- Reader James Huff passes along this (Bloomington) Pantagraph story from last October of a lawsuit in Illinois over a police shooting of a driver after a car chase. The driver was drunk and had multiple drug convictions for which he was on probation at the time of the incident. The officer said he shot the driver when the driver tried to run him down. Of course, it's Not About The Money:
Dorris said Ruch’s parents, Jack and Margery Ruch, are more interested in details of the incident becoming public than collecting a financial settlement.
That didn't stop them from requesting that the details of the settlement remain private, though. They later changed their mind after the local paper sued; they settled for $750,000.“The thing the Ruch family wants the most is to search for the truth,” Dorris said. “If we have to try this case to get that, then it’ll be tried.”
- Via Howard Bashman: on Monday, the Sixth Circuit reversed a lower court opinion finding the police liable when a drunk driver killed another driver. The court agreed that (treating the victim's allegations as true) the police were incompetent, but incompetence does not create a violation of constitutional rights. (Whatever happened to "Don't make a federal case out of it?") The opinion is here (PDF).
February 2007 Archives
Michael Kinsley famously defined a "gaffe" as when a politician accidentally tells the truth. If so, plaintiff's lawyer Anthony Buzbee committed an awfully big gaffe last year (caught on tape!), as Peter Lattman explains in the Wall Street Journal's Law Blog (See also W$J). It's an open secret that trial lawyers venue shop for the best possible jurisdiction to file a lawsuit, but they rarely describe it openly, particularly in stark racial terms:
"That venue probably adds about seventy-five percent to the value of the case," he said. "You've got an injured Hispanic client, you've got a completely Hispanic jury, and you've got an Hispanic judge. All right. That's how it is."I guess tort reformers won't get any debate from Buzbee when they describe places like Starr County as judicial hellholes (PDF).In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing "here's what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that's the hurdle: Just prove that he wasn't hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases."
Buzbee's a trial lawyer, not a politician, so his reaction is entirely predictable: as per the Galveston County Daily News (and press release from Buzbee's lawyers), Buzbee is suing the people who ran the seminar and those who allegedly taped him, claiming that he agreed to give his talk on the condition that it not be recorded, and further claiming that circulating the tape was done to "damage his career." It seems to me that "The truth will damage my career" is perhaps not the smartest p.r. strategy, but I guess we'll see how his suit goes.
Despite its calamitous and demagogic handling of Katrina flood insurance claims, it's worth recalling that Mississippi has taken great strides toward cleaning up its formerly sorry reputation in other legal areas, personal injury litigation in particular. One business that seems to have noticed, per Pat Cleary at NAM (Feb. 28) is Toyota, the same company that passed over the Magnolia State in a plant-siting decision three years ago (see Apr. 30, 2004). The new Highlander assembly plant, be it noted, is to be located near Tupelo in the northeastern part of the state, far away from the storm-surge-peril zone. ("Toyota To Build Highlanders in Mississippi", Car and Driver Daily Auto Insider, Feb. 28).
No, literally: you can't be too careful, or you may get in trouble.
In 2003, the Staten Island Ferry crashed into a pier at full speed, killing 11 people and injuring hundreds, because the pilot passed out; the pilot ultimately pled guilty to manslaughter. Victims and their families promptly sued New York City, which owns and operates the ferry. On paper, NYC had very tough safety rules, requiring two pilots to be in the pilothouse at all times, just in case; however, it turns out that this rule was not always followed.
On Monday, this abundance of caution came back to bite the city; a federal judge hearing the case held that the existence of these rules could actually be a factor in its liability (NYT):
The city had also argued that because its two-pilot rule was stricter than required by general negligence principles, the violation of the rule did not constitute negligence. In any case, the city said, individual crew members, not the city, were at fault.In other words, the fact that at one point in time someone who worked for the city was extra-cautious actually works against the city; as soon as someone put down an idea about safety on paper, it became a minimum requirement rather than an option. (Trial lawyers already routinely use the existence of internal safety deliberations at a corporation as proof that a corporation knew about and ignored particular risks.) So what lesson do we send? Don't adopt any rules beyond the absolute bare minimum; certainly, don't put anything beyond this on paper.But the judge, Edward R. Korman of United States District Court in Brooklyn, rejected those arguments. He wrote that by adopting the two-pilot rule, the city acknowledged a serious risk of accident if the pilot were incapacitated, and that knowledge of that risk required the city to remedy it.
(The judge naively pooh-poohed this risk, arguing that a "rational company" would be "far more concerned with actually preventing accidents than with gaming future negligence actions by carefully crafting its safety manual," as if a company knew beforehand which accidents were "actually" going to happen.)
N.B.: I should clarify that the city may actually have been negligent in this particular instance; I'm critiquing the principle the judge espouses, rather than its application here.
Walter stole my thunder on the dismissal of the blog comment lawsuit against Lycos, but I thought it raised an important point. One of the common refrains of the Trial Lawyer crowd is that tort reform is not needed, because there are already mechanisms for the courts to deal with frivolous litigation, and because contingency fees mean that plaintiff's lawyers have no incentive to take on meritless cases. The theory of tort reformers, on the other hand, is that the lottery nature of litigation means that plaintiff's attorneys can take on long shot cases, because they only need to win a handful of "deep pockets" suits to come out ahead.
Which theory best explains lawsuits like this one? It's difficult for Section 230 of the Communications Decency Act to be much clearer. It grants (as the First Circuit noted) "broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet." This isn't controversial; the First Circuit described its decision as "joining the other courts that have uniformly given effect to Section 230 in similar circumstances." (Emphasis added.) So why would the plaintiffs not only sue on such a meritless theory, but actually appeal after losing in the District Court?
(I should note that I don't have any specific evidence that this was a contingency case; nonetheless, the larger issue -- namely, how can we successfully disincentivize plaintiffs and plaintiffs' lawyers from bringing meritless suits -- remains. Immunity from liability is great -- but it isn't the same as immunity from litigation. Lycos won this suit -- twice -- but how much did these victories cost?)
UPDATE: I had forgotten that the plaintiffs in this case, UCS and its CEO, Michael Zwebner, and their lawyer, John Faro, are no strangers to Overlawyered; they're the same folks who sued Wolf Blitzer because of posts on Lycos's message board from an anonymous poster who used the screen name Wolfblitzzer0. (See also updates on March 12, 2005; October 15, 2005).
We reported Jul. 25 and Aug. 4, 2003 on the case of Stella (or Estella; accounts vary) Romanski, who was banished from the Motor City Casino in Detroit after taking and playing a nickel from an unattended slot machine. The casino said it was enforcing a policy against "slot walking", the practice of roaming unused machines in search of overlooked coins, but a jury awarded Romanski $875,000 in punitive damages. Reader F.L. now calls our attention to the record (PDF) of U.S. Supreme Court actions taken Oct. 2, 2006, which shows that the high court denied the writ of certiorari sought by the casino.
But if anyone was wondering, that still doesn't mean we're going to let anything and everything pass in the comments section here. (American Constitution Society Blog, Feb. 26 (via GruntDoc); Reynolds, Feb. 26) (Universal Communication Systems v. Lycos).
Attorney Donald Caster writes from Cincinnati:
OK, I'll admit it: I'm a "trial lawyer," and I usually disagree with Overlawyered's point of view. (In fact, usually when I read the blog, I'm thinking about what a great job a particular lawyer did to get the result that you're now protesting.) But I get nearly as agitated as you folks do over the abusiveness of coupon settlements in class action cases, and I just got notice of such a settlement myself.
Below I've cut and pasted the exact text of the email message I received notifying me of the settlement. The class action has its own website at www.browningsettlement.com. As you can see, the defendant is Experian, and the plaintiffs claim that they made some sort of representations on a website that violated the "Credit Repair Organizations Act."
Class counsel is set to take over $2.5 million in fees. The "benefit" to the class? A settlement in which class members get either (a) a free credit score, or (b) free credit monitoring for two months. And oh, by the way, if you take the latter option, you have to remember to cancel the monitoring, or you'll automatically start getting billed $9.95/month for credit monitoring after sixty days. That reeks of a lack of arms-length negotiation between class counsel and the defendant (what a great deal for the defendant--they get new customers in exchange for settling a class action lawsuit!).
Continue reading Experian class action settlement.
Pop quiz: the police try to pull over a car, and the driver, instead of slowing down, flees at high speed. The police should (A) Let him go; (B) Keep chasing him, and pray that he doesn't kill anybody; or (C) Try to physically stop him by bumping his car with theirs.
Okay, here's the real pop quiz: which of those will not result in taxpayers getting the shaft and trial lawyers making out like bandits? We know from experience that the answer is not (B). The Supreme Court heard oral arguments (PDF) on Monday in a case entitled Scott v. Harris to decide whether (C) is a viable option.
Harris was a 19-year old driver in Georgia who was doing 73 in a 55 MPH zone; when police tried to pull him over, he sped up and tried to escape, reaching at least 90 miles per hour on a two-lane road. Police officer Scott joined the chase, and after Harris drove recklessly for about 10 minutes, running red lights and weaving through traffic on the wrong side of the road, Scott bumped his car to stop him. Unfortunately, Harris lost control, crashed, and was rendered a quadriplegic. A sad ending for Harris, to be sure -- but in a sane world, his fault. In our world, of course, he immediately sued Scott for violating his fourth amendment right not to be "unreasonably" seized.
Over at the Volokh Conspiracy, Orin Kerr, who co-represented Scott on appeal, has been blogging about the case. (Technically, the Supreme Court is addressing the narrower question of whether Scott is entitled to qualified immunity -- but as any Overlawyered reader knows, lawsuits are crapshoots; if immunity is denied and Scott is forced to go to trial, the case will probably settle so that Harris can't win the lottery from a befuddled jury.)
If the Supreme Court rules for the driver -- though oral arguments didn't seem to be in his favor -- then trial lawyers will have successfully created a no-win scenario for police; criminals will be free to flee without fear of police pursuit. Maybe it's just me, but that would seem to be a strange incentive: criminals who surrender peacefully go to jail, and those who refuse to submit are rewarded with cash or freedom.
- Related to this story, a reader (okay, Ted Frank) passes along another police chase lawsuit story which is (predictably) "Not about the money": parents collect quarter-million-plus for kids' deaths fleeing high-speed police chase [Robesonian Online]
- Arguments Merck won't be allowed to make in Madison County Vioxx trial. [Point of Law]
- First Chicago foie gras fines. [Bainbridge]
- Sometimes med-mal plaintiffs deserve to win. [Times-Herald via Kevin MD]
- Curious about the Leonard Peltier pardon-seeking underlying the Geffen-Clinton-Obama split? (And where does Obama stand on pardoning Peltier?) [NPPA; TPM Cafe]
- The polite rejection letter [Parloff]
- Judge Jack to speak at Cardozo March 27. [Point of Law]
Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.
It's a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:
- Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a "public nuisance," even though any harms here are identifiably private.
- Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn't want to hold people responsible for maintaining their own homes.
- Going after the deep pockets rather than wrongdoers: Homeowners can't sue themselves, and landlords don't have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn't and couldn't prove that any of the outstanding problem was caused by any of the defendants.
- Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn't even figured out how much this cleanup will cost, but he's nonetheless sure that it's reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
- Dubious benefit to actual victims: people who have children affected by lead paint aren't the ones who receive money as a result of this case.
- Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.
Of course, we get the obligatory disingenuous comments from the plaintiffs:
Jack McConnell, a lawyer representing the state, called the judge's decision a "huge, huge victory for lead-poisoned children, homeowners and taxpayers."Except, of course, for taxpayers and homeowners who are shareholders in paint companies. Or taxpayers and homeowners who are looking to buy products whose prices will have to rise to cover the costs of lawsuits that may spring up decades down the road because of some unforeseeable risks.
And how it's a victory "for lead-poisoned children" is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers "representing the state," will rake in a few hundred million dollars in contingency fees, though.
Walter Olson also comments at Point of Law.
Ted's Monday roundup links to a story below about a bar applicant who was disqualified because he faked a disability to get accommodations on the bar exam; he also cheated. The punch line is, none of it helped; he failed the exams on which he cheated and got unjustified accommodations. And not just those exams:
According to the Committee’s findings, between July 1988 and July 1998, Bedi failed the D.C. bar examination twelve times and failed the Virginia bar examination six times.I guess he really wanted to be a lawyer.
A lawyer comes to the emergency room complaining that he can't see out of his left eye. The one who examines him is the physician who blogs at Fingers and Tubes in Every Orifice:
"What do you do for a living?" I asked, already knowing the answer."I'm an attorney," he proudly responded. "You've probably seen my ads on the highways."
"Yes, yes. A fair settlement is no accident." (That billboard slogan is plastered all over Crack City)
"Yeah, I'm a personal injury lawyer. I have no problems telling doctors that. I get better care that way, actually. Makes you guys more careful around me."
"Yes, I know you very well, Mr. Cochran. You were the plaintiff attorney accusing me of being a baby killer, remember?!"
Pausing briefly to let him absorb the full irony of the situation, I continued, "As to being more careful around you, all that means is that you'll have a bigger medical bill because of all the unnecessary tests and consultations, but I personally treat everyone the same regardless of the circumstances."
You'll want to see what happens in the rest of the story (Fingers and Tubes In Every Orifice, Jan. 2).
That's Romenesko's summary of this news item about a lawsuit by Chops Restaurant against food critic Craig LaBan over a review published in the city's best-known newspaper, which the item rudely refers to as the InqWaster (Dan Gross, "Chops sues LaBan", Philadelphia Daily News, Feb. 21). More on lawsuits over restaurant reviews: Jan. 3, 2006 (Dallas); Feb. 10, 2007 (Belfast).
Jim Copland, at Point of Law, does a little digging (Feb. 26) to see whether something called the Colorado Home Alliance emerged as the spontaneous outgrowth of local residents' dissatisfaction with the state of construction-defect law.
- High-school basketball player gets TRO over enforcement of technical foul after pushing referee. [Huntington News; Chad @ WaPo]
- Madison County court rejects Vioxx litigation tourism. [Point of Law]
- Faking disability for accommodation disqualifies bar applicant [Frisch]
- DOJ antitrust enforcement doesn't seem to be consistent with U.S. trade policy position. [Cafe Hayek]
- Professor falsely accused of sexual harassment wins defamation lawsuit against former plaintiff, but too late to save his job. [Kirkendall]
- Watch what you say dept.: Disbarred attorney and ex-felon sues newspaper, letter-to-editor writer, Illinois Civil Justice League. (His brother won the judicial election anyway.) [Madison County Record; Belleville News Democrat; US v. Amiel Cueto]
I want to thank Walter Olson and Ted Frank for honoring me by giving me an opportunity to guest blog here while Ted is away this week.
First, I guess I should introduce myself, for those of you wondering who the heck I am. I'm an attorney licensed in New Jersey, with a practice which focuses on commercial litigation. Aside from myself, I have several relatives who are attorneys, so it should be clear that I have nothing against lawyers. (In fact, despite all the evidence to the contrary here on Overlawyered, I happen to think we perform a useful function.)
My axe to grind is with those (such as the folks over at the website Ted affectionately calls "Bizarro-Overlawyered") who want to use the courts, not to enforce agreements or to compensate the victims of wrongdoing, but merely as a way to transfer wealth from corporations to trial lawyers, ostensibly on behalf of consumers.
One of my first close encounters with overlawyering was in the early 1990s, when a classmate of mine got drunk, climbed up on a train, and electrocuted himself; coincidentally, this old incident was mentioned on Overlawyered just a few weeks ago. At the time, I was perhaps naively shocked to find out that someone who was so obviously in the wrong could successfully point a finger elsewhere (or in this case, a lot of fingers) and cash in. The case had everything: a grossly irresponsible plaintiff, innocent defendants whose only fault was having deep pockets, and even the failure of immunity laws to prevent abuse of the tort system. Since then, I've become less naive, but I'm no less shocked at these types of stories.
Oh, and I used to blog about politics more generally at Jumping to Conclusions, although I haven't updated that in quite a long while. In any case, I'm happy to be here.
Retrial is getting under way in the high-profile case against prominent Gulf Coast plaintiff's lawyer Paul Minor and two former judges. Earlier proceedings resulted in the acquittal of Mississippi Supreme Court Justice Oliver Diaz, Jr. of all charges and a mixture of not guilty findings and inability to reach a verdict in the case of other defendants. Our extensive coverage is here.
This supposed lawyer ad, on behalf of "Gene Butterfield" of "Glinder & Glinder", is surely a spoof. It was posted by something called the Kaspar Hauser comedy podcast. Going before a camera can be frightening (tastelessness warning).
If an ice storm leaves you immobile and furious, the law surely must provide you with a remedy, at least if you're at New York's JFK airport, as opposed to being stuck on Interstate 78 in Pennsylvania. Right? (Steve Chapman, "The right protection for airline passengers", Chicago Tribune/syndicated, Feb. 22; "The Politics of JetBlue" (editorial), Wall Street Journal/OpinionJournal.com, Feb. 24).
"A federal jury in San Diego [Thursday] ordered Microsoft to pay $1.52 billion to Alcatel-Lucent for violating two patents for a technology used by hundreds of companies that allows users to play digital music on computers, cellphones and other portable devices." (Alan Sipress, "Microsoft Loses Big In MP3 Patent Suit", Washington Post, Feb. 23). Washington Post tech blogger Rob Pegoraro (Feb. 23):
Alcatel-Lucent's patent payday has all the things that patent-abuse critics hate:* "Submarine" patents, invoked years after a contested invention has hit the market? Check
* Claiming ownership of a media format most people use all the time? Check
* A plaintiff that's failed to commercialize its own alleged invention? Check
* Extortionate royalty demands? Check
(via Kevin Drum, Feb. 23).
Or other bread product as appropriate: California Assemblywoman Sally Lieber concedes the votes "simply [are] not there" for her widely derided proposal to ban the spanking of small children (Jan. 22, Feb. 14), but she'll still try to get the state's regulatory nose into the nursery by pushing a law banning various parental disciplinary techniques, including spanking that employs an "instrument". (Mike Zapler, "No-spanking bid softened", San Jose Mercury News, Feb. 23).
We ask because we saw a couple of blogs speculating about our traffic, and making a mathematically incorrect calculation underestimating it by mistakingly assuming that our 2006 readership had not grown from 2001.
So how much do traffic do we have? The answer: we don't know for sure. If one were to count raw page views, we served 1,176,741 pages in January 2007.
A naive, boastful or deceitful newcomer to the web might try to claim that number as readership. However, a significant share, for us as for any site, consists of spiders from search engines and other mechanical "visitors", 404 pages not found, reloads and various other categories that inflate a proper readership, including periodic "storms" of a hundred thousand or even a million page requests that are unrelated to reader interests and appear to be either DoS attacks or some other form of static interference. (January did not include any major attacks of this sort; November had a big one, which brought its figure to 2.8 million.)
We do know that our PageRank is 7, the same as major blogs like Instapundit and Gawker or sites like Law.com. By comparison, the top law blog, Volokh, has a PageRank of 8; and my own personal unpublicized little-read rarely-posted-or-linked-to vanity blog with under 100 readers/day has a PageRank of 6.
Of course, we don't suggest that people read our blog just because others are doing so or because it's trendy or even because of all the awards and praise we've won (and those pages need about five years of updates); we hope you do so because you appreciate the unique analysis we provide here.
In 1999, Maria Storm had a mole on her right shoulder that was rubbing against her bra strap; Dr. Patrick Zimmerman removed it at her request. The mole did not have an irregular shape or color. Four years later, she was diagnosed with a fatal melanoma on a different part of her body ("Louis Dehner, M.D., a pathologist at Barnes-Jewish Hospital in St. Louis, testified that the mole Zimmermann removed was not the primary spot of the melanoma"), and her family sought to blame her death on Zimmerman, seeking $10.9 million. (Zimmerman biopsies 30% of the moles he sees, and less than 1% of the ones he orders for testing are malignant, suggesting he's already practicing heavily defensively.) A Madison County jury rejected attorney Rex Carr's pleas; Carr (Feb. 6; Dec. 6, 2005; Nov. 6, 2005; Dec. 23, 2004; May 4, 2004; POL Dec. 28, 2004) says he'll appeal. (Steve Horrell, "No award in med-mal case", Edwardsville Intelligencer, Jan. 31; Leah Thorsen, "Doctor sued over cancer death defends his prognosis of mole", St. Louis Post-Dispatch, Jan. 30; Steve Gonzalez, "Collinsville physician cleared in Madison County med mal trial", Madison County Record, Jan. 31).
While on the subject of consumer information websites that funnel readers to lawyers, reader R.F. nominated 4mychild.com, a website about cerebral palsy whose site is bannered "Organizations for Special Needs Children". Scroll down to the bottom of the opening page to find the attorney-advertising disclaimer.
"Voters last November approved Amendment 41, which limited gifts to most government employees and their families to $50. The constitutional amendment was put on the ballot by wealthy entrepreneur Jared Polis and the public-interest group Common Cause." It soon emerged that the measure might prohibit the award of university scholarships to children of government employees or the award of the Nobel Prize to a government-employed scientist. Highly placed Coloradans have been scurrying about for weeks now trying to figure out what to do. (Lynn Bartels and Alan Gathright, "Pressure to fix ethics law", Rocky Mountain News, Feb. 6; Lynn Bartels, "GOP's May says Polis 'threatening' in Amendment 41 talk", Rocky Mountain News, Feb. 9; Chris Frates and Jeri Clausing, "Fix it yourself, backers of 41 told", Denver Post, Jan. 31; Mark Hillman (former Colo. state treasurer), "Ethics amendment creates an ethical dilemma", Independence Institute, Jan. 25; text of Amendment 41 (PDF); Peter Blake (columnist), Rocky Mountain News, Nov. 15, Dec. 20, Jan. 3, and Jan. 20).
Michael Melnitzky, whose wife filed for divorce in 1994, "has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost." “I used to be an art restorer,“ says Melnitzky, a pro se litigant. “Now I’m a litigator. If you’re going to attack me or assault me on a legal front, and I don’t hit back, I would feel dishonorable with myself.” (Ray Rivera, "The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting", New York Times, Feb. 19; Above the Law, Feb. 20).
G. Paul Howes, who's handled Lerach's high-profile litigation over losses arising from the Enron collapse, faces serious ethics charges over actions he took during his earlier career as a federal prosecutor. "On Feb. 1, the D.C. Bar Counsel filed eight charges against Howes after a four-year investigation, accusing him of violating bar ethics rules by committing criminal acts, making false statements in court, offering prohibited payments to witnesses, and interfering with the administration of justice." Ethics proceedings against federal prosecutors are rare; disbarment is among the possible sanctions that could be asked. It doesn't appear Howes is going to win any popularity contests among his former law enforcement colleagues:
Amy Jeffress, deputy chief of the office's Organized Crime and Narcotics Trafficking Section[,] referred to Howes -- though not by name -- during a Jan. 31 debate on the power of prosecutors at American University, Washington College of Law."He actually left the office and moved all the way across the country to San Diego to escape his shame and his bad reputation," Jeffress said, according to a recording of the debate. "He basically became a pariah in our office. His name is a synonym around our office for no-no. You don't want to do what he did."
(Brendan Smith, "Former Prosecutor Charged With Misconduct in Gang Cases", Legal Times, Feb. 15).
Billing itself as a "non-partisan, independent information provider", it invites you to submit your complaint about an unsatisfactory consumer transaction on its automated complaint form. The complaint form notes that reports "become the property of ConsumerAffairs.Com Inc." and you must include your contact information. If you keep reading down, you may notice that "We work with attorneys with specific expertise in many areas of consumer law. It is sometimes necessary for them to contact you in order to determine whether there is a legal remedy for your complaint. There is no charge for any such consultation." (Fred Lucas, "'Consumer Watchdog' Website Faces Complaints, Lawsuits", CNSNews.com, Feb. 12; Childs, Feb. 16).
Charlie Weis, Notre Dame football head and former New England Patriots assistant coach, has been the plaintiff in a Massachusetts medical malpractice case where he seeks a windfall because his gastric bypass surgery, like many gastric surgery bypasses, had complications that he has recovered from. Unfortunately, a juror collapsed during proceedings, and the defendant doctors rushed over to help her before the other jurors could be removed from the courtroom, and this concern for the health of another human being means that the doctors, whose schedules have already been disrupted by the lengthy trial, will have to go through it all over again, as Weis successfully moved for a mistrial. [AP/SI-CNN via Quizlaw]
- Update to Jan. 5 post: "Gifties" lose t-shirt battle. Amber Taylor is not impressed by Posner's opinion, though. [Above the Law; Taylor]
- Update to our earlier odometer class action; turns out SAE gives odometers a 4% leeway, so Honda is paying millions for following industry standard. Nissan is still fighting the suit, and other manufacturers will likely be hit. [Gannett/Asbury Park Press]
- $12M for suicide despite hospital workers putting themselves in danger in unsuccessful attempt to prevent death [Birmingham News]
- Electric slide inventor sues YouTubers who perform dance wrong. [CNet (h/t LN)]
- Now the NFL wants to trademark "The Big Game." [Schwimmer; earlier on Overlawyered]
- NAM blog on punitive damages, likes what I have to say. [NAM blog]
- "Kiss life sciences goodbye if lawsuit bills are passed." [Detroit News via NAM blog; Manhattan Institute]
- "When Flirting at Work Is Flirting With Trouble" [New York Times]
- AG Lockyer's office hid millions of dollars of giveaways to trial lawyer donors. [Point of Law roundup of links]
- Maybe it's time to stop calling myself a fifth-string talking head and recognize that I'm a fourth-string talking head. [Financial Times; Forbes.com; Madison County Record]
Tampa-based Wilkes & McHugh, which has enjoyed much success filing suits against nursing homes in many states, "is now on the defense end of a suit that contends the firm knowingly violated Tennessee law regarding contingency fees." Former client Debbie Howard, who hired the firm to sue a Memphis nursing home, says it "engaged in an unlawful scheme to collect 40 percent or 45 percent in contingency fees of settlement amounts, although Tennessee law caps fees to 33 and 1/3 percent in medical malpractice cases. The complaint says the law firm charged the higher and unlawful contingency fee to hundreds of clients in Tennessee." In its response, the law firm says the complaint is "scurrilous" and based on falsehoods, and says Howard never appealed a Tennessee court order approving the fees. (Liz Freeman, "Tampa law firm faces contingency fees lawsuit", Naples (Fla.) News, Jan. 14; Scott Barancik, "Firm gets a taste of dish it serves", St. Petersburg Times, Feb. 17). For more on the law firm, see Mar. 13-14, 2001, Jul. 6, 2005, and Jun. 22, 2006, as well as Scott Barancik, "Law firm's success against nursing homes has a price", St. Petersburg Times, Jul. 24, 2004.
The tobacco giant's alliance of convenience with Rep. Henry Waxman (D-Calif.) is a bootleggers-'n'-Baptists kind of thing. (Jacob Sullum, "All for Philip Morris", syndicated/Reason, Feb. 21).
Kentucky trial lawyers just won't let up in their po-faced indignation about that innocuous cartoon in the state bar magazine (see Feb. 15 roundup). "'The cartoon exhibits an indifference to the rights of all Kentuckians to access the justice system -- the very system the KBA is charged with preserving on behalf of its members and their clients,' Bowling Green lawyer Steve Downey, the immediate past president of the trial lawyer group, said in a letter to the bar association." (Andrew Wolfson, "Trial lawyers find nothing funny in cartoon", Louisville Courier-Journal, Feb. 19). David Lat covers the story (Feb. 20). What would have taken guts, I think, is for the Kentucky bar magazine to have run a cartoon making reference to the state's deeply embarrassing fen-phen fee scandal. But let's not hold our breath waiting for that.
Yesterday I joined Vicki McKenna on Madison, Wisconsin's WIBA to discuss Katrina insurance litigation as well as the Supreme Court's punitive damages rulings. And on Jan. 23 I was a guest on Jim Blasingame's national "Small Business Advocate".
Allstate used applicants' credit ratings as one piece of information in rate-setting, a baldly rational policy if you accept that credit ratings do on average help predict future consumer behavior. Lawyers sued claiming that the credit ratings were really an improper proxy for race, and a federal judge has now approved a class action settlement in which Allstate will revamp its policies and pay six named plaintiffs $5,000 each, minority policyholders will be free to seek refunds of $50 to $150 if they get around to it and can prove they qualify, and plaintiff's lawyers will get $11.7 million. ("Judge Approves Settlement in Allstate Class-Action Suit", AP/WOAI, Feb. 17).
In 2001, when a CVS pharmacy opened on North Middletown Road in Pearl River, N.Y., Rockland County administrators approved a curb cut on the nearby sidewalk to facilitate wheelchair access from the road to the sidewalk. Three years later Stacey Gersten, 48, who had a "mild developmental disability", tried to cross the road on foot at that point and was struck and killed by a hit-run driver, Duane Boos. In December a jury agreed to assign 65 percent of the blame for Gersten's death to the county; it assigned 35 percent of the blame to Boos and none to Gersten. James Lynch, a Paramus, N.J. lawyer who represented the Gersten family, "said the jury agreed that the curb cut at the sidewalk outside the CVS was an 'invitation' for pedestrians to cross at a 'dangerous spot'," one with no crosswalk and no curb cut at the opposite side.
In short, it would seem that the county is liable because in its effort to help wheelchair users, it provided an inordinate temptation to jaywalkers. And as disabled advocates regularly point out, wheelchair users are not the only group that benefits from curb cuts. Bicyclists and scooter users, parents with strollers, the elderly with walkers, people using a dolly or cart to manage a load of goods -- all may legitimately desire midblock access to a road without intending to cross to its other side.
Without visiting the actual site of the accident it's hard to draw definitive conclusions. It would be a shame, however, if liability-averse road authorities drew the lesson that from now on it is going to be legally risky for them to install curb cuts anywhere other than at crosswalks. (Khurram Saeed, "Rockland hit-and-run victim's family wins $1 million lawsuit", White Plains (N.Y.) Journal-News, Dec. 22).
Some initial thoughts on Philip Morris v. Williams from Jim Copland at Point of Law. By a 5-4 vote, in an opinion by Justice Breyer, the Court held that a punitive damage award cannot be based in part or whole on a jury's desire to punish harms committed against non-parties to the litigation, although (a fine distinction, if indeed a tenable one) such harms may be taken into account in determining the defendant's degree of reprehensibility.
More: Ted comments and rounds up links, also at PoL. Roger Parloff (Feb. 20) calls the majority's distinction "narrow" and "confusing". And Eric Turkewitz offers