As we have had occasion to note in the past, the home of Ben Franklin has somehow wound up as a place where newspapers are unusually vulnerable to intimidation by the threat of lawsuit (see Mar. 16, 2004, Nov. 21, 2006, etc.). Paul Carpenter, the excellent columnist with the Allentown Morning Call, sheds a bit of light on a case with which he was personally involved, Bufalino v. Associated Press (692 F.2d 266 (2d Cir.1982)). ("Small newspaper leads the way against bullies", Nov. 26).

A letter from the La Vega Independent School District warned DaMarcus Blackwell that his son was involved in "inappropriate physical behavior interpreted as sexual contact and/or sexual harassment" after the boy hugged a teacher’s aide and "rubbed his face in the chest of (the) female employee". The boy was four years old at the time. (Emily Ingram, "Hug lands 4-year-old in suspension", Waco Tribune-Herald, Dec. 10; Volokh, Dec. 12).

• Ford wins an Explorer rollover lawsuit brought by family of unseatbelted accident victim, but press coverage is skimpy. [Detroit News]
• Milberg Weiss's claims for $12 million in fees viewed skeptically, cut in half. [Lattman; WSJ]
• Dog food prank plaintiff Tennie Pierce is "the O.J. of the Fire Department." Contrary to what one may think, this is apparently meant as a compliment, suggesting a racial divide that can't be entirely attributable to whites. [LA Times]
• SDNY Clinton appointee Judge Scheindlin thinks she's smarter than Judge Easterbrook, throws pension law into mess again. See POL Nov. 12 and Aug. 8 for background. [Business Insurance; Cooper v. IBM]
• Nifong gets around to releasing DNA results that appear to exonerate indicted Duke lacrosse players. Earlier: Oct. 12, etc. [AP/ABC News]
• Judge won't censor Borat DVD, but frat-boy lawsuit goes forward. [Reuters]
• Criminal speeds away from DC police, hits innocent motorist, DC taxpayers liable for $1M. [WaPo]
• Similarly: negligent driver veers across three lanes of highway traffic into oncoming vehicle, killing 18-year old; taxpayers liable for $2M because SUV was able to smash through the median. [AP/King County Journal]
• Today's Ninth Circuit Follies edition: lawless reopening of final sentences. [Kerr @ Volokh; Bashman; Carrington v. US; Lat]
• Robert Ramsey files two more lawsuits claiming simultaneous asbestosis and silicosis in Madison County against several dozen defendants. [Madison County Record]
• UK: 100-pound fine for misfiling trash. [Market Center Blog via Overcriminalized]
• Inhofe's take on global warming. [Senate]
• Trial lawyer puts money where his mouth is. Check back in ten years to see whether it's lawyers or insurers who are really at fault for medmal insurance crisis. [Point of Law]
• I blame the fact I joined Friendster for this. [PrawfsBlawg]

Discussed at Althouse (Dec. 13).

"For the first time in more than 250 years, children will not be allowed to carry candles at a cathedral service in case their hair catches fire. There is no record of a child going up in flames since the Christingle service began at Chelmsford Cathedral in 1747. However, children this year will carry fluorescent glow sticks rather than the traditional candles set in oranges." (David Sapsted, Telegraph, Dec. 12).

Betty Potter, who weighed 230 pounds, was driving her Ford Escort in the rain on bald tires, lost control of her car, and collided backwards into a tree at 30 mph. Her seatback collapsed in the impact, rendering her paraplegic when her head hit the back seat. She was allowed to argue to a jury that the design was "defective" even though her lawyers could not identify an alternative design that would have prevented the harm; Ford was held 70% liable for $10 million in damages. The Tennessee Court of Appeals affirmed the state trial court verdict. Of course, it's impossible to design seatbacks to handle all conceivable combinations of collision direction and driver sizes; as the plaintiffs' expert admitted, using a rigid seatback instead of a yielding seatback to withstand this sort of collision makes other types of injuries much more likely, and low-speed collisions where the yielding seatback has benefits are far more likely than high-speed collisions. The jury (and Tennessee court) is essentially punishing Ford for failing to have perfect foresight in matching its cars with the accidents the cars' drivers will have. (Potter v. Ford Motor Co.; concurring opinion; via Products Liability Prof. Blog).

In other rigid v. yielding seatback lawsuit news, the Illinois Court of Appeals released on the web the Mikolajczyk v. Ford Motor Co. opinion for the case we discussed Dec. 1, 2006 and March 21, 2005. The same issues apply in that case, except there, the accident was caused by a drunk driver plowing into the back of a stopped car at over 60 mph.

Jim Copland writes that the $500 per car figure comes from Murray Mackay's article, "Liability, Safety, and Innovation in the Automotive Industry" in The Liability Maze (p.199):

"In researching this paper, I persistently asked manufacturers what the cost and consequences of the rise in liability have been. In simple financial terms the answers have varied by a factor of ten, ranging from $50 to $500 per car sold." The variance may suggest that the $500 figure is on the high side; but Mackay indicates that the costs seem to be much higher for domestic manufacturers than for importers, which may be why Chrysler sticks to the higher number. Steve Hantler, DaimlerChrysler's assistant general counsel, tells me that the $500 estimate, being 15 years out of date, is itself probably low; he suggests that today's liability cost is closer to $1000 per car.

The annual ATRA report is out; here's the press release and executive summary; the PDF of the full report doesn't appear to be on line yet.

Some follow-up observations about the Ford Bronco $31 million verdict post.

1. South Carolina is one of the few states that has the pure form of the doctrine of "joint and several liability", under which any deep-pocket defendant is 100% liable even if they're only found 1% at fault. Thirty-seven states have enacted some limits on this, but South Carolina has not. Such a legal system creates incentives to find the deepest pocket and attach a shred of fault to them so that they are held entirely responsible for the consequences of others.

2. I've read several plaintiffs' briefs arguing for upholding similar verdicts, as well as submissions made to NHTSA arguing that certain vehicles are "too prone" to roll over. They essentially come down to requests to ban SUVs: every SUV faces accusations of being "too prone to roll over."

SUVs are designed to have high clearance to traverse rugged terrain. This raises the center of gravity and affects the handling: it's a known tradeoff of the laws of physics. There are a wide variety of tests of varying degrees of scientific merit one can use to suggest a vehicle is "too prone" to roll over, and plaintiffs have the benefit of cherry-picking which tests to apply to which vehicles. You'll find lots of lawyers complaining that the Bronco II allegedly responded poorly in "J-turn tests", where the steering wheel is turned 330 degrees in one third of a second and held there for another 4.67 seconds. Ford designed the Explorer to pass the J-turn test to take away this claim, and the trial lawyers started using different methodologies to claim that the Explorer was too prone to roll over.

Empirically, however, the Bronco doesn't roll over more than several other SUVs on the market, which is why NHTSA, in both the Bush I and Clinton administrations, refused to recall the Bronco when the plaintiffs' bar asked it to. When I say Ford was held liable for producing an SUV, I'm not spinning: it was because it was held liable for producing an SUV.

Moreover, a vehicle should be viewed in totality: an auto that is more likely to roll over may be safer in other particulars that more than compensate for that increased propensity. So I question the premise. One can't change the rollover propensity without creating a different vehicle entirely. The vehicle should be viewed holistically, and holistically, the Bronco is a safe car when used as designed.

Perhaps we as a society would be better off taking the nanny-state step of banning SUVs, forbidding people from wildnerness driving because too many drivers don't know how to drive SUVs in highway conditions, but that's a decision that not only would end the American auto industry, but should be made other than by a 12-person jury of laypeople. This vehicle rolled over because the driver drove off the road.

3. The ultimate cost is borne not by Ford, but by the rest of us: lawsuits like this add $500 to the price of every American car. You and I can't go to the car manufacturer and get a cheaper car by promising not to be as stupid a driver as this one was. So careful drivers are subsidizing careless ones.

4. It's unlikely that the $500 applies equally to expensive and cheap cars, but not in the manner you think: (1) the less expensive car is more likely to be driven longer and more often and with more carpooling passengers; (2) less likely to have expensive top-of-the-line safety features that haven't yet become standard and thus more likely to be sued over the lack of those features; and (3) more likely to be sold in such a volume that trial lawyers have put together a cheap package targeting the vehicle for lawsuit in the hopes of achieving economies of scale by targeting a lot of potential plaintiffs. (There will never be a mass tort for a Rolls Royce, for example—not enough of them are sold.) Note that the plaintiffs' bar puts profits before people: they look at the costs and benefits of bringing suit, and target the most profitable vehicles to sue over, rather than the most dangerous ones, which is why the Ford Pinto is notorious and the VW Beetle (whose designers were so inconsiderate to write their memos in German instead of cheap-to-analyze English), which killed people at a much higher rate, is remembered with fond nostalgia.

So average liability is, if anything, higher for cheap cars than expensive cars; the $500 figure (which comes directly from the president of Chrysler) is probably higher for cheap cars and lower for expensive cars, and perhaps close to zero for the Rolls.

U.S. District Judge Denny Chin of Manhattan has dismissed (ruling, PDF) a lawsuit against the Atkins diet people by Jody Gorran, who says after subsisting on pastrami and cheesecake while on the high-fat, low-carb diet he saw his cholesterol spike and underwent an angioplasty. Judge Chin said the hazards of those foodstuffs were well known and that dietary advice, even when accompanied by a commercial motivation, is protected by the First Amendment. (Larry Neumeister, "NY judge finds 1st Amendment protects Atkins diet against lawsuit", AP/Staten Island Advance, Dec. 11) (via Lattman).

In two separate cases, federal judges have rejected high-profile but long-shot claims by Indian tribes asserting ownership of land tracts in the Northeast. U.S. District Court Judge Thomas C. Platt said the Shinnecock tribe of Long Island, New York (see Jun. 13, Jun. 19 and Jun. 27, 2005), had forfeited its potential claim on 3,600 acres of high-value land in the Hamptons by waiting more than 140 years to assert possession. (John Moreno Gonzales, "Ruling aside, tribe plans to build casino", Newsday, Dec. 5; "Judge cites passage of time in Shinnecock land claim", Indianz.com, Dec. 6; ruling in PDF format courtesy Indianz.com). And in New Haven, U.S. District Court Judge Janet Bond Arterton brought homeowners' ordeal nearer an end Nov. 29 by ruling against the federally unrecognized group that calls itself the Golden Hill Paugussetts, which has been asserting land claims in various Connecticut towns for 14 years. (Gale Courey Toensing, "Golden Hill Paugussetts will appeal rejected land claims", Indian Country Today, Dec. 11).

If you were ever so worried about the report by plaintiffs' for-hire expert Robert Proctor's NYT criticism of cigarettes for containing that trendy isotope, Polonium-210, Australian blogger C. Magee notes that a single banana is 9000 times more radioactive than a cigarette (via Hutchinson), concluding "There are plenty of sound reasons to discourage smoking; we don't need to discard them for sensationalized scare tactics."

Update: Walter beat me to this on POL last week, finding two other blogger refutations.

In May 2001, Cheryl Jane Hale was driving four children to a sleepover in her 1987 Ford Bronco. She didn't bother to have the children wear their seat belts, so, when she took her eyes off the road to argue with the backseat passengers, and thus drove off the road and flipped the car, 12-year-old Jesse Branham was thrown from the car and suffered brain damage. A jury in Hampton County, South Carolina (the second jury to be impaneled—the first one was dismissed in a mistrial when it was discovered after two weeks of trial that five of the jurors were former clients of Branham's lawyers) decided that this was only 45% Hale's fault, held Ford 55% responsible, which puts Ford entirely on the hook for $31 million in damages. (It's unclear how injured Branham is: the story mentions that he's given up athletic dreams and has memory problems, and his father said he worries Branham can't hold a job, but Branham also has "average grades" in his high school. So either Branham's injuries aren't that severe and have been exaggerated for trial, or the average high school student in Hampton County exhibits signs of brain damage, or "average" is a euphemism for "below average," a la Lake Wobegon.) Ford will appeal. Cases brought against Ford by Hale and the other three passengers are still pending, so Ford's bill for Hale's carelessness is only going to go up. (Warren Wise, "Ford, injured youth's family fight on", Charleston Post & Courier, Dec. 8).

Hampton County was named a judicial hellhole in 2004 when South Carolina law permitted plaintiffs in the state to pick any county they wanted to bring suit, and taken off the list in 2005 when South Carolina fixed its venue rules, but, of course, Hampton County residents still get the friendly juries there. (Schuyler Kropf, "Hampton County juries have reputation", Charleston Post & Courier, Dec. 8).

Something unusual in the Yale Law Journal: an article that takes a not entirely enthusiastic view of the continued spread of domestic restraining orders. Under such orders (some earlier posts) allegations of spousal abuse, whether or not eventually proven at trial and whether or not withdrawn by the accuser, can trigger highly burdensome sanctions against the accused spouse, including a prohibition on entering his or her own home. Harvard Law assistant professor Jeannie Suk says the process can amount to "de facto state-imposed divorce" and greatly increases the power of the state to reach into and reorder family life, sometimes against the will of both parties. ("Criminal Law Comes Home", Oct., abstract leads to PDF of full version)(via Pattis). In response, a second law professor argues that current legal trends appropriately treat alleged domestic violence as a crime against the state and not just against the nominal victim, and that it is wrong to place too much emphasis on accusers' supposed right to forgive abusive conduct (Cheryl Hanna, "Because Breaking Up Is Hard To Do", The Pocket Part, Oct. 12)(& welcome Ron Coleman/Dean Esmay readers).

It seems Honda odometers, until recently at least, were what you might call conservative -- they registered a slightly higher mileage than actually driven, by perhaps 2 or 4 percent. Given that the best known consumer-protection hazard in the odometer world has long been the danger of unscrupulous tampering with the devices so as to underestimate mileage with an eye to resale, one way to interpret the Honda settings is that they effectively leaned over to protect buyers of used vehicles. However, class action lawyers did not interpret the phenomenon that way, instead hinting at a plot to 1) get owners to come in for scheduled service slightly more often than otherwise and 2) run out mileage-triggered warranties slightly faster than otherwise. Reader James Ingram, referring to the handsome fee haul, writes: "I'm sure I am happy to pay $9 1/2 million to know that my Honda odometer which reads 10,200 to 10,400 really should read 10,000. If I drive it, say, 150,000 miles it might cost me an additional $30 oil change." (Mary Alice Robbins, Texas Lawyer, Nov. 13).

"...are those where lawyers sue lawyers." Profile of Georgia attorney Frank Beltran, who specializes in filing lawsuits against lawyers: "'When lawyers split up it's worse than a marriage,' Beltran said, observing that some get vindictive as 'ego and testosterone' kick in." And then there are the wrangles over how to split fees (Meredith Hobbs, "Legal Malpractice Brings Unique View of Brethren's Vices", Fulton County Daily Report, Dec. 4).

Perhaps this Pennsylvania jury considered that it was steering things down the middle with its result:

Five Bethlehem police officers used excessive force to restrain a man high on crack cocaine who killed a drug dealer with a samurai sword and set him on fire, a federal jury ruled Tuesday night.

... [Sonny] Thomas, 50, who testified he suffered bruises and recurring migraine headaches as a result of the violent scuffle, sought $35 million in damages but was awarded $1....

Thomas testified he had smoked 12 rocks of crack cocaine during the four hours before stabbing [19-year-old Carlos] Garcia more than 80 times with a 4-foot-long samurai sword.

Police, who arrived at the grisly scene to find Garcia's body set ablaze with the sword sticking out of it, said Thomas ignored an order to surrender, while Thomas countered that he put up no resistance but was beaten anyway. While finding five of the police officers at the scene responsible for excessive force, the jury exonerated five others. The federal judge who presided over the trial, John Fullam, called the jury's verdict "remarkable". (Matt Birkbeck, "Samurai killer wins police brutality case, $1 award", Allentown Morning Call, Nov. 29). For more on "one-dollar" verdicts by juries in excessive-force cases filed by criminals, see my 1994 City Journal article on New York's "mugger millionaire" case.

The Chicago class action lawyer, vividly remembered for his role in the notorious BancBoston Mortgage case, among others (Nov. 15, 1999, Feb. 7, 2000; see also Dec. 15, 2004 for his involvement in junk-fax litigation) is now filing suits against lenders who solicit persons with poor credit histories for more loans. The Northwest Indiana Times kindly quotes me on the subject (Joe Carlson, "Lawsuits targeting credit scams", Nov. 27).

Is the 78-year-old George Pavia a bully resident-landlord who is trying to intimidate his tenants? Or is 67-year-old James Couri, convicted on federal fraud charges in the 1980s, a litigious pro se tenant whose addition of Pavia to his list of legal adversaries is a scheme to get out from paying rent? Six years of legal battles (helped by Couri's ability to find Pavia's technical violations of the regulatory morass facing NYC landlords) will culminate in a jury trial in 2007, though the personal enmities involved suggest that there will be years of appeals afterwards. Couri tried to enlist other tenants against Pavia in a suit claiming that Pavia overcharges tenants, but, inspirationally, the other tenants refused, feeling that their rents were reasonable regardless of what New York's arcane rent control laws say. Pavia has not been able to evict Couri though the former feels harassed by his involuntary neighbor and the latter hounded a gay designer out of the building; one of Pavia's lawyers explains, “Apparently, there are certain judges in New York who would rather take arsenic than evict a tenant.” For the Coasian effects of such judges, see POL Nov. 28; but see Giacalone for an opposing view that isn't quite responsive. Moral: tenant background checks are your friend. (Ron Stodghill, "A House Divided: Uncivil War on E. 73rd", New York Times, Dec. 10).

Ann Althouse detects aesthetic, rather than paternalistic, origins (Dec. 9). More: Steve Chapman, "New York's food police ride to the rescue", syndicated/Chicago Tribune, Dec. 11; and more Althouse.

We've been entertained by these for some time (e.g., Jan. 12), and now they're the subject of a Peter Lattman WSJ front-pager in today's paper. One blogger admits that the firm does successfully bury some stories.

Amid a rapid rise in the number of students with disability diagnoses -- diagnoses of learning disability, in particular -- colleges and universities "have magnified services to help those students keep pace - from personal note-takers to high-tech computer equipment that reads aloud and types research papers. ... The number of college students with disabilities has grown fivefold from three decades ago, when it was estimated at 2.3 percent." At Regis University in Colorado, the number of students receiving accommodations has jumped more than fifty percent in three years, from 240 to 370. "The number of college students diagnosed with disabilities increased dramatically after the 1990 passage of the Americans with Disabilities Act, [Regis disability services director Joie] Williams said." About 600 students use the "Access Center" at Denver's Metropolitan State College: its services, which by law are free to students, include uploading textbooks onto students' iPods. (Jennifer Brown, "More colleges helping with disabilities", Denver Post, Nov. 26). For accommodation demands at the high school level, see, e.g., this Mar. 24 post.

The Vermont Supreme Court is considering the issue, which we've repeatedly covered (Dec. 29 and links therein); in a Fox News report, person after person argues that such damages should be available to deter animal cruelty, each of whom disregards the availability of punitive damages for intentional torts. The main effect of such "rights" would be to make pet care largely unaffordable for the poor so that a handful of wealthy pet owners would be able to collect larger damages awards from veterinarians.

Stephanie Mencimer is predictably in favor of more litigation (singling out "Ted Frank and his Overlawyered buddies" for some reason, though there is only one Walter Olson), but her reasoning is unusual. Mencimer tells the tale of her battle with a next-door neighbor pet spa, and complains that there is a shortage of kennels, which, she says, causes sub-par care of dogs. Lawsuits, she concludes, would fix this problem. That she thinks raising the cost of providing a service will solve the problem of a shortage of service providers bespeaks a certain economic illiteracy that perhaps explains her reflexive opposition to liability reform.

"A 'high risk' child rapist is to receive thousands of pounds in damages for 'unlawful detention' while held pending deportation to Somalia, a High Court judge ruled yesterday. The failed asylum seeker, who cannot be named and is referred to only as 'A', is threatened with removal after serving an eight-year prison sentence for attacking and sexually assaulting a 13-year-old girl. But yesterday Mr Justice Calvert Smith ruled that there was a period between Dec. 3 2004 and July 20 2006 when the 31-year-old's detention became unlawful, entitling him to compensation." Deportation from the UK to Somalia has been difficult to accomplish until recently because airlines refused to transport deportees, and "A" refused to get on a plane voluntarily. ("Rapist wins pay-out over unlawful detention", Daily Telegraph, Dec. 8; "A failed asylum seeker jailed for child rape recieves £50,000", Dec. 8).

• Can reformers declare victory? [Point of Law; American Lawyer]
• Mississippi Supreme Court reaffirms: no litigation tourism for asbestos plaintiffs. [AP/Commercial Dispatch (h/t SB); Coleman v. A-Bex; Albert v. Allied Glove]
• More asbestos frauds in the Wall Street Journal. [Point of Law]
• LA judge will decide whether to censor Borat DVD. Earlier: Nov. 9. [Reuters]
• Guacamole dip fallout: "Is the goal here to get guac with more avocados or to create more work for the abogados?" Earlier: Dec. 6. [LA Times via Bashman]
• Quelle surprise: the tobacco settlement money is being treated by Missouri like general revenue, i.e., a tax. [Mass Tort Litigation Blog]
• Quelle surprise: Stephanie Mencimer caught exaggerating case for plaintiffs' lawyers. [Point of Law]
• Epstein: What's good for pharma is good for America. [Boston Globe]
• Heather Mac Donald: No, the cops didn't murder Sean Bell. [City Journal]
• Well, suing several major Ontario Jewish organizations and releasing a press release that they're all part of the Israel lobby is one way to convince people that you're not a bigot, right? [Bernstein @ Volokh]
• The case against (and for) Jeff Skilling helps explain why CEOs are paid so much. [Point of Law; Kirkendall]
• Lame-duck Republican Congress wasting final hours with committee hearing on contract dispute, but one of the parties is famous, so it's okay, right? [Kirkendall]
• Environmental group on the web speaks out against Dihydrogen Monoxide. [DHMO.org]
• The problem of Institutional Review Boards. [Carpenter @ Volokh; Point of Law]
• Will Danny DeVito play Gretchen Morgenson in the movie? NY Times and Sen. Grassley get snookered by unsuccessful trial lawyer. [Ideoblog; WSJ]
• New York Times web commenters are unimpressed with the fact that Nintendo needs to warn Wii users not to throw their remote. [The Lede]
• "The conventional wisdom is that we would be better off if politically powerful leaders were less mediocre. Instead, my view is that we would be better off if mediocre political leaders were less powerful." [Kling @ TCS Daily via Kirkendall]
• "If Democrats allow lower prices here, they may even have to tolerate Wal-Mart." [WSJ letter @ Cafe Hayek]
• Lindsay Lohan wants to enlist Al Gore in a lawsuit against her former assistant. [Defamer; Access Hollywood]
• Hey, we've slightly tweaked our right-hand sidebar. What do you think?

Birmingham, Ala.: "Felicia Reynolds, the mother of former Hoover High School student Ricky Reynolds, has filed a $5 million claim against the city of Hoover, saying her son would not have fatally stabbed classmate Sean Joyner had her pleas for help been heeded. Ricky Reynolds is in a Louisiana prison serving a 20-year manslaughter sentence for the November 2002 incident at the high school." (Robert K. Gordon, "Killer's mother sues Hoover", Birmingham News, Dec. 7).

"An article in the journal Tobacco Control suggests suing doctors for failing to nag patients who smoke about quitting." (Jacob Sullum, Reason "Hit and Run", Dec. 6; MedPundit, Dec. 6; Randy M Torrijos and Stanton A Glantz, "The US Public Health Service 'treating tobacco use and dependence clinical practice guidelines' as a legal standard of care", Tobacco Control (British Medical Journal), Dec. 2006).

We've linked in the past to a lot of excellent investigative journalism on the disabled-rights filing mills that have blanketed whole business districts in California and elsewhere with accessibility complaints that quickly convert to cash demands. (Some examples: Carmel (Calif.) Pine Cone on Jarek Molski and Thomas Frankovich, blogger George Wallace on Jerry Dolan, CNN on George Louie, among others; and I might as well promote my own 2004 effort for City Journal). Among the most riveting of the bunch appeared this fall in Southern California's Orange County Weekly. (R. Scott Moxley, "The New Crips", Orange County Weekly, Oct. 13). A few highlights:

* "Lawyers familiar with [wheelchair user David Allen] Gunther’s activities estimate he’s taken more than $400,000 in the last 36 months, mostly from mom-and-pop shops in Garden Grove, Anaheim, Fountain Valley, Orange, Tustin, Buena Park, Stanton, Seal Beach, Santa Ana, Dana Point, Huntington Beach and Los Angeles. If true, that’s quite a haul for a man who has spent most of his adult life unemployed, according to records obtained by the Weekly."

* One of the first targets of Gunther's suits, a flower seller in Anaheim, fought back, pointing out to a judge that she was herself wheelchair-bound and that her shop had a ramp. Gunther's suit was dismissed, with no apology; "on the day Gunther said he drove to Gibson’s flower shop, he claimed in separate legal filings that he also wanted to patronize Gibson’s neighbors: a massage parlor, a dental office and a palm reader." He got money from the massage parlor but not from the palm reader, who like the flower seller pointed out to Gunther's lawyer that he did indeed have a ramp.

* "A Weekly investigation traced Gunther’s activities around the western U.S. during the last quarter of a century, uncovering evidence that not only has he exaggerated his reliance on a wheelchair, but he’s also whitewashed his own history of chronic unemployment, multiple drug addictions, narcotics trafficking, assaults, petty thefts, burglaries, a decade of missed child support payments, and more than a dozen arrests and stints in jail."

* Gunther's lawyer is none other than longtime Overlawyered favorite Morse Mehrban, (Nov. 4-5, 2002, Mar. 12, 2004, Jul. 9, 2004). Faced "with a discovery demand for the details of Gunther’s ADA settlements, Mehrban resisted for weeks, arguing that the information was 'confidential and proprietary.' Said Mehrban, 'There is nothing to be gained by examination of the documents.' Eventually, he told a judge that the issue was moot. He routinely destroys all Gunther’s paper records and erases the memories of his office computers, he said."

* Nor is it possible for members of the outside public or media to attend the monthly meetings of Equal Access Now, a group Gunther has set up to promote access complaints. "'Sorry, it’s private,' said Gunther. 'I teach disabled people about their rights.'” Gunther often files actions in concert with three other wheelchair users, each of whom claims the $4,000 per violation entitlement.

* After ending a client relationship with his own former lawyer, Gunther sued, claiming the lawyer's bathroom was unaccessible. The lawyer's staff said that Gunther not only had used the bathroom without incident but that he had in fact comfortably walked into and out of the office on repeated visits.

* At a meeting of some of Gunther's victims in Santa Ana, "Jin Kim, owner of a barbecue restaurant at 17th Street and Grand Avenue, cried. He recounted the shock of getting the lawsuit without warning, how Mehrban had coldly refused to negotiate despite pleas, and that he had to sell his wife’s ring and a vehicle to pay Gunther $16,000—and his own attorney another $4,000 in fees. His crime? His restroom mirror was allegedly mounted a few inches too high and the door was a few pounds too heavy to push."

* And his lawyer's own offices? As it happens, they're up a steep flight of steps in Koreatown: "Mehrban says it would not be practical to make his office accessible to the handicapped."

The whole article, again, is here. Note that the California legislature has shown no discernible interest in amending the Unruh Act so as to curb this kind of entrepreneurial activity. Note also that the "ADA Notification Act", a proposal in Washington aimed at curtailing cognate abuses based on the federal ADA, was unable to attain any serious traction even in the supposedly pro-business Republican Congress now drawing to its close.

P.S. Gunther's activities also figured in the notable and recently decided case of Gunther v. Lin, discussed by Ted Dec. 1.

Among the first casualties of the lurch toward protectionism on Capitol Hill: the interests of transatlantic air travelers. (Daniel Drezner, Dec. 6; via Reynolds).

P.S.: for the underlying news report, see Don Phillips, "U.S. Withdraws Plan on Foreign Investment in Airlines, Disrupting Open-Skies Treaty", New York Times, Dec. 6.

The suits seeking to make investment firms pay for failed tech IPOs (initial public offerings) can't be tried as a class action, the Second Circuit rules. John Carney at DealBreaker explains the title (Dec. 6). "The ruling was a devastating blow to the embattled securities class-action powerhouse Milberg Weiss Bershad & Schulman, which is a co-leader for the plaintiffs." (Julie Creswell, "Court Rejects Class Action Against Banks", New York Times, Dec. 6).

Elizabeth Loftus dared to write an article in the Skeptical Inquirer critically examining questionable claims of recovered memory abuse (Aug. 26, 2004); justices seemed skeptical of the argument Nicole Taus shouldn't be allowed to sue for Loftus's alleged misrepresentations to obtain information, which scares media lawyers: "Although journalists generally identify themselves truthfully, ruling for Taus would 'create a motive' for news sources unhappy about their portrayals 'to belatedly contend that the reporter obtained the information by misrepresentation,' lawyers for the media argued." Loftus denies lying, but, at the dismissal stage, the Court assumes the allegations of the complaint are true. Whether Veronica Mars would be sued into next week is left as an exercise for the reader. (Maura Dolan, "High court considers privacy issue", Los Angeles Times, Dec. 6).

Lots of humorous possibilities here, as also at the companion Warning Sign Generator. Send us your best efforts (via NAM ShopFloor).

AEI's incomparable Sally Satel prescribes a soothing decaf for some of the public-health agitators who are beginning to rattle their cups about Starbucks and Big Cola enslaving our children and the like. (American Journal of Drug and Alcohol Abuse, Dec. 6). See Aug. 18-20, 2000, Jun. 1, 2004, Dec. 5, 2005, May 29, 2006.

One reads a lot about how a conservative judiciary has supposedly pulled the teeth of the Americans with Disabilities Act. Particularly noteworthy is a series of decisions in which the Supreme Court, faced with employment claims in which safety might be at risk (from commercial pilots with poor vision, for example), ruled against the employee's claim and widened the effective range of employer discretion.

No doubt there is some truth to the idea that the high court's employment decisions have curbed the ADA's expansionary momentum. But then there are the cases like that of Dark v. Curry County, decided by the Ninth Circuit this summer. Robert Dark, an epileptic from youth, operated heavy construction equipment for the road department of an Oregon county. One morning he experienced an "aura", a sensation which often presages a coming seizure, but did not inform anyone at the job about it when he reported for work. Later that day, he did in fact experience a seizure. An accident was avoided because a co-worker managed to seize control of the machine Dark was operating before it could do any damage.

The county terminated Dark, with emphatic language about how his medical condition prevented him from safely accomplishing his duties. A lower court agreed with the county, but a three-judge Ninth Circuit panel reinstated his suit. Its key points: the county did not adequately give consideration to reassigning Dark to light-duty positions, in particular those that it might have anticipated would "become available within a reasonable period" following his removal from the machinery job, even though the jobs were not in fact open at the time. And although the county placed considerable weight during the dispute on Dark's misconduct in not informing his supervisors or co-workers about his indications of a possible impending seizure, it did not cite that reason at the time in dismissing Dark, instead (and more diplomatically) reciting the safety concerns of a prospective nature.

The case (available at FindLaw here in PDF format) sparked considerable discussion on the web, including Phillip J. Griego (to whom the above discussion is indebted), HRHero/M. Lee Smith, and Proskauer Rose. Robert Loblaw at Appellate Decisions writes (Jul. 6):

The ADA often places employers in a difficult position, since they have knowledge of the dangers of employing a particular individual but cannot always take steps to address those dangers. Indeed, this case is similar to last year’s Pacific Bell case, which involved a home repair technician who had spent time in a mental hospital after being found not guilty of attempted murder by reason of insanity (my coverage here). As in that case, Curry County would probably be found liable in tort if Dark injured somebody while on the job, due to its knowledge of his condition. Indeed, Curry County is even more likely to be on the hook if Dark has another seizure that results in injury, since he already had one near-miss on the job. But as far as the ADA is concerned, Curry County's potential tort liability is simply not relevant.

And before assuming that this is just one of those wacky Ninth Circuit cases, note (as does Ross Runkel) that the author of the opinion is the highly regarded conservative jurist Diarmuid O'Scannlain. Maybe it just is an extreme law, with no judicial activism needed to get extreme results out of it.

Six imams (who had just attended a private conference on imams and the media and politics) were waiting for US Airways Flight 300 and decided to act rather provocatively: they shouted "Allahu Akbar!" loudly while praying in the waiting area, refused to take their assigned seats (instead squatting in the front row of first class and the exit rows—consistent with trying to control the entry and exit areas of the plane), demanded use of a seatbelt extension for the morbidly obese despite being only moderately overweight (and then placed the heavy-buckled potential weapons under their seats instead of on their seatbelts), and started speaking to one another in Arabic (which a fellow passenger translated as angry denunciations of America). They succeeded in the attempt to draw attention to themselves; the captain asked them to leave the plane, they refused, and were then arrested; the plane then underwent a 3.5-hour search for bombs.

"They should have been denied boarding and been investigated," former air marshal Robert MacLean said. "It looks like they are trying to create public sympathy or maybe setting someone up for a lawsuit."

Sure enough, the victimizers are now playing victim and threatening to sue under the auspices of the Muslim American Society (which was previously in the news for demanding that Muslim cab-drivers be permitted to refuse rides to passengers carrying alcohol) and the litigious Council on American-Islamic Relations (Apr. 25). The provocation, helped along by new Congressman Keith Ellison (D-Minn.), also appears to have its desired effect: "The Minneapolis airport plans to add a prayer room for Muslims, and Democrats plan to hold hearings on Muslim profiling." (Audrey Hudson, "How the Imams Terrorized an Airliner", Washington Times/Front Page, Nov. 29; Arizona Republic op-ed, Nov. 29; Debra Burlingame, "On a Wing and a Prayer", Wall Street Journal, Dec. 6; LGF blog, Nov. 21; "Tale of Fibbing Imams", Investors Business Daily, Dec. 4 via Powerline blog, Dec. 6).

As its label discloses, Kraft Guacamole Dip hardly deserves the name, containing less than 2 percent avocado. The strategy of "read the label" was one that Brenda Lifsey of Los Angeles elected not to follow, nor did she content herself with the backstop strategy of "ask for your purchase price back and don't buy the product again". Instead, she's filed a lawsuit seeking class-action status against the giant food company. And speaking of artificial ways of making green: "Lifsey has been a plaintiff in other lawsuits against large corporations," including Sears and Carfax, over alleged misrepresentations of their products. (Jerry Hirsch, "Lawsuit stirs up guacamole labeling controversy", L.A. Times/Chicago Tribune, Nov. 30).

"That is how much the Long Island Rail Road and the Metro-North Railroad have paid over the last four years to customers who have torn clothing" on the armrests of their M7 trains. I've torn pants pockets on armrests that weren't on M7 trains, but never thought to ask for compensation for something that was my own damn fault. I'm apparently a sucker, but at least no one is seeking to add this claim of damages to the obesity lawsuits. Yet. (William Neuman, "M.T.A. Gets Bill When Armrests Chew Up Pants", NY Times, Dec. 6 (h/t W.F.)).)

What I find so amusing about Dahlia Lithwick's suggestion of a lengthy warning for Christmas parties isn't so much the warning itself (others have done that funnier, not to mention the real-life examples), but that Lithwick doesn't recognize that she's part of the culture that encourages such ludicrous warnings: in 2003, Lithwick pooh-poohed as "extreme" the need for legislative intervention to prevent courts from going after food providers in obesity lawsuits because, after all, Big Food could survive by "posting warnings."

Legal hazards of Christmas party-giving (Alan Kopit, Lawyers.com, undated recent; Dahlia Lithwick, "Fa-la-la-la-lawsuit", Slate, Dec. 1).

P.S. And here's a report from the U.K. claiming that many employers there are curtailing the posting of holiday decorations at workplaces from stated motives that include avoiding offense to those of other faiths and a variety of safety concerns. (Amy Iggulden, "No decorations, please, it might cause offence", Telegraph, Dec. 6).

The ideology of the "disabled movement", at its fringe, can generate some arrestingly wrongheaded ideas. "Susannah A. Baruch and colleagues at the Genetics and Public Policy Center at Johns Hopkins University recently surveyed 190 American P.G.D. clinics, and found that 3 percent reported having intentionally used P.G.D. 'to select an embryo for the presence of a disability.' In other words, some parents had the painful and expensive fertility procedure for the express purpose of having children with a defective gene. It turns out that some mothers and fathers don’t view certain genetic conditions as disabilities but as a way to enter into a rich, shared culture." (Darshak M. Sanghavi, M.D., "Wanting Babies Like Themselves, Some Parents Choose Genetic Defects", New York Times, Dec. 5). Cathy Young writes: "The movement ["Deaf culture"] holds that there is nothing wrong with being deaf, only with how society has treated deaf people. ... But it's a leap from this understanding [that deaf persons have suffered from bias, stereotyping and unfairness] to the bizarre idea that the lack of hearing is no more a disability than being female or black. ... The majority of deaf people do not belong to Deaf culture." (syndicated/Boston Globe, Nov. 6).

It's a proposal for a new national holiday on Dec. 5 marking the end of Prohibition. (WaiterRant, Dec. 5; Jeffrey Morgenthaler, Nov. 7). Nice idea, but what makes anyone think that a nation hurtling in the opposite direction -- toward bans on every unhealthy but pleasurable form of food and drink that public-health busybodies see fit to target -- would even wish to pay lip service to the principles of individual liberty at stake in Repeal?

For ideas on what comes next after NYC Mayor Bloomberg's ban on restaurant use of trans fat (PoL Dec. 5, etc.), see Michael J. Nelson, "Protecting You From You", Dec. 5. More: "So you can't cook with Crisco anymore? That's crazy! Is there no respect for tradition? Of all the elitist regulations, this one takes the cake. And the pie crust." (Althouse, Dec. 6; also Oberwetter, Mangu-Ward).

Ramps and other aids to sidewalk and crosswalk accessibility having been one of the earliest and most successful demands of the modern disabled-rights movement, you might assume that the litigation and expense arising from the changeover was by now mostly a thing of the past. Not so, according to a Los Angeles Times piece last month. In California, plenty of legal action is in progress against cash-strapped municipalities, which say they can't afford to comply. "The estimated cost in California alone is $2.5 billion. 'The cost of retrofitting is phenomenal,' said Gregory Hurley, a Costa Mesa attorney who has represented local governments. 'Where is the money going to come from?'" The accommodations "include wheelchair ramps at curbs, level pavement, gently sloping driveways, minimum clearances for wheelchairs and crosswalk warnings for the vision-impaired." (Dan Weikel, "Getting there is none of the fun". Los Angeles Times, Nov. 13).

So rare and so useful when it happens: "The federal judge overseeing the Enron shareholders’ class-action lawsuit dismissed a $1 billion claim brought by plaintiffs’ lawyer William Lerach against investment firm Alliance Capital Management. And in an unusual move, Judge Melinda Harmon in Houston ordered that the plaintiffs pay Alliance’s attorney’s fees under Section 11(e) of the Securities Act." Lerach had sued Alliance because one of its executives, Frank Savage, sat on Enron's board, but Judge Harmon dismissed the suit, "ruling that the plaintiffs showed no evidence of wrongdoing on either Alliance’s or Savage’s part." (WSJ Law Blog, Dec. 4; Peter Lattman, "Lerach's Enron Lawsuit Against AllianceBernstein Is Dismissed", Wall Street Journal, Dec. 2 (sub)). For Lerach's side of the matter, see Floyd Norris, "In Unusual Ruling, Law Firm Is Told to Pay Opponent’s Legal Fees in Enron Case", New York Times, Dec. 2. More: And here's a (subscriber-only) WSJ editorial: "Loser pays", Dec. 7.

I've been cleaning up and simplifying the organization of the site, specifically the sidebar on the front page. Many readers already follow Overlawyered posts by subscribing to feeds, and I've made that easier by enlisting in the popular FeedBurner service. If you're currently using a different feed method, we encourage you to give FeedBurner a try.

For years I've been publishing a short periodic newsletter summarizing highlights of recent posts. It's a lot of work, however, and at my present level of commitments I'm obliged to conclude that it's not a wise use of my time, especially with the feed option providing a similar but richer service in real time (rather than days or weeks later). So for the time being I'm going to officially declare the email newsletter dormant; at some point maybe it'll be worth reviving in some new format.

Latest in the Tennie Pierce (firehouse dog food prank) saga: Los Angeles Times columnist Steve Lopez finds reader sentiment heavily taking the view that the $2.7 million settlement figure is stark raving bonkers (Dec. 3). He speaks with Chief Assistant City Atty. Gary Geuss to get a feel for how the number was arrived at:

"The mediator said Pierce would be a good witness, his wife would be good and his daughter was going to get on the stand and start crying," says Geuss....

In one case that went to trial two years ago, an L.A. cop got $4.1 million in a racial discrimination and retaliation case despite having made his own disparaging racial remarks.

Juries tend to jump at the chance to stick it to employers, Geuss said. When prospective jurors are asked if any of them have had issues with their bosses, "About 90% of the hands go up."

Geuss began doing the math....

The L.A. Times's news side, according to blogger Patterico, has begun belatedly acknowledging some of the flaws in Pierce's case (Dec. 3; Jim Newton, "Dog food lawsuit a test for L.A. mayor", Dec. 3). Earlier: Nov. 11, Nov. 22, Nov. 29, Dec. 2.

The holiday season, like the summer vacation season, makes a traditional time to invite in guestbloggers to enliven the site. If you think you might enjoy posting in this space for a week, email editor - at - thisdomainname - dot - com. Those with a blogging track record, or at least a track record of published writing, get first consideration.

Disabled-rights law, which includes the Americans with Disabilities Act along with closely related laws like the Rehabilitation Act (mandating access in government programs) and state disabled-rights statutes, has been back in the news lately. Last week, for example, a federal judge agreed with plaintiffs that the current design of U.S. paper money violates the rights of blind users under the Rehabilitation Act. A California court, as Ted noted last week, issued a ruling attempting to limit (to intentional violations) the broad sweep of that state's Unruh Act, while the Sacramento Bee recently published the latest of many exposes of "drive-by" accessibility-complaint rackets, which function as a money-making device for the lawyers involved, the complainants, or both.

There's a good chance that the fitfully pursued debate over whether the ADA and similar laws have gone too far -- or perhaps not far enough -- will be heating up in the new year. That's because, as ADA-friendly law professor Sam Bagenstos noted shortly after last month's election (Nov. 13, via Secunda), disabled-rights advocates may see the balance of forces in Congress shifting favorably toward efforts to resume expansion of the law:

Since the Supreme Court's 1999 trilogy of definition-of-disability decisions (Sutton, Murphy, and Albertson's), many in the disability community have felt that it made sense to go back to Congress to get legislation to restore what the main sponsors of the law intended. ...For a long time, the fear of opening up the ADA to even more restrictive amendments (like the ADA Notification Act) kept the disability community from mounting a full-scale effort to seek amendments to the statute....

So the natural question is what effect the change in control of Congress will have on this state of affairs. I think it's now quite a lot more likely that some sort of "ADA Restoration Act" will pass -- which isn't to say that it definitely, or even probably, will pass. It would be smart political strategy for the Democrats in Congress to push issues that hold their party together but that divide the Republicans. Played right, the ADA could be one of those issues.

Indeed, as Prof. Bagenstos notes in his highly informative post, a number of prominent Republicans in Washington are already on record endorsing "ADA restoration" proposals.

Most of the expansion of this field of law in the past has gone on with little real debate or opposition (the ADA itself in 1990 passed the House by a margin of 377-28 and the Senate by 91-6, and Presidents Bush père et fils have been vocal supporters of the law). So in the spirit of, well, diversifying the debate on these laws, we'll plan on posting something each day this week suitable for our Disabled Rights category.

As always, worth reading: "In the end, the truth -- and personal freedom -- prevailed [when the FDA re-approved the devices after 15 years]. But only after a heck of a fight, and only after sustaining some serious wounds." ("Recovering, finally, from the breast implant panic", syndicated/Chicago Tribune, Nov. 3). More: Nov. 20, etc.

That prospective lawsuit by the very needy and deserving plaintiff, the government of Saudi Arabia, against international tobacco companies, discussed in this space Nov. 16, 2000 and Dec. 10, 2001, is apparently on again. ("Saudis threaten to sue tobacco companies", Reuters/GulfNews, Nov. 30). Hans Bader at CEI's Open Market (Dec. 1) deplores the action, but seems to imagine that 1) it might make more sense for American victims of 9/11 to sue the Saudis and that 2) this isn't happening already (see Jul. 11, 2003, Sept. 26 and Nov. 6, 2004, and Oct. 12, 2005).

Editorial writer Michael McGough of the L.A. Times has come to dislike them:

If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The "protected class" should be human beings.

("There's little to like about hate-crime laws", Dec. 3).

This time from the U.K.: Simon Jenkins has some choice words in the Guardian about the tendency to turn a relatively rare phenomenon -- injuries caused by tree falls -- into the occasion for legal punishment, and the undesirable incentives this creates for those entrusted with the care of trees. ("Those who walk under trees are at risk from these terrorising inspectors", Nov. 17). More on tree hazards: Jun. 11, Jul. 31 and Nov. 27, 2006; Apr. 30 and Jul. 19, 2005; Nov. 16, 2004; Mar. 12, 2002.

• Tennie Pierce update: only 6 out of 15 members vote to override mayor's veto of $2.7M dog-food settlement (Nov. 11). [LA Times]
• Reforming consumer class actions. [Point of Law]
• Judicial activism in Katrina insurance litigation in Louisiana. [Point of Law; Rossmiller; AEI]
• What will and won't the Seventh Circuit find sanctionable? Judge Posner's opinion gets a lot of attention for snapping at the lawyers, but I'm more fascinated about the parts where the dog didn't bark, which isn't getting any commentary. [Point of Law; Smoot v. Mazda; Volokh; Above the Law]
• Montgomery County doesn't get to create a trio-banking system. [Zywicki @ Volokh and followup]
• "The Hidden Danger of Seat Belts": an article on the Peltzman Effect that doesn't mention Peltzman. [Time; see also Cafe Hayek]
• Pending Michigan "domestic violence" bill (opposed by domestic violence groups) criminalizes ending a relationship with a pregnant woman for improper purposes. [Detroit News via Bashman; House Bill 5882]
• Did Griggs causes distortion in higher education? I'm not sure I'm persuaded, though Griggs is certainly problematic for other reasons (e.g., POL Aug. 12, 2004). [Pope Center via Newmark]
• The Kramer cash settlement. [Evanier]
• Jonathan Wilson gives Justinian Lane a solid fisking on loser pays. [Wilson]
• Speaking of Justinian Lane, for someone who says he was "silenced" because I didn't post a troll of a comment on Overlawyered, he's sure making a lot of whiny noise. Hasn't corrected his honesty problem, though. [Lane]
• The stuff Gore found too inconvenient to tell you in "An Inconvenient Truth." [CEI]
• Islam: the religion of peace and mercy, for sufficiently broad definitions of peace and mercy. [Volokh]
• One year ago in Overlawyered: photographing exhibitionist students at Penn. Jordan Koko doesn't seem to have gone through with the threatened lawsuit. [Overlawyered]

From his syndicated column ("Obliging the Entertainment Industry Poobahs", Newhouse, Nov. 29):

Think of all the unauthorized copyrighted material you have in your head right now: Beatles tunes, Stephen King plots, images of Mickey Mouse.

Thief!

Well, you're not exactly a criminal -- but give it time.

The Digital Millennium Copyright Act has just been amended again, and if the changes make the entertainment industry happy, that does not bode well for your future.

Tomorrow the law may be amended to prevent you from reading Doonesbury while moving your lips, since that's an unauthorized reproduction that shifts content from one form to another....

Asks Steven Hantler in the December 1 Washington Times.

Speaking of hypocrisy and taxes, I was amused by the following (off-topic) quote (via Open Market):

At the outset of his research, [economist Arthur] Brooks had assumed that those who favor a large role for government would be most likely to give to charity. But in fact, the opposite is true.

Several times throughout the book, Mr. Brooks quotes Mr. Nader, the political activist, who said during his 2000 presidential campaign: “A society that has more justice is a society that needs less charity.”

Mr. Brooks calls it a “bitter irony” that those favoring income redistribution are not doing much redistributing from their own bank accounts — and he blames liberal leaders like Mr. Nader for letting liberals off the hook.

“In essence, for many Americans, political opinions are a substitute for personal checks,” Mr. Brooks writes.

(Ben Gose, "Charity's Political Divide", Chronicle of Philanthropy, Nov. 23). AEI is holding a book forum for Brooks's book, Who Really Cares: The Surprising Truth about Compassionate Conservatism, on Tuesday, December 5, at 5:00 PM, free to the public; I'll sadly have to miss because I'm attending the Scalia-Breyer debate sponsored by the Federalist Society and ACS.

My new column in the Times (UK) Online is up this morning, and discusses yesterday's issuance of the much anticipated Paulson Committee report on the need to revive flagging U.S. competitiveness in international capital markets by reforming the workings of our securities and class-action law. (Dec. 1). For more on the work of the Committee on Capital Markets Regulation, see PoL Oct. 19, Nov. 30, Dec. 1, etc.

We've previously covered lawyers who file hundreds of lawsuits alleging discrimination against the disabled over alleged technical violations of the law, and then extort settlements at thousands of dollars a pop. (E.g., Nov. 4; Aug. 28; May 31, 2005). The Sacramento Bee recently ran an extensive series on the issue. (Marjie Lundstrom and Sam Stanton, "Visionary law's litigious legacy", Nov. 15 ; Id., "Frequent filers", Nov. 16; Id., "Targeting entire towns", Nov. 12; Bullet-point summary).

A California court has interpreted that state's Unruh Civil Rights Act to only provide $4000 penalties in the case of intentional violations of the law; while this is a good public policy result in the abstract, I'm personally wary of the court using its judicial power to rewrite the poor legislation. It also doesn't fix the problem with the federal law. (Gunther v. Lin; Wendy Thomas Russell, "Court ruling puts crimp in disability lawsuits", Long Beach Press Telegram, Nov. 19). And in Florida, the press is just getting around to noticing the drive-by problem because of Robert Cohen's 300 suits. (Kelli Kennedy, "'Drive by' suits rake in dough for attorneys", AP/Miami Herald, Nov. 28 (h/t W.F.)). Even reflexive reform opponent Stephanie Mencimer takes notice and can't defend the parasitic lawyering involved, but manages to spin the issue to implausibly blame the Republicans for the problem—though the ADA's civil remedies were drafted by Democrats when they controlled Congress in 1991.

Doctors are increasingly choosing to trade medicinal necessities for a luxury practice, a factor that many who simply count raw numbers of doctors fail to take account of. Now, one must acknowledge that there are several reasons an ob-gyn would choose to switch from delivering babies to performing cosmetic surgery: the hours are better, one doesn't have to deal with the hassle of insurer and Medicare reimbursement, one's patients are likely to be more genteel. But surely the $120,000/year difference in malpractice insurance has at least something to do with it on the margin. (Natasha Singer, "More Doctors Turning to the Business of Beauty", New York Times, Nov. 30).

Recent developments on past stories:

* Remember Shannon Peterson, the Denver condo owner who got sued by a neighbor who complained that she was taking baths too early? (Feb. 27). The case is still dragging on the better part of a year later, a judge having refused so far to throw it out. David Giacalone has the details (Nov. 30).

* Glamourpuss lawsuit-chaser Erin Brockovich, fresh from the humiliating dismissal (Nov. 18) of suits she fronted against California hospitals alleging Medicare overbilling, has been rebuffed in another high-profile case. This time a judge has dismissed twelve lawsuits brought by her law firm of Masry & Vititoe alleging that exposure to oil rigs at Beverly Hills High School caused cancer among students there (Martha Groves and Jessica Garrison, "School oil-rig lawsuits dismissed", Los Angeles Times, Nov. 23) (via Nordberg who got it from Legal Reader). For more on the case, see Jul. 15 and Nov. 19, 2003, and Mar. 16, 2004. The New Republic has marked the occasion by reprinting its revealing 2003 article on the affair by Eric Umansky. P.S. More from Umansky, who has his own blog, here.

* Reader E.B. writes in to say:

Remember the group of parents (Oct. 23) who threatened litigation over their daughters' playing time on the girl's basketball team? The ones who demanded a six-person panel to oversee the selection of the players?

None of the parents' daughters made the team. And they're not happy about it. See C.W. Nevius, "Castro Valley hoops coach can't win", San Francisco Chronicle, Nov. 30.

* A court has dismissed the action (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, 2006) by fair housing activists against Craigslist over user ads that expressed improper preferences or mentioned forbidden categories in soliciting tenants, apartment-sharers and so forth. (Anne Broache, "Craigslist wins housing ad dispute", CNet, Nov. 17). However, blawger David Fish says the court's reasoning was highly unfavorable to many other Internet companies generally, and may expose them to future liabilities (Nov. 15). Craigslist now has an elaborate page warning users that it is unlawful for them to post preferences, etc. in most situations not involving shared living space. Update: David Fish's name corrected, apologies for earlier error.

* 3 pm update to the updates from Ted: "An Illinois intermediate appellate court overturned the $27 million verdict in Mikolajczyk v. Ford (which we reported on last year), ordering the lower court to replace the arbitrary jury verdict with a lower arbitrary number. Why the jury's damage award is considered the product of passion and prejudice, but the same jury's liability award is kosher, remains unclear. (Steve Patterson, "Court says $27 million crash award too much", Chicago Sun-Times, Nov. 23)."