March 2007 Archives

"Attorney Paul Minor, former Circuit Judge John Whitfield and Chancery Judge Wes Teel were found guilty Friday of all charges in a judicial bribery conspiracy." (Anita Lee, "Guilty, guilty, guilty", Biloxi Sun-Herald, Mar. 31; Jimmie E. Gates, "Minor, 2 others found guilty", Jackson Clarion-Ledger, Mar. 31). We've been covering this corruption story, which arose from the financial coziness with judges of one of Mississippi's most prominent trial lawyers, since it broke: see Mar. 16, etc., as well as Mar. 22.

More: Anita Lee, "Hard Time", Biloxi Sun-Herald, Apr. 1.

Because a hospital bill for $12,000 for 15 minutes of trauma care after a smallish motorcycle accident just demands to be shifted somewhere (David Lazarus, "Uninsured patient billed more than $12,000 for broken rib", San Francisco Chronicle, Mar. 30).

In our legal system, appeals courts very rarely assess the credibility of witnesses; the theory is that, unlike the appellate court, the jury and trial judge had an opportunity to observe the witness firsthand, and were in the best position to determine whether the witness was telling the truth.

Last October, a Muslim woman sued a car rental company in Michigan small claims court; after the court would not agree to give her a female judge, she refused to take off her veil when testifying. (She was wearing a version of the veil which covered all but her eyes.) The judge explained to her that he needed to be able to see her face to evaluate her credibility, but she still refused; as a consequence, he dismissed her case.

Yesterday, she filed a federal lawsuit against the judge, arguing that he violated her First Amendment rights. (It appears that she asks only that she be allowed to wear a veil while testifying at her next hearing (the car rental company has now sued her); she currently is not seeking monetary damages.)

The issue was discussed extensively on the Volokh Conspiracy last December; Professor Volokh's conclusion: the judge was probably legally in the right when he dismissed the case.

"House Republicans are pushing legislation to protect airline passengers from lawsuits for reporting suspicious behavior that might be linked to a terrorist attack. Rep. Steve Pearce, New Mexico Republican, introduced the Protecting Americans Fighting Terrorism Act of 2007 on Thursday, a week after a lawsuit was filed by a group of Muslim imams who were taken off a US Airways flight in November." (Dec. 6, Mar. 15, Mar. 22; Audrey Hudson, "Hill bill protects flying public", Washington Times, Mar. 24). Syndicated columnist and blogger Michelle Malkin has been on top of developments ("The John Doe Manifesto", National Review Online, Mar. 28; blog posts, Mar. 24, Mar. 27, Mar. 28).

The Minneapolis Star-Tribune has a response from the imams:

The imams' Manhattan attorney, Omar Mohammedi, said the suit "is directed at the airlines and the airport, not passengers."If someone has a legitimate security concern, we're not going after that person," he said. "Or if someone saw them praying and reported that out of ignorant fear, we aren't going to target that.

"But if someone lied and made a false report with the intention to discriminate, such as in saying the imams made anti-American comments and talked about Iraq when in fact nothing like that ever happened, we have the right to challenge that," Mohammedi said.

(Pamela Miller, "Attorney offers aid to defendants in imam suit", Minneapolis Star-Tribune, Mar. 22). USA Today has editorially weighed in on the passengers' side: "This legal tactic seems designed to intimidate passengers willing to do exactly what authorities have requested — say something about suspicious activity." ("Our view on post-9/11 travel: Clerics' lawsuit threatens security of all passengers", Mar. 27; opposing view by Arsalan Iftikhar). See also Marc Sheppard, American Thinker, Mar. 27.

P.S. And now AP is on the case ("Imams removed from flight may sue passengers", AP/MSNBC, Mar. 30), and Sen. Fred Thompson ("Suing for Silence", National Review Online, Mar. 29). The imams have now amended their complaint to cast a seemingly less capacious net for John Does: Audrey Hudson, "Imams narrow target of 'Does'", Washington Times, Mar. 31.

We've recently discussed the Kentucky fen-phen scandal, in which the plaintiffs' lawyers are accused of stealing tens of millions of dollars from their clients; there's another brewing scandal involving fen-phen lawyers in New York.

Napoli Kaiser Bern (now known as Napoli Bern) represented more than 5,000 plaintiffs who had opted out of the larger class action suit against manufacturer AHP; a whistleblower, or disgruntled ex-employee (take your pick) alleged that Napoli Bern manipulated the amounts of the settlement to be paid to each plaintiff -- giving more to its own direct clients -- so that Napoli could maximize its own profits at the expense of other law firms.

More important is the allegation that Napoli Bern lied to its clients (and to its own expert witness on ethics) in making them think that the amounts allocated to each plaintiff had been determined by AHP and reviewed by a special master appointed by the court; in fact, it appears that Napoli Bern may have decided unilaterally how much to offer each plaintiff. Yesterday, a New York state judge ruled that the allegations had sufficient merit to reopen the settlement and send the allegations against Napoli Bern to trial.

The stakes are high here; the total amount of this settlement -- confidential, but reportedly at least a billion dollars -- is not at issue, but the distribution of that money among the lawyers and plaintiffs is. As the judge noted, in theory the penalty could be as severe as requiring Napoli Bern to forfeit all fees earned in the case. (Isn't mass tort litigation fun? Billions of dollars of Other People's Money floating around, waiting for lawyers to figure out how to distribute it.)

(Previously covered on Overlawyered: Feb. 2005, Dec. 2001)

Don't load up on stocks in that newfangled biometric scanner technology just yet. A federal complaint alleges that workers have a religious right not to sign in using handprints; Matthew Heller has the details and the complaint. Canada has required reasonable accommodation of such beliefs, while New Zealand rejects it. American law simply requires beliefs be "sincerely held."

Four high school students from Arizona and Virginia are suing the anti-plagiarism service Turnitin, iParadigms LLC, under the copyright laws for archiving copies of their papers in its database. [WaPo] There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.

Update, March 31: Lots of commenters disagree with me, so it's encouraging to see Eugene Volokh on my side. Turnitin's own analysis (pdf) is public.

The number one category of malpractice lawsuits these days? Suits against radiologists for missing signs of breast cancer on mammograms. "Meanwhile, the number of certified mammography facilities is declining. There were about 11 percent fewer places to get mammograms in the United States in 2006 than there were six years earlier, according to the government. That's 1,101 fewer mammography centers across the country." (Diane Cochran, "Fear of lawsuits means fewer radiologists read mammograms", Billings Gazette, Mar. 18)(via KevinMD). More: Nov. 2, 2000, Sept. 24, 2002, May 12, 2003, Oct. 3, 2003, Jun. 14, 2004, Jul. 10, 2005, Dec. 18, 2006.

The latest AEI Liability Outlook, which has my take on two years of CAFA, is on-line.

A reader writes:

Just in case your readers think that blatantly rent-seeking, anti-competitive lawsuits are unique to the United States and don't happen in loser-pays jurisdictions, here's a story to read.

Love Overlawyered (and I am primarily a plaintiffs' lawyer)!

Paul Karl Lukacs (Knife Tricks)

Ohio attorney John Ferron, and his client/serial plaintiff, Nathaniel Burdge, thought they had discovered a good moneymaking scheme. They found an obscure Ohio consumer protection statute, one which required retailers to stop printing credit card numbers or expiration dates on sales receipts, and they began suing retailers left and right, claiming the law entitled them to $200 in damages (plus, of course, attorneys fees) for every violation of the law. (The law had only been enacted in 2004, so many retailers were not in compliance.)

Fortunately -- though not for Ferron or Burdge -- Ohio judges had some common sense, and most quickly held that the words of the statute which explicitly stated that to sue, one had to be "a person injured by a violation" actually meant what they said. Since Burdge wasn't actually injured, they dismissed his lawsuits. That didn't deter Ferron/Burdge; they kept filing the suits and kept appealing the dismissals. Finally, one appeals court had enough (PDF), and denounced them in ringing language:

Burdge could not demonstrate that an actual injury was not a required element of his claims because R.C. 1345.18 explicitly sets out an injury requirement. Additionally, Burdge and his attorney had been repeatedly advised of this injury requirement by trial courts in opinions decided on their merits prior to March 2, 2006, when the notice of appeal was filed in this case.²¹ The facts as pleaded in the complaint in this and the other cases indicate that Burdge purposely made purchases at stores that were printing his expiration date on his receipt in order to recoup statutory damages totaling at least $12,800. Burdge’s actions are totally inconsistent with any allegation of actual injury; rather, his actions demonstrate that he attempted to reap a profit from this activity.

We are offended by the contrived nature of this frivolous action, which has wasted much time, paper, and other resources to the prejudice of legitimate disputes between parties, especially those involving the consumer-protection laws of Ohio.

Speaking of Good Samaritans: On January 2, New Yorker Wesley Autrey jumped off a subway platform in front of an oncoming train to rescue a man who had fallen onto the tracks. After a wave of good publicity, he signed a contract with an attorney, Diane Kleiman, to help him exploit his newfound celebrity.

Now... he's suing that attorney, claiming that the contract he signed was unfair and asking that the court declare it void:

Autrey, a 50-year-old Bronx construction worker, says in court papers that the contract is "a one-sided agreement" he was induced to sign by "fraud" and that it gives the lion's share of everything he earns to Kleiman and her business partner, Marco Antonio Esposito, operator of an entertainment production company.

[...]

Autrey's lawsuit, filed Friday, says the contract gives Kleiman and Esposito exclusive rights to exploit his name and reputation and gives them ownership of intellectual property rights to his story.

The contract also gives Kleiman and Esposito the right to receive all gross receipts from commercial exploitation of Autrey's name and to keep half those receipts, whether or not they helped generate the money, court papers say.

The match continues between Brooklyn lawprof Wendy Seltzer and the National Football League (see Feb. 22)(Jacqui Cheng, "NFL fumbles DMCA takedown battle, could face sanctions", ArsTechnica, Mar. 20; Lattman, Mar. 21; Ambrogi, LegalBlogWatch, Mar. 22).

"Written and sung by the Bar and Grill Singers for Volunteer Legal Services of Central Texas (hat tip: reader Victor Serby):

A further stinging rebuff in court for the glamourpuss tort-chaser: "A judge on Friday dropped the Beverly Hills Unified School District from a lawsuit that claims an oil well on a high school campus caused cancer in former students. Superior Court Judge Wendell Mortimer Jr. said he was not persuaded that the well operating for decades at Beverly Hills High was a danger. He also found no evidence that the school district was aware of any danger." ("Beverly Hills schools dropped from lawsuit over campus oil well", AP/San Diego Union-Tribune, Mar. 23). For more on the Beverly Hills case, see Mar. 16, 2004, Nov. 3, 2005, and Dec. 1, 2006. For Brockovich's rebuffs in Medicare-billing cases, see Mar. 15, etc.

Last week, Ted posted a court decision about a lawyer/client team who have turned the Americans with Disabilities Act -- in theory, a law designed to protect actual consumers -- into a full-time career, patronizing businesses for the specific purpose of being able to sue them. Not all such lawyer/client teams bother to even take the step of patronizing the businesses, however; some just skip the damages and go right to the extortion, hoping the defendants will pay rather than spend the money to defend themselves.

Many times, their business model works, but occasionally, it backfires, as it did last week on serial ADA litigant Theodore Pinnock. (Technically, Pinnock is the attorney, not the plaintiff. But why split hairs? The plaintiffs, Delores Jackson and the imaginary organization she "represents," the Association of Women with Disabilities Advocating Access, are just fronts for Pinnock.) On Friday, a federal judge in San Diego sanctioned Pinnock, ordering him to take an ethics class and pay $15,000 in attorneys fees to Marcos Mout, a defendant he had sued last October. Mout owned a convenience store, and was sued because the store was allegedly inaccessible to the disabled. Well, not quite:

Jackson, who uses a walker, said she had "researched" the store and had photographic evidence of numerous violations. In the complaint, she said she had intended to patronize the store but would have been thwarted by problems with signage, the entrance door, interior paths, counter height, parking and the restroom, among many things.

The businessman's attorney countered that the convenience store wasn't even open to the public at the time Jackson was allegedly denied access, having been seriously damaged in December 2004 by a flood.

Mitch Wallis, attorney for convenience store owner Marcos Mouet, also told the court that the small store, which remains shuttered, didn't even have a public restroom. Jackson's lawsuit also alleged that interior pathways weren't wide enough, but Mouet's attorney noted that the shelves had been pushed against the wall to fix the flood damage.

Incidentally, the Bizarro-Overlawyered crowd will tell you that frivolous suits are easily, quickly, and cheaply disposed of by the courts; this case illustrates yet again how badly they misunderstand the nature of the legal system. Because the suit against Mout's convenience store made superficially legitimate allegations, it cost Mout at least $15,000 to defend the suit. (He actually claimed legal costs of $38,000 in making his motion for sanctions, but the court found that $15,000 was a more reasonable figure.) And that was for a suit that lasted "only" five months.

Previous coverage of Pinnock: Apr. 2006

I've long complained that the Tillinghast/Towers Perrin estimate of the cost of the tort system is a fundamental underestimate because of its lack of measurement of second-order effects.

I haven't had a chance to analyze the PRI report in detail, but their figure of $865 billion/year (6.6% of the GNP), which includes the effect of the tort system on safety, employment, innovation, rent-seeking, and rent-avoidance, is around the right order of magnitude, though it's a little much to expect three-digit accuracy from the estimates the study makes. (Cross-posted at Point of Law.)

"Just tell ‘em you’re a doctor. ... Booooiiinnnggggg. ... Bounced out like a SuperBall on a hot, dry pavement." (Dr. Wes, Mar. 19).

Alexandra Van Horn was a passenger in a car that ran into a light pole at 45 mph. Lisa Torti, a passenger in a car following behind, stopped at the crash scene and tried to render assistance by lifting Van Horn out of the car. Van Horn emerged from the accident a paraplegic, although court testimony differed on whether the accident itself or Torti's attempt to pull her out of the vehicle was responsible for this. Now a California appeals court has ruled that the state's Good Samaritan liability shield does not protect Ms. Torti from Ms. Van Horn's negligence suit because it "only protects people from liability if they are administering emergency medical care. The perceived danger of remaining in the wrecked car was not 'medical,' the court ruled." ("Court: Law may not protect Good Samaritan from suit", AP/CourtTV, Mar. 23).

The old WASP-lightbulb joke comes to life at the headquarters of the BBC, although while waiting in the dark staff are expected to pass the time with a health and safety manual rather than a drink. (Dan Newling, "Barmy BBC ban on staff changing lightbulbs", Daily Mail, Mar. 25).

The Legal Times has a great deal more about the litigiousness of Mr. Sibley:

...we debunked a debunking of Bodine v. Enterprise High School, the most famous burglar that fell through the skylight lawsuit. (The promulgator of the original fake debunking promised a comprehensive response "in the next week", though, 26 weeks later, we haven't seen it.)

Now, Hawaii is considering legislation similar to California's that would give immunity to property-owners sued by people injured in the course of committing particular felonies, though it's not clear to me that it would apply to unarmed burglary, which seems to only be a "Class C" felony in Hawaii.

• More fen-phen scandals: Possible smoking-gun email in Kentucky case (see Walter's post today) came from Chesley firm computer; Vicksburg lawyer first attorney convicted in Mississippi fen-phen scam. [Courier-Journal via Lattman; Clarion-Ledger (h/t S.B.)] (Updated with correct Courier-Journal link.)
• Allegheny College found not liable by jury for student's suicide; school raised issue of student privacy concerns. Earlier on OL: May 30; Dec. 7, 2004. [WSJ]
• Update on the tempered glass versus laminated issue earlier discussed in Overlawyered (Feb. 15, 2006; May 16, 2005; May 13, 2005, etc.) [LA Times]
• Massachusetts court rejects quack sudden acceleration theory. (See also Dec. 20, Aug. 7, etc.) [Prince]
• California bill would bar carpenters from school campuses. [Overcriminalized]
• New book: Antitrust Consent Decrees in Theory and Practice [Richard Epstein @ AEI]
• To be fair, I went to school with "young Mr Sussman, the boyish charmer", and I don't know how to pronounce "calumnies" either—it's one of those words I've only seen written, and never heard spoken [Steyn; MSNBC]

The newspaper reprinted my warning labels column yesterday (Walter Olson, "Product labels have come unglued from reality", Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:

I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned "Shut off engine before checking or replacing belt". I know the reason for this warning - - Somebody, somewhere...

While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert", Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the "firefighter's rule" which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster ("Firemen file arson lawsuits", Feb. 2). And a couple of publicity clips from last year that I didn't round up at the time: at the North County Times' The Californian, Bridgit Jordan quotes me on Mayor Bloomberg's anti-tobacco philanthropy ("Donation may go up in smoke", Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the "creeping oversight" of New York City government operations obtained by the feds through consent decrees and the like ("Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government", Aug. 15).

Back in November and December of 2006, there was an E. Coli outbreak involving Taco Bell restaurants; dozens of customers were sickened. (It goes without saying that this led to lawsuits against the restaurant chain by those who got sick.) By early December, health officials had linked the outbreak to the chain; Taco Bell immediately went into action to locate the source of the problem.

Initial testing indicated that green onions used by Taco Bell were contaminated; moreover, in previous outbreaks, green onions had been the problem. So Taco Bell, in an effort to reassure the public, announced its findings and assured the public, via a series of press releases over the next few days, that "in an abundance of caution" it was removing green onions from its restaurants and would no longer sell them.

A few days later, Taco Bell announced that in fact green onions were not the culprit, but that to be extra-cautious, it would switch produce suppliers. (As we know, it turned out that lettuce was probably the source of the problem, and this was announced.) Everything that Taco Bell said was accurate; moreover, it correctly informed the public that green onions were not to blame once the CDC had confirmed this. Additionally, Taco Bell never mentioned the identity of its green onion supplier. Nonetheless, that supplier, Boskovich Farms, filed a lawsuit against the chain this past Friday, accusing Taco Bell of defamation and a series of related claims.

In short, Taco Bell is being blamed for being too open with the public in revealing information as the investigation developed. Of course, to the extent that Taco Bell failed to provide this information, the lawyers for the people who were sickened would be screaming "cover up."

By the way, you may wonder why Boskovich Farms is claiming it was defamed even though Taco Bell never mentioned its name. Well, the company claims that those in the produce industry knew its identity as Taco Bell's green onion supplier, so even though Taco Bell never mentioned it by name, its reputation was harmed. A reasonable claim, in the abstract. Presumably, though, those knowledgeable and sophisticated enough to possess this information are probably sophisticated enough not to be swayed by a Jay Leno monologue (!) almost three months after the incident -- one of the two pieces of evidence cited by Boskovich in its complaint.

Ted posts an entry on the Americans with Disabilities Act below; that's a common topic on this site. Why? Because it's a completely standardless law; while there are a few guidelines provided by various regulatory agencies, the law as written requires "reasonable accommodations" -- a standard which is inherently subjective and which can only be determined after the fact. A field day for trial lawyers.

Case in point: I'm sure many people can imagine a person with a "severe and painful degenerative arthritic condition" suing because his employer forces him to work without breaks for rest or meals. An employee needs a short break, isn't given it by his slavedriving employer, so he files a lawsuit. Understandable. But how many people would have thought that they could be sued for being too nice to an employee?

Well, under the ADA, it can happen. Last week, a Florida postal worker sued the Postal Service for giving him lunch breaks. He claims his arthritis is exacerbated by not moving around, and therefore it amounts to discrimination under the ADA not to let him work through lunch. (No word on why he can't keep active on his own during lunch.)

We've been beating the drums on this one for a while (Mar. 6 and Aug. 25, 2006, Jan. 24, Feb. 14, Feb. 21, Mar. 19, 2007; Point of Law May 10, 2005) and it's nice to see the Times's Adam Liptak with a front-pager this weekend on the affair. The story begins by telling the story of what happened when W.L. Carter, one of the clients in the 440-member batch, went to pick up his check from the fen-phen settlement:

The check was, for starters, much smaller than he had expected. And his own lawyers threatened to retaliate against him if he ever told anyone, including his family, how much he had been paid. “You will be fined $100,000, you will go to jail and you will be sued,” Mr. Carter recalled them saying.

Liptak writes: "Legal experts said the fraud might be one of the biggest and most brazen in legal history." Or at least one of the biggest and most brazen that's come to light: batch settlements in mass tort cases are frequently so secretive in their details, and so carefully drawn up to repel inquiries from outsiders or from clients themselves about who got what, that we can at best speculate about whether the Kentucky scandal is an outlier. ("Fraud Inquiry Looks at Lawyers in Diet-Drug Case", Mar. 22).

P.S. As Ted notes above, today's Louisville Courier-Journal adds some new information about the alleged role played by Stanley Chesley's Cincinnati law firm (Andrew Wolfson, "Court filing ties lawyer into diet- drug pay scheme", Mar. 26; Lattman, Mar. 26).

A price tag on not screening for merit: "A lawyer representing three people who sued their co-workers seeking a share of their $315 million lottery win was ordered Tuesday to pay a nearly $382,000 fine. Orange County [California] Judge Michael Brenner ordered attorney Mark H. Williams to pay the seven lottery winners after determining he pursued the lawsuits knowing the allegations lacked merit. The amount was the equivalent to legal fees incurred by the 'Lucky Seven,' who pooled money to buy the winning Mega Millions multistate lottery ticket, said defense attorney Larry S. Zeman." Williams, of Long Beach, Calif., represented "three co-workers who claimed they deserved a share of the jackpot because of an oral agreement that everyone would be included whenever they pooled their money to buy tickets". (AP/Contra Costa Times, Mar. 20).

"The [California] Coastal Commission and a national environmental group sued the Navy on Thursday over its refusal to take certain precautions to protect marine mammals during military training exercises off the coast of San Diego. While the commission's legal action is a rarity, the Natural Resources Defense Council already had sued the Navy four times over its use of high-intensity sonar." We last covered the controversy, and discussed the implications for national defense, Jul. 6, 2006. (Terry Rodgers, "Coastal Commission sues Navy over use of sonar", San Diego Union-Tribune, Mar. 22; Alicia Chang, "Calif. Coast Panel Files Navy Sonar Suit", AP/Washington Post, Mar. 23).

Stealing an idea from Tyler Cowen, I hereby take requests for special topics to be covered. I make no promises, but here is your chance. Comments are open...

A team of doctors at North Fulton Medical Center worked on Josh Coleman's back surgery in 2003. Dr. Frank Puhalovich had a minor role: "he was only in the operating room for about 10 minutes making sure a technician properly hooked up a monitor that tracks nerve impulses along the spinal [cord] through electrodes attached to Coleman's head and feet." But after Puhalovich left, during surgery, the alarm went off: attorneys blame the surgeons' failure to respond to the alarm in a timely fashion for Coleman's paralysis. Coleman sued everyone involved, and all the doctors settled, except Puhalovich. So Coleman proceeded to trial against Puhalovich, blamed him also, and a jury awarded $11.7 million. The press coverage gives no indication what the theory of liability is against Puhalovich.

Joshua Coleman, sitting in a wheelchair next to his attorneys, Bill Stone and David Boone, smiled as the verdict was announced after the two-week civil trial.

"Josh is high as a kite right now," Stone said. "He's going to have a great weekend."

Update: Kevin, MD post with clever title Shotgun yields a jackpot.

Flushing, Mich.: The $122,000 jury award should help balm Michael Sabo's memory of the injury inflicted by the wanton Siamese, but for some reason the whole affair "has created tension between Sabo and his sister," Jean Toney. (Mary K. Brunskill, "Court Awards Man $122,400 For Cat Bite", All Headline News/NCBuy, Mar. 19; AP/CBC, Mar. 18).

We've had many stories on frequent filer Jared Molski, the vexatious litigant who has filed hundreds of ADA actions in the last five years, and his lawyer Thomas Frankovich, briefly suspended for related ethical violations. Today the Ninth Circuit came down with an opinion in the case of Molski v. M.J. Cable:

Molski, who is paraplegic, sued Cable’s for violations of the
Americans with Disabilities Act (“ADA”) and California’s
Unruh Civil Rights Act (“Unruh Act”), alleging that Cable’s
failed to accommodate the disabled. Although Molski provided
uncontradicted evidence that Cable’s did not identify
and remove architectural barriers, the jury returned a verdict
for the restaurant. The District Court denied Molski’s motion
for a new trial, speculating that the jury could have reasonably
concluded that because of Molski’s record of litigiousness, he
was a “business” and not an “individual” entitled to the
ADA’s protections. We reverse.

[...]

On cross examination, Molski acknowledged that: he did not complain
to any of Cable’s employees about his access problems; he
had filed 374 similar ADA lawsuits as of October 8, 2004;
Frankovich had filed 232 of the 374 lawsuits; even more lawsuits
had been filed since that date; Molski and Frankovich
averaged $4,000 for each case that settled; Molski did not pay
any fees to Frankovich; Molski maintained no employment
besides prosecuting ADA cases, despite his possession of a
law degree; Molski’s projected annual income from settlements
was $800,000; Molski executed blank verification
forms for Frankovich to submit with responses to interrogatories;
they had also filed lawsuits against two other restaurants
owned by Cable’s; they had filed a lawsuit against a nearby
restaurant; and Sarantschin obtained up to 95% of his income
from Frankovich’s firm for performing investigations for
ADA lawsuits.

The court acknowledges Molski's notorious history as a vexatious litigant, but effectively holds that the ADA permits such strategies. That legal holding appears correct (the ability of professional litigants to extort small businesses is a statutory problem with the ADA and the Unruh Act that needs to be solved by the legislature, rather than by courts). But the jury could have chosen to disbelieve Molski's testimony, given that Molski had the burden of proof and had substantial pecuniary motivation. The Ninth Circuit simply refuses to acknowledge this possibility in reversing the jury's verdict. (It's unclear whether testimony the restaurant vice president provided on cross-examination provides sufficient admissions to justify the appellate court's decision; it is possible that this is the case.) Worse, in dicta in footnote 3, the Ninth Circuit suggests that it may have been improper for the defendants to have cross-examined Molski on his full-time litigation career because such evidence would have been "irrelevant." (Via Bashman.)

Update: The On Point blog (sadly still missing permalinks, though now with an RSS feed) posts the trial court decision denying a new trial, which is less than absolutely persuasive.

For a viral marketing campaign, Coca-Cola pranked its own in-house counsel by sending improvisational actors portraying brand-manager employees to attorneys asking if they could sue Coke Zero for tasting so much like Coca-Cola; the results are on a series of videos on YouTube. So far none of the victim lawyers have sued. (Janet Conley, "Frivolous litigation: How Coke ‘punk’d’ its lawyers", Daily Report, Mar. 23 (via BLT)).

Perhaps related: Mar. 6.

Recently, I left a comment on the Bizarro-Overlawyered website commenting on the Milberg Weiss Fellow's appallingly dishonest misrepresentation of a Walter Olson column, reprinted on two or three other left-wing websites and still not retracted, though Milberg Weiss Fellow Cyrus Dugger has had time to write over a dozen other posts since then. The comment has not been posted.

Fair enough: it's their website, and they're entitled to slant their comments section so that critical comments are not posted, and I could use all the disincentives I can get not to waste time in comments sections of other blogs. But I find it quite amusing that this policy is engaged in by a website that (1) threw a veritable tantrum because we stopped posting obsolete trackbacks and accused us of censorship because we wouldn't let Justinian Lane monopolize the comments section with off-topic comments and (2) cares more about hypocrisy than actual wrongdoing.

No, this case isn't going to get messy: in 2004, a Long Island couple went to a fertility clinic to help them get pregnant with a biological child. Apparently, the clinic botched the procedure by using the wrong sperm (Oops!); the couple figured it out when they noticed that the child was black and they weren't.

So they sued the clinic for malpractice and infliction of emotional distress. (Just for good measure, they sued their obstetrician, who had nothing whatsoever to do with the actual fertilization; the court dismissed that claim. Gee, I wonder why medical malpractice insurance rates are so high.) The court rejected the emotional distress claim, ruling that (as most courts do) a baby being born is not an injury to the parents, but it allowed the malpractice claim to proceed.

Speaking of emotional distress, the judge handling the case quoted the parents as saying things every child wants to hear from her parents:

"[W]e are reminded of this terrible mistake each and every time we look at her."

"We are conscious of and distressed by this mistake each and every time we appear in public."

In response to my post below about inadequate sanctions in the Econo Lodge case, Stephanie Mencimer asks how the costs of frivolous litigation can be so oppressive, how it can cost millions of dollars to defend against them, given that -- in her view -- the defendants can just hire paralegals to prepare boilerplate responses.

Well -- as Ted points out in the comments to her post -- I had said "thousands," not "millions." But the bigger problem with what she wrote is that she dramatically underestimates the burden and cost of litigation. We'll put aside the fact that her proposal -- to have paralegals file boilerplate responses -- would constitute legal malpractice on the part of the defense attorney. Of course it's cheaper when cases can be decided (as Mencimer suggests) "with no discovery, no depositions and apparently not even a court appearance" -- although it's not clear from the Econo Lodge case that in fact there were no court appearances. But other cases, even ones that are completely meritless, require a lot more before the defendant can be vindicated.

Case in point: Kinderstart v. Google. The complaint was yet another attempt to sue Google over its rankings of web pages for search results. (Another suit along those same lines: Mar 1) Only part of the case was frivolous (the federal judge awarded sanctions against the plaintiff on two points (PDF of sanctions decision), but the entire case was meritless, as the court ruled (PDF). Google is a private business, and the courts keep rejecting the notion that lawyers should decide how Google can rank websites. Every claim made by Kinderstart was resoundingly rejected; Eric Goldman has the gory details.

But even though the case was dismissed before discovery even began, that didn't make it -- contrary to the beliefs of so many anti-tort reformers such as Mencimer -- quick. In fact, it took a full year to dismiss the case (and there's always the possibility of appeal). So why, if it was such a loser, did it take so long? Because after the court dismissed it the first time, the judge allowed the plaintiffs to amend the complaint; in all there three versions of the complaint filed. Google had to respond to each one, and there were in-court hearings each time Google moved to dismiss the case. Google also had to file an anti-SLAPP motion, a motion to strike the complaint, and a motion for sanctions.

Google "won" this case, and even won a yet-to-be-calculated sanctions award. But in the end, it took a year and Google spent, conservatively, tens of thousands of dollars to do it, even without discovery. Now, I don't expect every non-lawyer to realize how long and expensive the legal process is -- but Mencimer holds herself out as a pundit on tort reform; you'd think she'd have a little more of a sense of how the system works.

(Previous mention of this case, Oct. 2006.)

Todd Zywicki posts at the Volokh Conspiracy on the issue of professional licensing as a form of economic protectionism; the comment section quickly turns to the issue of attorney licensing. Eliminating lawyer licensing might be one way to lower the costs of litigation; another way would be to allow "unbundling" of lawyer services -- to allow lawyers to provide some services to litigants but not full service representation. (For instance, allowing lawyers to provide research and prepare papers on behalf of litigants, but not to go into court.)

The current legal system is hostile to such an approach, however. On Wednesday, a Federal magistrate judge ruled that a New Jersey lawyer violated ethics rules when he "ghostwrote" pleadings on behalf of a pro-se litigant:

First and foremost, she said, courts generally construe pro se litigants' pleadings liberally and are more flexible in applying procedural rules. "Simply stated, courts often act as referees charged with ensuring a fair fight," she said. "This becomes an obvious problem when the Court is giving extra latitude to a purported pro se litigant who is receiving secret professional help."

[...]

As for the societal benefits of unbundled services, Bongiovanni remarked, "This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC, ghostwriting is antithetical to the public interest."

Bongiovanni ordered that Shapiro enter an appearance by March 30 if he wants to represent Delso, or else cease communicating with her about the case.

• French court acquits satirical weekly that printed Mohammed cartoons (see Feb. 7) [DW]


• Subprime panic: "Does no one remember what it was like to get a mortgage before they were so easily securitized?" [Coyote channeling Tabarrok, Kirkendall and our own Ted]


• Food safety regulators have their eye on Amish bakers at farmers' markets [AP/Ledger-Enquirer]


• Attorney Harpreet Singh Brar, notorious for mass filings against small business (Jun. 4, 2006, etc.), ordered "inactive" by California bar [Calif. Wage and Hour Law]


• "The litigation was much thicker than the music", hence the downfall of 60s girl-group The Shangri-Las (Remember, Leader of the Pack) [NY mag, Althouse]


• Our comments section hits the big time [Chicago-Sun Times quotes Richard Nieporent on South Park]


• Special-needs teen brutally murders fellow student in affluent Boston suburb; did school officials keen on "mainstreaming" him downplay signs of trouble? [Globe, more, AP]


• New Mexico is 49th state to ban cockfighting, sport beloved of early American presidents [Walker @ Reason, Zincavage]


• Rudy Giuliani still vividly remembers defending NYC hospital lawsuits [Point of Law]


• "[Plaintiff husband] denied that he had been abducted by aliens, but stated that his [plaintiff] wife had been" [Cernovich]


• Forced marriage: don't assume it only happens a world away [Dalrymple, Spectator]


• Lawyers stage sham trial aimed at inculpating third party [five years ago on Overlawyered]

I'm happy to announce that David Nieporent has kindly agreed to stay on as a regular contributor to Overlawyered. David's writing also appears at his site Jumping to Conclusions as well as at his new venture with Ron Coleman, Likelihood of Success. His guest posts here in recent weeks have definitely struck a chord among readers. Congratulate us, and him!

After the investment firm was found to have deleted some emails regarding the disputed merger, an incensed trial judge directed the jury to assume that the emails would have backed up Perelman's charges of fraud; a $1.5 billion verdict followed, including $850 million in punitive damages (May 18 and Dec. 17, 2005). Now a Florida appeals court, by a 2-1 vote, has thrown out the award on the grounds that "no legally cognizable damage was shown as a result of the alleged fraud." It did not reach the discovery-sanctions issue. (Joe Bel Bruno, AP/ABCNews.com, Mar. 21; Jordana Mishory, "Fla. Appeals Court Tosses $1.58 Billion Verdict Against Morgan Stanley", Miami Daily Business Review, Mar. 22; Carolyn Elefant, LegalBlogWatch, Mar. 21; opinion text, PDF).

"A black box emitting a high pitched pulsing sound designed to deter loitering teenagers is being used in thousands of sites around Britain just a year after its launch, prompting warnings from civil liberties campaigners that it is a 'sonic weapon' that could be illegal." The so-called Mosquito device emits a disagreeable though harmless noise at frequencies that can be heard by most persons younger than 25 but not by most of those older. "Liberty [a legal-rights campaign] suggests the device may fall foul of article eight of the European convention on human rights, conferring the right to a private life, or article 14 on the grounds that it is discriminatory on grounds of age. The organisation also believes it may contravene environmental health legislation - a suggestion dismissed by inventor Howard Stapleton on the ground that many devices, including cars, are louder." (Lucy Ward, "3,300 sales and rising - ultrasonic answer to teenage gangs sets alarm bells ringing", Guardian, Mar. 17).

We told you the continuing Paul Minor imbroglio in Mississippi (Mar. 16 and many other posts) was going to be worth watching:

[In recent weeks] four former fundraising aides to [former Sen. John] Edwards have spoken voluntarily to FBI agents.

Democrats familiar with the investigation said that neither the current or past Edwards campaigns nor any of his staffers appear to be targets of the investigation, which is trying to determine whether Minor reimbursed his children for $8,000 in contributions to Edwards, an illegal practice known as "conduiting." ...

Trial lawyers are a fixture of Democratic politics and fundraising, particularly in the South, but some also have a reputation in Democratic political circles for a freewheeling approach to campaign finance law. Within Edwards' 2004 campaign, staffers referred to those flamboyant personalities by an acronym: They called them "DFTLs," which according to former staffers was short for "dirty (expletive) trial lawyers."

"No current staffer for John Edwards for President uses that kind of language to talk about our donors," said Kate Bedingfield, campaign spokeswoman.

(Ben Smith, The Politico, Mar. 21). I mentioned Minor's prominence among Edwards' presidential donors in this 2004 W$J piece. And as Ted noted on Jun. 24 of last year the Federal Election Commission has fined the law firm of prominent Arkansas plaintiff's attorney Tab Turner, as well as the Edwards 2004 presidential campaign itself, over Turner's having unlawfully funneled money to the campaign in the guise of contributions by employees at his firm (see Apr. 28-29, 2003).

Following up on Mar. 15 and before that Dec. 6: "Lawyers and a Muslim group say they will defend at no cost airline passengers caught up in a lawsuit between a group of imams and U.S. Airways if the passengers are named as 'John Does' and sued for reporting suspicious behavior that got the Muslim clerics booted from a November flight. ... Gerry Nolting, whose Minnesota law firm Faegre & Benson LLP is offering to represent passengers for free, says the judicial system is being 'used for intimidation purposes' and that it is 'just flat wrong and needs to be strongly, strongly discouraged.'" Also offering help is "Dr. M. Zuhdi Jasser, a Phoenix-area physician and director of American Islamic Forum for Democracy -- a group founded in 2003 to promote moderate Muslim ideas through its Web site -- [who] told The Washington Times his group will raise money for legal fees for passengers if they are sued by the imams." (Audrey Hudson, "Muslims offer to help 'John Does' sued by imams", Washington Times, Mar. 21).

For years, an urban legend has floated around which claimed that Procter & Gamble has links to Satanism. P&G's aggressive campaign to stamp out these rumors included filing numerous lawsuits against those who spread the story. On Friday, at least one of those efforts paid off. A jury in Salt Lake City awarded Procter & Gamble $19.25 million against four Amway distributors who had briefly passed the rumors throughout an Amway voice mail system, and then passed around a retraction soon afterwards. P&G had sued Amway and the distributors, but Amway was ultimately dismissed from the case after many years of litigation.

Observations:

• For a payment of only $18 million, anybody should feel free to call me a Satan-worshipper.

• While I have not yet seen all the pleadings, it seems hard to believe that a rumor such as this could possibly have damaged P&G to the tune of $19.25 million.

• This lawsuit was filed in 1995. For those of you scoring at home, that means it took twelve years to resolve a lawsuit which was, essentially, about gossip. The case featured several trips to the Tenth Circuit Court of Appeals, an unsuccessful petition for Supreme Court review, and related litigation filed in Texas and Michigan as well. Not to defend the conduct of the defendants, but the litigation seems drastically out of proportion to the offense, no?

Apparently Carol Burnett doesn't hold to that maxim; she's suing the producers of the Fox cartoon Family Guy for $2 million for copyright infringement and violations of her right of publicity over an 18-second cartoon clip parodying her. Ron Coleman of Likelihood of Confusion has details.

Fox could have some trouble, particularly with the second claim; California's right of publicity law, as interpreted by the Ninth Circuit, is extremely broad. Judge Alex Kozinski's famous dissenting opinion explained the problem in a case filed by Vanna White against Samsung about an advertisement featuring a robot wearing a blond wig. Although this case doesn't present the exact same issues as the Vanna White case -- the Family Guy cartoon actually used Burnett's name -- it does point out the flaws in the Ninth Circuit's approach, and illustrates how their interpretation is an invitation to celebrities to litigate.

The end is very near for Cathy Seipp, and I'm frustrated with my inarticulateness in conveying my sorrow and anger over the injustice and absurdity of her untimely death. I was an early fan of hers, noticing that her idiosyncratic tastes in books and television corresponded nicely with mine. I first started corresponding with the feisty reporter when, in the course of self-Googling, she discovered a link to her Mediaweek columns on my old homepage in 2000; she generously quoted me when a tidbit I told her about the old Burns & Allen show ended up as an anecdote in one of her columns. We were on opposite coasts by 2001, but managed to say hello regularly on the occasions when one of us made the journey in one direction or the other. Every time I saw her, she was surrounded by lively and intelligent and bright friends drawn by her sharp wit and no-nonsense style, and I was always sorry that I wasn't able to spend more time around that latterday Algonquin Round Table. I admire how resolute she was in the face of death; I regret that we missed each other last time she was in DC, and that the last time we broke bread together wasn't in a better restaurant than the Sheraton breakfast buffet as we had agreed.

To perhaps inappropriately steer the conversation to the subject of this site, as noneconomic losses go, it's hard to think of a larger one than the premature loss of Cathy Seipp; her family and friends will miss her love, her laughter, and her pointed observations; we'll all miss her writing. Despite that, there would be no justice if one were to randomly select a deep pocket and demand it pay us all millions to compensate us for that loss. Losses are suffered without compensation all of the time; people are untimely struck down by aneurysms, mental illness, skiing accidents—and cancer.

The fact that, in some cases, there is the possibility of constructing a plausible scenario to blame a deep pocket and force it to compensate those who have suffered a loss does not ineluctably mean that that wealth-transfer must occur for justice to be done. Often it's quite the opposite. That we at Overlawyered often argue against such compensation as contrary to the long-term interests of the public good does not mean that we do not value life or understand the hurt or unquantifiable costs of a life taken too soon. The case of Cathy Seipp, who will die of a cancer that just happened to happen to her without anyone to blame or sue, and the sorrow we feel for her loss, is refutation enough of that strawman.

I'm proud to have been able to call Cathy Seipp a friend, and ashamed that I cannot do justice to her memory through my own words. Let's use hers: Cathy encountering a liability-fearing school bureaucracy over an asthma inhaler, on the miracle of public-school teacher tenure, and on the Guardian's counterproductive 2004 election letter-writing campaign. Go to her web page and leave good wishes.

American.com's David Robinson interviews me for a podcast on the Vioxx litigation. The irony of this happening less than 48 hours after the great Virginia Postrel extensively quotes me ragging on video-blogging does not escape me. (cross-posted at Point of Law)

They're doing it again in California: "State and federal authorities have opened an investigation into a Norco housewife, alleging that her vitriolic protests against a high-risk group home in her neighborhood may constitute housing discrimination." Federal officials asked state fair housing regulators to investigate Julie Waltz, 61, who had protested plans to open a group house next to her home for developmentally disabled residents; among those eligible to reside there under state law would be persons deemed not competent to stand trial on sex crime charges. In 2000, the Ninth Circuit ruled that three Berkeley, Calif. neighbors' rights had been violated by an "extraordinarily intrusive and chilling" investigation of whether their protests had been contrary to housing discrimination law. In that episode, as in the latest one, housing advocates had set the investigation in motion by filing complaints against the neighbors.

A spokesman for the federal Department of Housing and Urban Development acknowledged that in order to recommend the inquiry, it had to push aside internal guidelines that prohibit such an investigation because it infringes on the 1st Amendment.

The rules require that complaints of housing discrimination be investigated only in cases in which the alleged victim's safety has been threatened.

No such allegation has been made against Waltz, but HUD opened an investigation into her and state investigators ordered her to respond to the complaint in detail because a preliminary review showed that someone else in the neighborhood may have made a violent threat, said HUD spokesman Larry Bush.

It may not quite reach Jamail-esque depths -- almost nothing can survive that far down other than those curious tube worms that live on volcanic sulfide fumes -- but the lawyerly unpleasantness in the case of Redwood v. Dobson (PDF) was plenty bad enough, as recounted in Judge Easterbrook's entertaining opinion. Discussion: Evan Schaeffer's Illinois Trial Practice, Prof. Bainbridge, Legal Ethics Forum.

You might recall the $55 million verdict in Los Angeles, where Chrysler was held 75% liable for an accident where a defective automatic transmission in a 1992 Dodge Dakota, a failure of the truck owner to respond to multiple product recalls, and a truck driver's failure to (1) turn off the ignition before exiting a vehicle; (2) engage a parking brake; and (3) not attempt to jump into a moving vehicle resulted in the tragic death of a young longshoreman with a wife and children. Plaintiffs' attorneys Stephen Cassidy and Scott Nealey took issue with our post. The lengthy exchange begins in the comments section and update to our post and continues over email. Let's just say I wasn't persuaded, but judge for yourself.

Dana Milbank (WaPo) on yesterday's Bong Hits 4 Jesus Supreme Court oral argument (h/t LL):

"...Mertz, arguing for the student, fared even worse than Starr and Kneedler. He got out only one sentence -- "This is a case about free speech; it is not a case about drugs" -- before Roberts interrupted.

"It's a case about money," the chief justice said.

"Would you waive damages against this principal, who has devoted her life to this school?" asked Kennedy. "You're seeking damages from her for this sophomoric sign that was held up."

Stuart Taylor, Jr., finds Judge Silberman's Second Amendment opinion in Parker v. District of Columbia persuasive ("A Right to Keep and Bare Arms?", National Journal, Mar. 19, will rotate off soon).

Twentieth-Century Fox has a trademark for "the spoken word 'D'oh'" (popularized by Homer Simpson's annoyed grunts) though the docket indicates that they have not yet filed a statement of use; the USPTO kids' page, however, indicates that that syllable, along with many other sounds, are trademarked.

Today's Trib reprints my Times (U.K.) piece urging caution about journalists' claims that business has "trounced the trial lawyers". (Walter Olson, "Trial lawyers not trounced yet", Mar. 20).

Today's WaPo has more on the temporary restraining order against Deborah Jean Palfrey's sale of her phone records, which we discussed Mar. 17. Available for your viewing pleasure is the redacted government's TRO application, which was just unsealed, and has some entertaining anecdotes of attorney Montgomery Blair Sibley's litigation history. Palfrey now has her own (easily googlable, we won't link to it) website, which includes her civil complaint against one of her alleged escorts (which the government alleges is an attempt to harass a witness in the criminal case), and a page of phone records, which Josh Marshall's commenters have already begun tracking down.

Needless alarmism, or logical extrapolation from RIAA's willingness to sue small-fry individual music-sharers along with the grandparents whose computers they had borrowed?

According to some legal experts, YouTube's uploading community could find itself in the line of fire. ... Centralized source or no, Christopher Norgaard, intellectual property attorney and partner in the Los Angeles office of Ropers Majeski Kohn & Bentley, said he believes YouTube and its users face a significant risk of exposure to secondary liability for copyright infringement. Secondary liability can be either contributory, meaning inducement of infringement, or vicarious, meaning profiting from infringement while failing to exercise a right to stop it.

(Jennifer LeClaire, "Are YouTube Users at Risk in Viacom Suit?", NewsFactor, Mar. 16).

"Hundreds of thousands of men working in the public sector are facing salary cuts of up to £15,000 a year as equal pay agreements take effect, The Times has learnt. Compensation claims for up to 1.5 million workers could cost the taxpayer more than £10 billion and mean that male staff lose up to 40 per cent of their salary." According to commenters on the article, the agreements are based on the principle known in the U.S. as comparable worth -- that is to say, not equal pay for doing the same job, but equal pay for doing jobs that some evaluator decides are equally difficult or meritorious or socially productive, such as (hypothetically) librarian and garbage collector. (Jill Sherman, "Thousands face pay cut under new equality law", Times Online, Mar. 12)

Interestingly, while unions have apparently sought in many cases to minimize disruptions by phasing in the new principles, entrepreneurial lawyering is destabilizing the situation: "aggressive no-win, no-fee lawyers are now unpicking the agreements by winning higher compensation payments for thousands of individual claimaints." This appears to be leading to tension between the unions and the private employment lawyers. Some highly paid women, as well as many men, are expected to be hit with pay cuts.

• More ADA filing mills: "Fuller, Fuller and Associates was once sanctioned when their client, who was alleged to be quadriplegic, walked into his own deposition." [Childs @ MassTort]
• Professional expert witnesses as a publicly traded multimillion dollar industry. [WSJ]
• No accommodation needed for LSAT taker claiming ADHD. [Legal Intelligencer]
• Homeowner's gripe on web draws lawsuit from contractor. [WaPo]
• Lawsuits of the future: Muslim cashier refuses to ring up bacon (if only I had thought of that when I was in high school) [Minn. Star-Tribune]
• Neighbors feud over driveway: "three civil lawsuits, a physical altercation, a criminal indictment, [and] a court hearing over a videotape" [St. Pete. Times]
• "Warning: Lawsuits Hazardous To Financial Health" [Forbes.com]
• Y'know, if a man wrote a ludicrous essay to the effect that every professional women has a Lisa Nowak inside of them on the verge of erupting, that'd be the last thing he ever wrote. [Legal Times]

One of the best white-collar-crime bloggers around, Tom Kirkendall, has a roundup of links on the Black trial, including to this Mark Steyn column. I'm staying out of this one: I have colleagues who know Black personally, my old law firm represents clients adverse to Black in civil litigation, and my law-school roommate is the lead prosecutor on the case. I will note, however, that if I were Conrad Black, I'd be awfully concerned about the number of potential jurors who assume someone is guilty just because they made a lot of money, especially given the prosecution's inclination to introduce prejudicial evidence of expenditures. [New York Times; Globe and Mail]

Separately, this Economist commentary piece not only mentions the Black trial, but Larry Ribstein's "Apple rule." (cross-posted at Point of Law)

Many commentators over the years have compared litigation to extortion. In Texas, it turns out that there's at least some line between the two. Last week, San Antonio attorney Ted Roberts was convicted on three of five counts of theft for his role in a blackmail scheme. The scheme -- previously discussed on Overlawyered in Jun. 2004 , Sep. 2005, and Feb. 2007 -- involved having his wife, Mary, pick up married men on the internet, have sex with them, and then threaten to sue them (and reveal their sexual activities) for ruining his marriage unless they paid him big sums of money.

If you think that's low, consider that Roberts falsely told his victims that the money they paid would go to a charity; he instead spent almost all of the money on a new $635,000 home. It was that fact that apparently convinced the jury, which didn't have much sympathy for the adulterous men, to vote to convict.

It might sound unconscionable to normal people, but Roberts had found someone to defend him:

Support for the accused Ted H. Roberts and for his creative response to his wife Mary's adultery came from an accomplished fellow attorney with more than 44 years' experience, including a term as president of the State Bar of Texas.

Testifying for the defense, Broadus A. Spivey voiced no qualms about the way Roberts extracted $155,000 from four of his wife's lovers by threatening to file litigation that would embarrass them and alert their wives and employers to their infidelities.

"Litigation is coercive," Spivey explained to jurors. "That's part of the nature of the beast."

The seasoned lawyer offered a voice of experience, and the defense took care to note for jurors his multiple board certifications, awards and various distinctions.

Still to come: the trial of Roberts' wife on the same charges.

A frolic and detour over at Bizarro-Overlawyered led me to this post over at The Tortellini, which parrots the common trial lawyer argument that there's no need for tort reform because courts currently have the power to sanction frivolous lawsuits. But the example cited actually demonstrates exactly the opposite: current procedures are insufficient for preventing frivolous litigation.

In 2004, an Ohio resident named Thomas Starks arrived at an Econo Lodge in Tennessee at 4:40 AM. He spent a few hours relaxing, and then went to sleep at 7:30 AM. A few hours later the hotel called to wake him up, saying that he had missed the 11:00 AM checkout time. I guess he was cranky from lack of sleep, because he insisted that he hadn't stayed for a full day and therefore shouldn't have to pay the full day's room rental rate of $46. Eventually, he paid up and left.

The horrible treatment by the hotel in forcing him to actually pay for his room led, as you can probably guess, to a lawsuit (filed pro se) against Econo Lodge and Choice Hotels -- but, for some reason, not the operators of the Econo Lodge franchise in question. Starks demanded a $46 refund, $750,000 in damages, and a lifetime pass to stay free at Econo Lodge (I'm not making this up. If you can figure out why someone with $750,000 would stay at an Econo Lodge, let me know.)

The lawsuit was ultimately dismissed; for the many reasons explained by the court (PDF of opinion):

But Starks proceeded to sue the wrong people, in the wrong place, for a wrong wrong: (1) it wasn’t a wrong, (2) Hamilton County, Ohio, was not the right place, and (3) and even if there were a wrong, it wasn’t committed by these defendants.

We mentioned this song before, but didn't know there was a video:

(via Mark Lyon in Evan Schaeffer's comments section).

A grand jury is expected to hear testimony this week about the role of three Lexington lawyers in the now-infamous Kentucky fen-phen settlement (Feb. 14, etc.). "Frank Bentley IV, a lawyer representing [Cincinnati's Stanley] Chesley, said he is not a target of the criminal investigation." (Andrew Wolfson, "Grand jury to look at diet-drug attorneys", Louisville Courier-Journal, Mar. 15). Last month one of the lawyers caught up in the scandal, William Gallion, said "that he did nothing wrong and that a lawsuit filed against him and others in the case is simply the result of 'a cottage industry of lawyers who attack class-action settlements.'" (Andrew Wolfson, "Attorney denies wrongdoing", Courier-Journal, Feb. 11).

A federal judge in Brooklyn has recommended that the NYU lawprof be given about $3 million, or $1 million less than what he asked, for representing Holocaust-assets claimants. Some clients say they understood Neuborne to have said he was working pro bono (Jones/WSJ law blog, Mar. 16; Tom Perrotta, "$3 Million Fee Suggested for Neuborne for Work on Holocaust Survivor Issues", New York Law Journal, Mar. 16). Earlier: Oct. 6, etc.

Most memorable detail: the kids used "tweezers to pluck his eyebrows for DNA testing as he lay dead in a hospital morgue." The fact pattern in this Australian case was not exactly typical, however: the donor had had a previous romantic relationship with the children's mother, who subsequently used his donations to conceive three times without informing her lawful husband that the kids were not his. (Janet Fife-Yeomans, AAP/PerthNow, Mar. 16).

When the Gray Lady keeps running extravagantly positive profiles of a trial lawyer, maybe it's time to take a closer look. I do that in a post just up at Point of Law.

...which may not necessarily mean that some people can't even give it away:

A federal judge ruled Friday that a former escort service owner cannot sell phone records and other documents that could be used to publicly identify thousands of her clients.... [Deborah Jeane] Palfrey's civil attorney, Montgomery Blair Sibley, said Friday he does not believe the judge's order bars him from distributing copies of the phone records for free. In any event, Sibley said it's a moot point because he has already given copies of the records to an undisclosed news organization.

("Judge Blocks Former D.C. Madame From Selling Client List", AP/FoxNews.com, Mar. 16; SF Chronicle; WTOP). Background: Mar. 13.

Title says it all: "Let presidential candidates sue one another for libel". Oh, great, then White House races will start depending on who's more skilled at manipulating the judicial process (although now that you mention it Bush v. Gore has already gone far to advance that proposition). (Joseph H. Cooper, Christian Science Monitor, Mar. 16).

"Early in his career, officials found that Lieutenant [William] White had planted white powder on a suspect in a drug arrest, which cost him his job -- though he won it back with the help of the police union." White, who has headed the narcotics squad in the New Haven, Ct. police force, is now at the center of a widening corruption scandal. (Jennifer Medina, "For Connecticut Officer Charged With Theft, a Career of Ups and Downs", New York Times, Mar. 15; "Bail set at $2 million for New Haven officer caught in sting", AP/WTNH, Mar. 14; Mary E. O’Leary, "Ortiz: More arrests likely" (bail bonds angle), New Haven Register, Mar. 15).

That's the view of Tennessee trial lawyer John Rice (InjuryBoard.com, Feb. 20). Some readers wonder whether Rice has thought the matter through (via Kevin Pho, who also comments).

Paternalists aren't going to like this idea: "let anything the government would have banned be sold only at special 'would have banned' stores, whose customers pass a test showing they understand that regulators disapprove. The reason we don't allow such stores seems obvious: we expect people would shop there." (Robin Hanson, Overcoming Bias, Mar. 2)(via Cowen at Rev. Marge).

In recent developments at the Mississippi judicial-bribery retrial, Richard ("Dickie") Scruggs, a longstanding associate of attorney Paul Minor's, "testified without accepting the U.S. Justice Department's offer of immunity from prosecution". Scruggs had not taken the stand during the first trial. (Anita Lee, "Scruggs takes stand", Biloxi Sun-Herald, Mar. 14). Earlier, attorney Leonard Radlauer testified that he'd served as a go-between in a scheme in which Minor furnished $118,000 to pay off a debt owed by Judge John Whitfield of Gulfport. ("Scruggs likely to testify today", Mar. 13). According to the Jackson Clarion-Ledger, summarizing his testimony,

Radlauer said he later came to the realization after receiving what he considered a fraudulent promissory note from Whitfield that Minor's reason for wanting him to make the payment wasn't above-board.

"It wasn't to keep it out of the paper," Radlauer said. "I thought it was a pretty shady thing. ... It was backdating."

(Jimmie E. Gates, "Witness: Loan antics 'shady'", Jackson Clarion-Ledger, Mar. 13; also Gates, Clarion-Ledger, Mar. 9, Mar. 10, Mar. 12; Lee, Sun-Herald, Mar. 12). As prosecutors wrapped up their case, U.S. District Court Judge Henry T. Wingate on Thursday refused a defense motion to dismiss the charges. (Lee, Sun-Herald, Mar. 15 first and second story). Prosecutors have said that Minor, one of the state's most prominent plaintiff's lawyers, slipped the money to judges in exchange for favorable rulings. Earlier: Feb. 26, Mar. 8, Mar. 9, etc.

A sad case of post-9/11 discrimination, or "performance art" designed to elicit a fearful reaction among fellow passengers? And what are we to think of the suit's naming, as "John Doe" defendants responsible for damages, an "older couple" who reacted with alarm and the gentleman of which "kept talking into his cellular phone", possibly alerting authorities? (John McWhorter (Manhattan Institute), "Drama Queens on U.S. Airways", New York Sun, Mar. 15; Katherine Kersten, "The real target of the 6 imams' 'discrimination' suit", Minneapolis Star-Tribune, Mar. 14; Kersten blog, Mar. 14; Power Line, Mar. 15; Dystopian Philosopher (Dennis Miller video), Mar. 14; Bruce McQuain, QandO, Mar. 15). Earlier coverage: Dec. 6.

More: Audrey Hudson's coverage of the issue in the Washington Times is kind enough to quote me ("Imams' suit risks 'chill' on security", Mar. 16).

The United States legal system has traditionally permitted significantly more extensive pretrial discovery than other countries' legal systems have. So what do you do if you're engaged in litigation in a foreign country, and you want information you couldn't obtain under their laws? Why, you simply get the U.S. courts to order those who have the information to provide it via American discovery rules, as this China Law Blog post by Dan Harris explains:

"In 2004, the U.S. Supreme Court issued the seminal decision interpreting §1782, construing the language liberally in favor of allowing discovery.  Among other things, it rejected the notion that §1782 was limited to the discovery of evidence that could be discovered in a foreign jurisdiction if the evidence was located there. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

Ponder this for just a moment: The Supreme Court ruled that one could engage in U.S. discovery to gather information for a foreign litigation that one would not be allowed to gather in that foreign litigation.

In a further example of this trend, a district court in New York ordered McKinsey Company, the global consulting firm, to produce documents requested by a German litigant in aid of a lawsuit in Munich. In re Gemeinschaftspraxis Dr. Med. Schottforf, 2006 WL 3844464 (S.D.N.Y. Dec. 29, 2006). McKinsey argued §1782 did not apply because the documents were located outside of the United States. The district court disagreed, holding “Section 1782 requires only that the party from whom discovery is sought be ‘found’ here; not that the documents be found here.” Id. at 5. The court also rejected the argument that the production would be unduly burdensome because the documents would have to be translated from German into English so they could be reviewed by McKinsey’s non-German-speaking U.S. counsel.

(Hat Tip: Ron Coleman, my co-blogger from Likelihood of Success.)

In 2001, Harry Ruiz, a municipal police officer in New Jersey, was called to a disturbance at a local ballroom, which had been rented by a nearby sports bar to televise some World Cup matches. By the time he responded, the altercation had moved onto the street outside the building. When he responded, he was assaulted by one of the patrons, and he received head and neck injuries which left him permanently disabled.

This, obviously, was the fault of the bar, as well as the owner of the ballroom. The claim? They failed to provide adequate security. To recap: a trained police officer responds to reports of violence, gets injured, and sues the owner of the premises on the theory that they should have had security guards at the site to protect him from the people he had come to arrest!

Traditionally, the Firefighters Rule meant that police and firefighters were not allowed to sue for injuries they incurred while doing their job, in part based on the theory that this was the risk they were paid to take. But this week, the New Jersey Supreme Court held that Ruiz could proceed with his lawsuit. Although the state Supreme Court here is generally considered the most activist in the country, it's the state legislature at fault in this case. The court was simply straightforwardly interpreting the words of the 1994 statute which abolished the Firefighters Rule in New Jersey; a copy of the court opinion is here.

So, be careful when you call the police or fire department for help; you might find yourself being sued by the people who were supposed to be assisting you.

Walter previously covered an even more outrageous case involving this law: Nov. 2006.

Reader and huge fan Richard Nieporent passes along a story of a West Virginia High School student with a 4.5 GPA suing her teacher and the school board because she didn't like the grade she received in biology. She was on a school trip on the date a big project was due, and failed to turn it in on time; the teacher failed her on the project because it was late. Naturally, litigation has followed:

"It was the intent of the defendant, Jane Schultz, to punish the minor plaintiff for being in student council by intentionally ruining her ‘A' average," the lawsuit says.

The student's parents are seeking an injunction, punitive damages, and damages for "emotional stress, loss of enjoyment of life, loss of scholarship potential."

Bill McGinley, legal counsel for the West Virginia Education Association, said the union would be watching the lawsuit closely.

"We're very interested in this," he said. "Especially in the notion of protecting the integrity of teacher's grading, as well as student responsibility.

"It's a terrible thing that people want to clog up the courts with students and their leaf projects," he said. "The court has so much more important stuff to deal with."

McGinley said he agrees with Withrow, the county school board's attorney, that students need to learn responsibility.

"When they fail to meet a deadline and they start suing over leaf collections, it's not really teaching them important life lessons," McGinley said.

Doc Around the Clock is unnerved by an overheard conversation (Feb. 10)(via KevinMD).

...is not enough contact with the buyer's state to subject you to the jurisdiction of its courts, according to a judge on Staten Island who ruled that even New York's "long arm" law has its limits. (Mark Fass, "Contact Held Insufficient to Sue eBay Seller", New York Law Journal, Mar. 7). I discussed the rise of long-arm jurisdiction, and the powerful impetus it can provide to litigation in many situations, in Chapter 4 (PDF) of my book The Litigation Explosion.

P.S. As commenter Elliot points out, "even" was not the mot juste in this circumstance; New York's long-arm statute has never been interpreted as liberally as, say, California's.

This time it's the federal court for the Eastern District of Tennessee that's sent the glamourpuss bounty-hunter packing:

Plaintiff and his associate Erin Brockovich have filed 49 nearly identical complaints in jurisdictions across the country. Kris Hundley, Brockovich Teams Up With Local Firm, St. Petersburg Times, Dec. 21, 2006. Many of these complaints have already been dismissed . . .

Roy F. Harmon III at Health Plan Law explains why this one failed too (Mar. 13). For more, see Jun. 22 and Nov. 18, 2006 as well as, on the general Brockovich phenomenon, my October 2000 treatment in Reason.

Maybe because they're not donating enough to the political class (Carney/Dealbreaker, Mar. 13).

In October 2000, Al Qaeda attacked the U.S.S. Cole while it was attempting to refuel in Yemen; 17 American sailors died and 39 more were injured. The United States may not have retaliated militarily at the time, but in a federal court in Norfolk, Virginia, the families of the victims are now suing... the government of Sudan, for $105 million. Sudan, claiming immunity, has refused to take part in the litigation; this likely means that the plaintiffs will prevail, because they have produced some evidence linking Sudan to the attacks:

"Sudan basically gave [al-Qaida] the breath of life it needed," terrorism consultant and former journalist Douglas Farah testified in a videorecorded deposition. Sudan's secretive Islamic banking system made it easy for al-Qaida to launder its money, Farah said. After U.N. sanctions squeezed Sudan in early 1992, he said, al-Qaida bought gold and conflict diamonds in Sierra Leone.

Sudan allowed al-Qaida to operate training camps where recruits from other nations were assembled, trained and returned to their own countries as sleeper cells, Vidino said. One such cell -- a group of Yemenis trained in Sudan -- carried out the Cole attack, he said.

After international pressure forced bin Laden to leave Sudan for Afghanistan in 1996, al-Qaida remained in Sudan -- and remains today, Farah said. He said the explosives used to blow a hole in the Cole probably were transported by boat from Port Sudan to Aden across the Gulf of Aden, unexamined by customs officials. He said he could think of no other source for them.

In a videorecorded deposition, former CIA Director R. James Woolsey said Sudan's involvement in the Cole bombing was "more likely than not" -- the legal standard of proof in the civil lawsuit. Vidino and Farah said they did not believe al-Qaida could have attacked the Cole without Sudan's help.

(By the way, according to the plaintiffs' lawyer (you guessed it): "[M]oney has never really been the issue." But you can't blame activist lawyers or courts for this one; Congress has explicitly authorized these suits, by creating a "terrorist exception" to the standard rule of foreign government immunity from such lawsuits.)

Incidentally, the lawyer for the plaintiffs seems to specialize in cases such as these; he previously represented American hostages in a successful lawsuit against Iraq and American prisoners in a lawsuit against Libya.

The Los Angeles Times profiles a lawyer who specializes in representing Los Angeles landlords:

In a DVD he gives to landlords, Block describes himself this way: "A man who has evicted more tenants than any other human being on the planet Earth."

[...]

That's where Block comes in. He has dedicated his considerable creativity and intelligence to helping landlords evict tenants from rent-stabilized buildings. He boasts that his firm has filed more than 130,000 cases since 1980, a year after rent stabilization went into effect. He helps landlords identify minor violations — a pet fish in an aquarium, a brightly painted bathroom, an extra occupant — to toss out long-term tenants who are paying below market for their homes.

An Arkansas woman staying at a hotel claims she was bitten by bed bugs. Certainly grounds to demand a refund, if true. Or, you could claim to be traumatized by the experience, and file a lawsuit:

A woman sued a Siloam Springs motel Thursday, claiming she was infested by hundreds of bed bugs during a stay there and now suffers recurring nightmares of bugs feeding off her body.

The suit was filed on behalf of Rose M. Pagley-Brown by Bentonville attorney Sach D. Oliver. It alleges negligence and seeks damages for pain and mental anguish, embarrassment and humiliation, medical bills and expenses.

Careful, you might wind up suing the cat (Alex Wade, "It wasn't me, guv - I'm just the office cat", Times Online, Mar. 9).

• We're among the "favorite recent discoveries" of blogging technology pioneer Dave Winer (Scripting News); his own recent brush with legal unpleasantness may have primed him for the subject (Update: and more);


• ER doc: "Her vocabulary was laced with too much plaintiffese" [Time mag via KevinMD]


• Is Spain really "overlawyered", and if so, compared with what? [The Recorder]


• Debate kicks off between lawprofs David Wagner and Michael Krauss over Supreme Court's recent Williams decision on punitive damages [Point of Law]


• A five year old? Doing motocross? And his parents are blaming the park? [Charlotte Observer]


• Lawyers leaking court documents to reporters from improper motives? Imagine that [Wasserman/Miami Herald]


• EU consumer law might ban sock-puppet blogs [Slashdot]


• Local paper prints full trial transcript in case of Connecticut teacher Julie Amero (Jan. 20, Feb. 15), convicted after her computer caught smutware bug [Norwich (Ct.) Bulletin via Pattis]


• Swedish woman sued by lawyer-neighbor for smoking in her own garden [UPI]


• American conservatism dead set against modernity, individual liberty, secularism? Let's hope not [Sullivan blasts D'Souza @ New Republic]


• Car dealers didn't warn of exhaust and oil fumes, so enterprising California lawyer wants $7500 from each of them, mostly payable to, well, guess. [Five years ago on Overlawyered]

In this second-hand blog account, a plaintiffs' attorney seeking damages for a car accident strikes a doctor and two nurses, but mistakenly fails to strike a juror who isn't completely medically ignorant. The results are entertaining, as an 11-1 straw poll turns into a 0-12 defense verdict. (Via Kevin MD.)

Via the WSJ Law Blog, the Montana Supreme Court has upheld a verdict against the law firm of Gibson, Dunn & Crutcher for pursuing a meritless lawsuit; we covered the trial Feb. 9, 2005. The Wall Street Journal weighed in Mar. 16, 2006. Punitive damages were reduced from $20 million to $9.9 million. Gibson Dunn has indicated it will appeal.

I'm not saying anything that any regular blog-reader doesn't already know, and I could well be bumped if Britney Spears goes shopping, but I taped an interview about the U.S. Attorney firings scheduled to be on CNN's 7pm (Eastern) news if you have a morbid curiosity what I look and sound like on tv when I have a cold and only four hours of sleep.

Update: Ended up on the cutting room floor, apparently. Hope no one sat through an hour of Wolf Blitzer on my account.

We wrote about the Navarro case and its $217 million verdict a few times, including today. The insurance company has announced that the case was settled, though has not yet released any details. On information and belief, one should be able to divine those details at a later date from the public Florida reporting system, and we'll try to track those figures down in a few months.

(Update, August 2007: details of settlement.)

My latest column in the Times Online explains why Business Week and some other media outlets are being at best premature (and that's putting it diplomatically) in declaring the American plaintiff's bar down for the count. Opening excerpt:

America’s litigation fever is cooling off, or so one hears. Merck & Co is doing reasonably well defending suits over its painkiller Vioxx, while actions blaming foodmakers for obesity have sputtered. Doctors’ malpractice-suit payouts are said to be flat (at what by other countries’ standards are still unthinkably high levels). Last month, the Supreme Court ruled on a punitive damage case in favor of tobacco giant Philip Morris, which has become a Wall Street favorite after wrestling down its perceived legal risks. Nearly every American politician claims to be on board with reform, even the nation’s most famous plaintiff’s-lawyer-made-good: “We do have too many lawsuits”, said John Edwards during the 2004 Presidential debates. A recent Business Week cover sums it up: “How Business Trounced the Trial Lawyers”.

And yet one wonders whether a contest is being called prematurely. ... To call a high-water mark is going to require more evidence than we’ve seen so far.

P.S. Other reactions to the Business Week cover story came from Bizzyblog ("Year's Most Unintentionally Comical"), Roger Parloff (article itself was better than headline), and me at Point of Law (see also this WSJ column).

• $47.5 million verdict in Vioxx retrial. [Point of Law]
• D.C. Circuit has big Second Amendment opinion striking down DC gun ban; Brady Center inconsistent about its view of democracy versus the constitution. [Bader; NRO symposium; 18 posts at Volokh]
• Alien Tort Statute: legal imperialism? [Point of Law]
• Michigan Justice Elizabeth Weaver continues to lose it [ATL; People v. Parsons]
• Update in Navarro $217 million verdict: Defendant doctors in lawsuit now suing their own attorneys [St. Pete Times (h/t F.R.)]
• "What did you say about my kiwi?" bill in California [Legal Pad]
• Yeah, that will resolve the housing crisis: group intervenes to protest plan for new apartment complex under fair housing laws because "only" 16 units out of 299 have three bedrooms. [Boston Globe (h/t A.I.)]
• Norm-shifting in the post-MySpace age. [Barnett @ Volokh v. Taylor]

Washington, D.C. has been on edge lately over the news that Deborah Jean Palfrey, facing charges of running a pricey call girl operation in the capital, wants to sell her list of 10,000 clients and 46 pounds of phone records to the highest bidder to raise money for her legal defense. (Scott McCabe, "Accused D.C. madame’s client list remains in limbo", Washington Examiner, Mar. 10; Fox News, Mar. 9; Anne Schroeder, Politico, Mar. 1; TPM Muckraker, Dec. 7, Mar. 1, Mar. 7, Mar. 9). Palfrey's attorney and adviser, Montgomery Blair Sibley, says numerous overtures for purchase have already come in, that efforts are underway aimed at "mining the data to identify individuals," and that his client will do her part in cooperating with the buyer of the data to identify clients. Attorney Sibley is quoted in the Examiner as teasing journalists about the newsworthy nature of the client names: “You won’t be disappointed.”

Something about the name of Palfrey's attorney, Montgomery Blair Sibley, rang a bell from the past. Was it the historical resonance of his having been named after a member of Lincoln's cabinet? Or his having once headed an organization called Forfeiture Endangers American Rights, which I've had occasion to cite favorably for its work against police and prosecutorial abuses? No, that wasn't it. Oh, wait, here it is: an Overlawyered entry from March 7 of last year about how Arthur Vanmoor, a South Florida man accused of running one of the largest prostitution rings in the Southeast, had taken the step of suing his own former clients for getting him in trouble (seems they had signed credit card slips which read "Cardholder states that this transaction is not for illegal activity"). As I noted then, "One wonders whether the possibility of [publicity for the "johns" being sued] might be one factor influencing the prospective settlement value, if any, of the new round of suits." Vanmoor's attorney appeared on Tucker Carlson's "The Situation" to discuss the strategem, with entertaining results. His name? Montgomery Sibley.

Maybe Mr. Sibley can adopt as a new promotional slogan for his law practice, "Turning your client lists into gold."

"...then sues both." According to her lawyer, Tom Maag, Amanda Verett was holding open the door for co-defendant Clarence Jackson when he "grabbed the door in such a fashion that it caused the door to suddenly and sharply move," resulting in injuries for which Ms. Verett wants upwards of $150,000 from Jackson, the restaurant, or some combination of both. It happened in Edwardsville, Ill., in lawsuit-famed Madison County, where Thomas Maag is a member of a famous family of lawyers (Oct. 29, 2004). (Steve Gonzalez, Madison County Record, Mar. 8).

P.S. The website of the Dennis & Verett Law Office of Edwardsville indicates that Amanda Bradley Verett was admitted to the Illinois Bar in 2003 and is a member of the Association of Trial Lawyers of America, now renamed the American Association for Justice. (hat tip: reader David Nowlan)

Geoffrey Fieger (May 5, 2006; Mar. 24, 2005; Mar. 13, 2005; Aug. 31, 2004; etc.) got some favorable rulings in a South Carolina medical malpractice case. Fieger claims that the hospital fatally overdosed the plaintiff's dead husband; the hospital argues that, as an autopsy showed, he died of a rare heart condition. Because the hospital only had copies of the original records, and not the original records themselves, Fieger persuaded the judge to instruct the jury that the defendant hospital had engaged in a cover-up and that the jury could draw an adverse inference; moreover, the jury wasn't told about a side-deal Fieger cut with a co-defendant that apparently resulted in that defendant making only a token defense at trial in exchange for a limitation of damages, a sequence that a non-settling co-defendant doctor protested futilely as Fieger directed his closing argument at her, calling her a killer and a liar. Fieger asked for $55 million including punitives, the jury returned $30 million in "compensatory" damages but the judge threw the whole verdict out as obviously the product of passion or prejudice. Fieger says he looks forward to retrying the case. The case was brought before South Carolina capped malpractice awards. (John Monk, "$30 million verdict overturned", The State, Mar. 9; John Monk, "$30 Million awarded in death of physician", The State, Aug. 12).

If there's a backlash underway against paternalism, you'd never know it from the crowded agenda of "nanny bills" under consideration in Sacramento, which include a ban on smoking in cars with kids present and proposed restrictions on keeping unspayed cats or dogs as pets. (Nancy Vogel, "Big mother is watching with new laws in mind", Los Angeles Times, Mar. 8).

P.S. Regarding an Illinois version of the cigarettes-in-cars idea, Jacob Sullum has the good headline: "I Do Miss Mom, but At Least the Car is Smoke Free".

In 2004, Phillip Waisonovitz accidentally killed his co-worker, Robert Ard, by backing over him with a train. Ard's family sued, claiming negligent supervision, and just won $4.3 million from the employer, Metro-North Railroad. So that settles that, right? Close, but not quite. As the Associated Press explains:

Phillip Waisonovitz, the engineer who backed up the engine, became distraught after learning it had struck Ard.

He has been out of work on disability since then with a diagnosis of post-traumatic stress disorder.

Waisonovitz has filed suit against the railroad company and Ard's estate. That case is pending.

In case you were wondering, workers comp laws generally don't apply to railroads.

[CORRECTION: As can be seen in the comments, there's an important correction to this story. The media report I relied upon got the story wrong; Waisonovitz did not sue Ard. Waisonovitz only sued Metro-North; it was the railroad that brought Ard into the case.

This hardly makes Mr. Waisonovitz a poster child for personal responsibility; his lawsuit still boils down to him suing the railroad because he feels bad that he ran someone over. But he isn't suing the direct victim.]

It takes a hard person to pick on the family of a dead child -- but that's why I'm here. In 2001, Tegan Rees, a 2-year old boy living in Idaho, was beaten to death by his mother's fiance. The boy's father had previously reported to Idado child welfare authorities that he saw bruises when he picked up his son from his ex-wife, but when they investigated, they decided it wasn't abuse. That was just a few weeks before the boy was murdered. So, naturally, he sued the Idaho Department of Health and Welfare for $1 million.

Last week, the jury ruled 10-2 in favor of the state agency (AP, Mar. 11). The grandmother's reaction?

"I'm just sickened," Christie Rees told the Post Register. "I'm embarrassed that I live in Idaho. I thought finally Tegan would get justice."

I guess sometimes it really is about the money.

Another classic from Norfolk, Va.-area client-chasin'-lawyer Lowell Stanley, circa 1995. For an earlier example, see Feb. 20.

Michael Alan Crooker, currently in jail in Connecticut, says he tried to keep the data on his hard drive confidential, but FBI agents probing his alleged gun crimes nonetheless managed to duplicate its contents and turned up various embarrassing sex material. He wants $200,000 from Microsoft for disappointing his expectations that its privacy protections would prevent such a thing from happening. (Paul McDougall, "'Embarrassed' Gun Suspect Sues Microsoft After FBI Finds Sex Videos On His PC", InformationWeek, Mar. 2).

The Portland Press Herald reports on a legal debate allegedly going on in the state of Maine right now. (I say "allegedly" because the article relies on the tried and true journalistic tactic of describing what "some" say and what "others" and "critics" argue, while identifying only one or two people who take these positions.) The debate is over whether too many cases are settling out-of-court rather than going to trial; according to statistics cited, only about 2% of civil cases in Maine have made it to trial in the last two years.

Some see settlements reached by compromise as a better outcome than a trial, which is expensive and risky for both sides.

But others argue that the trend has moved justice underground. With fewer trials there are fewer public verdicts that set the legal boundaries for the rest of society. And without verdicts, there are no appeals, in which the state supreme courts make precedent-setting rulings that future decision makers can rely on.

A number of newspapers have picked up the tale of Kunal Sah, who will be competing in his second consecutive national spelling bee this year. His parents were recently deported after sixteen years of living in the States, and some bloggers have noted the irony: here's a successful immigrant who owned a business and raised a successful son, and they're being deported because of "tough U.S. immigration regulations in the post-9/11 atmosphere."

Except the deported parents are not anywhere near as sympathetic as the press coverage makes them out to be. Kanhai Lal "Ken" Sah came to the United States in 1990, and, as his visa expired in 1991, applied for political asylum, and managed to keep his case alive for fifteen years. His son Kunal was born during that time, and got American citizenship as a result, and remains in the country. But the parents' asylum application was denied, and they were deported

Sah's asylum claim? He feared Muslim persecution in his home country. That might engender sympathy—until one realizes that his home country is India, which has 800 million fellow Hindus for Sah to live amongst. And that Sah's basis for fearing persecution was because, as a member of the radical Hindu nationalist organization Vishwa Hindu Parishad, he "took a very active part in organizing and conducting [anti-mosque] meeting[s]" and that he "actively participated in the riots to [attempt to] demolish the Babri Mosque." (Vishwa eventually succeeded in destroying the mosque in 1992, causing religious riots that killed 900 people.)

The Sahs are now engaging in a public relations campaign for citizenship on the basis of the hardship created by the fifteen years they spent in the country churning the bogus asylum application. None of the press coverage mentions Ken Sah's role in his asylum denial as a radical Hindu. Don't believe the hype. (Sah v. Gonzales (10th Cir. 2005)). (And welcome Malkin readers.)

Definition of mixed emotions: a New York Yankee being sued. (I'm not a fan of either.) Last week it was Cory Lidle's family being sued (and suing) over his fatal airplane crash; this one is slightly less serious. Last August, while Carl Pavano was pitching in the minor leagues, he got involved in a car accident in Florida. His car allegedly skidded on wet road, and slid into a vehicle stopped at a stop sign. So, obviously, this is the fault of... the New York Yankees. We know, because Ernest DeLaura, the driver of the other vehicle, filed a lawsuit in January naming both Pavano and the Yankees as defendants.

(Somehow, despite the fact that DeLaura was in a tractor trailer and Pavano was in a car, DeLaura claims he sustained "severe and permanent personal injuries," while Pavano is healthy enough to play in the major leagues.)

Oddly, DeLaura filed the lawsuit in the Bronx, even though he's a resident of Florida and the accident occurred in Florida; it's not clear whether this has to do with the Bronx's pro-plaintiff reputation or the inability of DeLaura to gain jurisdiction over the Yankees in Florida.

New York Times legal correspondent Adam Liptak has a good article summing up the state of play on legal actions arising from unkind reviews of eateries, including several cases familiar to our readers (Feb. 27, Philadelphia; Feb. 10, Belfast; Jan. 3, 2006, Dallas)("Serving You Tonight Will Be Our Lawyer", Mar. 7). More: PhilaFoodie.

So here's a quiz to see whether you have what it takes to be a trial lawyer: Man walks into a bar, has some drinks, rides over to a diner with his friend. At the diner, the man orders a sandwich, chokes on it, and dies. So the question is, who do you sue?

(A) You don't. It's nobody's fault; it was just a tragic accident. If anybody is to blame, it's the man who got drunk and then carelessly choked.
(B) The diner, for serving the sandwich.
(C) The friend, for driving the man to the diner.
(D) The bar, for serving him alcohol; if he hadn't been drunk, he might not have choked.

If you answered (A), you're new here, aren't you? If you answered (B), (C), or (D), well, you're getting warmer, but you're not quite there. As every real trial lawyer knows, the answer is (E) The diner, the friend, and the bar.

In 1991, a man from upstate New York named Thomas Filiberto had some drinks at a bar Tavern, and then was driven over to a diner by his friend, who also happened to be the bartender. Filiberto ordered a hot roast beef sandwich, choked, and died, despite the attempt of other diner patrons to save him. His family sued everybody "involved" -- and I use the term loosely. The bar, the bartender/friend, and the diner.

No, really. This time, it might not be.

In January 2006, retired New York Times reporter David Rosenbaum was mugged in Washington, D.C.; the muggers hit him over the head with a pipe. When his body was discovered and emergency workers responded, they somehow missed the fact that he had been bashed over the head (Oops!), and decided he was merely drunk. Because of that mistake, every aspect of the response was botched; police failed to investigate the crime right away, and emergency workers and the hospital where they eventually took him failed to immediately treat him for his serious head injury. Two days later, he died.

Last November, his family sued the city and the hospital for $20 million. On Thursday, they settled their lawsuit with the city, for no money (Washington Post):

The family of a slain New York Times journalist yesterday agreed to forgo the potential of millions of dollars in damages in exchange for something that might be harder for the D.C. government to deliver: an overhaul of the emergency medical response system that bungled his care at nearly every step.

David E. Rosenbaum's family said it will give up a $20 million lawsuit against the city -- but only if changes are made within one year.

Under a novel legal settlement, the city agreed to set up a task force to improve the troubled emergency response system and look at issues such as training, communication and supervision. A member of the family will be on the panel.

Although legal experts said the family could have won millions had it pursued the case, Rosenbaum's brother Marcus said he and other relatives were more interested in making sure that the city enacted measurable changes.

Interestingly, a search of news coverage about this lawsuit did not reveal even one instance of any of the plaintiffs or their lawyers uttering the immortal mantra, "It's not about the money."

Sarbanes-Oxley doesn't just over-regulate corporate governance and harm U.S. capital markets; it can be used by zealous prosecutors in many contexts. Such as prosecuting a lawyer who destroyed a church computer that had child pornography on it, because he didn't guess that the government would be investigating the incident.

"In a twist of science, the law and what some call trans-fat hysteria, [New York City] wholesale bakers are being forced to substitute processed fats like palm oil and margarine for good old-fashioned butter because of the small amounts of natural trans fat butter contains." (Kim Severson, "Trans Fat Fight Claims Butter as a Victim", New York Times, Mar. 7). More: Feb. 15, 2005; Jun. 14, Jul. 30, Sept. 27, Oct. 16, Dec. 5, Dec. 10, 2006; Mar. 3, 2007.

"Former Circuit Judge John Whitfield set a trial date on a lawsuit filed by Gulf Coast attorney Paul Minor before the defendant was served with the lawsuit, the defense attorney testified Wednesday." (Jimmie E. Gates, "Former judge's action questioned in judicial bribery trial", Jackson Clarion Ledger, Mar. 8). More: Mar. 8, etc.

Because you were clamoring for one:

• Police warn householders of three convicted burglars but say they cannot describe them for fear of violating their human rights [Telegraph]


• Eight year old Connor McCreaddie is very fat indeed, so North Tyneside officials are considering taking him from his mum into protective custody [Gillespie, Reason "Hit and Run"]


• Sounds promising but haven't seen: author Simon Carr has published compendium of legal horror stories entitled "Sour Gripes" [Telegraph]


• As in the U.S., prospect of discrimination suits has deterred efforts to keep unhealthily thin fashion models off the catwalk [Guardian]


• Ban on fox hunting not only is widely evaded but in fact has led to renaissance of the sport [Telegraph]


• "An incompetent expert [witness] can cause more misery than a psychotic gang member." [Slapper/Times]


• Vacationing cop busted for Swiss Army knife [Daily Mail]


• In hospitals, perhaps a surfeit of privacy [Huddersfield Daily Examiner via KevinMD] and sensitivity [Daily Mail via ditto]


• Man obsessed by sex after motorcycling injury expected to get multi-million-pound award [Telegraph]


• Children's sack race scrapped for lack of liability insurance [Telegraph]; industrialist says inordinate playground risk-aversion is bad omen for economy [ditto]


• Convicted armed robber "given legal aid to sue over a telephone message that reveals that his phone calls come from prison" [Telegraph]


• Familiar ring? Controversy mounting over "ambulance chasing", allegations of sharp practices as no-fee-no-win injury work makes fortunes for some well placed solicitors [Times here, here, here, here]

In April 2004, 38 year-old Richard Mraz got out of his employer's 1992 Dodge Dakota while it was still running. He didn't set the parking brake, and the vehicle started moving when it shifted itself from park into reverse. Mraz tried to jump into the moving vehicle, and suffered fatal head injuries for his trouble.

Chrysler admitted the vehicle had a defect that caused the automatic transmission to shift from park to reverse in rare circumstances. Thing is, they admitted it when they sent twelve separate recall notices to the Dakota owner, Mraz's employer, who ignored them all. But, Mraz's lawyers said, Chrysler spent time in internal discussions deciding whether to recall the vehicle before actually doing so, so they should be punished, pointing to an internal memo debating the question as a "smoking gun."

A Los Angeles County jury agreed, finding $5.2 million in compensatory damages for the longshoreman's death, and attributed 75% to DaimlerChrysler (10% for Mraz's multiple safety errors, and 15% for his employers' ignoring the recall notices), and issuing $50 million in punitive damages, all to Chrysler. Most press accounts failed to mention the recall notices or Mraz's negligence, just regurgitating the plaintiff's lawyer's account. (David Shepardson, "DCX loses suit in Dodge owner's death", Detroit News, Mar. 8). More on California auto product liability cases.

Interestingly, at least one law firm has already purchased the Google search term "Richard Mraz."

Because it's not as if traffic law counts as real law, right? (Howie Carr, "Hillary circling as Obama searches for parking space", Boston Herald, Mar. 8).

P.S. in response to comments: I think it's a cultural fact worth recording that the editor of the Harvard Law Review felt no obligation at the time to settle up on a stack of unpaid parking tickets. It's not wholly unrelated to the phenomenon of attorney general nominees' not having bothered to tell the IRS about their household employees, or of U.S. Supreme Court justices' meeting for regular poker nights reputedly in noncompliance with local law: namely, it suggests that sonorous Law Day maxims about the need for each of us to respect the law in its full majesty have surprisingly little traction even in (especially in?) elite law circles. That's a fact worth knowing, if true.

That Obama is running for president now is the least interesting bit of the story (and indeed is only of significance in that it provided the impetus for him to pay up). Far from being received as an unforgivable blot on his character, I suspect the story will (like his smoking habit) serve to humanize the senator for many voters, perhaps especially among those who, like many readers of this site, have a somewhat rebellious attitude toward law to begin with.

P.P.S. There have apparently been some malfunctions with comments on this entry -- if you entered a comment and it didn't show up within a reasonable time, you might want to email and let us know.

• Why the tort reform movement is really a civil justice reform movement. [Point of Law; University of Dayton Law Review]
• What to do about private securities class actions. [Wallison @ AEI]
• Law firm sued when witness trips, dies, in courtroom accident. [Lattman]
• Nifong responds to criticism of his handling of Duke Lacrosse case; KC Johnson not impressed.

• Big corporations have bogus consumer fraud lawsuits, too: NutraSweet maker sues Splenda maker over "Made from sugar so it tastes like sugar." [Legal Intelligencer]
• The effect of a malpractice suit on a physician. [Levy via Kevin MD]
• "Are our institutions or is our sense of justice stronger because of [the Libby] prosecution?" [Fred Thompson; WaPo oped; also many posts by Frum]

Apropos of Walter's post about silly warning labels, such as "contains nuts" on a can of nuts, I figure we ought to slap the same warning label on the state legislature here in New Jersey.

For instance, the New Jersey Law Journal reports that a state Senate committee unanimously approved a bill this week that would require warning labels on... internet dating sites. The bill first requires that the site inform members "in bold, capital letters in at least 12-point type" whether or not it has conducted a criminal background check on its members. And if it does conduct criminal background checks, it then has to disclose that there's no real point to conducting criminal background checks:

[The service] shall state that criminal background screenings are not foolproof; that they may give members a false sense of security; that they are not a perfect safety solution; that criminals may circumvent even the most sophisticated search technology; that not all criminal records are public in all states and not all databases are up to date; that only publicly available convictions are included in the screening; and that screenings do not cover other types of convictions or arrests or any convictions from foreign countries.

On February 14, 2007, the Food & Drug Administration issued a recall for certain brands of peanut butter manufactured by ConAgra. On March 1, 2007, the FDA announced it had identified the salmonella at the manufacturing plant. Enter the lawyers.

On Wednesday, a Louisville, Kentucky man who claimed he got sick after eating the peanut butter, filed suit against ConAgra. (The story featured a disclaimer I don't believe I've seen elsewhere in news coverage of litigation: "Claims made in filing a lawsuit give only one side of the case.") I certainly didn't think that this was the first suit filed against ConAgra, but I naively thought it was one of the first. Ha! (In my defense, I wasn't blogging at Overlawyered at the time, and I hadn't eaten the peanut butter, so I didn't have any particular personal or professional reason to notice the announcements of the lawsuits.)

The first suits -- at least three of them -- appear to have been filed on February 16, 2007, just two days after the FDA's announcement. Each of those three involved individual plaintiffs; in case you were wondering, the first (of many) class action lawsuits seems to have waited until February 20, 2007. The huge four-day gap between the filing of the individual suits and the class-action suits is explained by the three-day Presidents Day holiday; Feb. 20 was actually the next business day.

Is there some sort of trial lawyer contest like the old Name That Tune game show? "I can file that suit in 72 hours." "I can file that suit in 48 hours." "Okay, file that suit!" There's certainly no legal reason the suits need to be filed that fast; there was no approaching statute of limitations, for instance.

We've covered a number of cases over the years in which parents sue physicians and others over the "wrongful birth" of perfectly healthy children, demanding, as part of the claimed damages, the cost of raising the youngsters to adulthood: May 9, 2000 (Phoenix), Jun. 8, 2000 (Revere, Mass., outside Boston), Apr. 9, 2006 (Scotland), and Nov. 1, 2006 (Germany). Many such cases arise from failed sterilizations or other efforts at birth control, but a new suit by Jennifer Raper of Boston against Planned Parenthood and two doctors claims that an abortion went awry. "The [Massachusetts] high court ruled in 1990 that parents can sue physicians for child-rearing expenses, but limited those claims to cases in which children require extraordinary expenses because of medical problems, medical malpractice lawyer Andrew C. Meyer Jr. said. Raper's suit has no mentions of medical problems involving her now 2-year-old daughter." ("Boston woman sues for child-rearing costs after failed abortion", AP/Boston Globe, Mar. 7; Jonathan Saltzman, "Suit seeks compensation for botched abortion", Boston Globe, Mar. 7). More: "One day Jennifer Raper's daughter will punch her mother's name into Google and discover that she was the result of 'a failed abortion.'" (Taranto)

Lands on his feet every time, it seems: "The U.S. Justice Department has offered immunity from prosecution to attorney Richard 'Dickie' Scruggs in exchange for his testimony in a judicial bribery trial involving his former colleague, Paul Minor." (Biloxi Sun-Herald, Mar. 7). We've extensively followed the trial and now retrial of Minor, a prominent Mississippi attorney, and several judges.

I've got a short piece in The American, the recently launched American Enterprise Institute magazine, about the problem of overzealous warning labels, taking as my point of departure Bob Dorigo Jones's new book Remove Child Before Folding. Alert readers will notice that the piece is based on my Times Online column of a few weeks ago, adapted with about three paragraphs' worth of new and added material, mostly on how liability law helps worsen the problem. (Walter Olson, "Warning: This Column Might Give You Something to Think About", The American, Mar. 6).

For more coverage of Remove Child Before Folding, see Jan. 6, Jan. 26, etc. Reason magazine editor Nick Gillespie, incidentally, reviewed the book in the New York Post here.

So, a Long Island school provides John Cave Jr., a hearing-impaired ninth grader, with a sign-language interpreter and student note taker for each of his classes and a daily, one-on-one lesson with a hearing instructor. Cave's teachers are also given radio transmitters that amplify their voices. And he gets extra time to take exams. All to make sure that his partial deafness (he has 69%-70% hearing, thanks to cochlear implants) do not negatively affect his education. The school's reward for this accommodating behavior?

A $150 million (!) lawsuit. (Relax. Cave is only claiming to be damaged to the tune of $50 million. The $100 million balance is for punitive damages.)

Why? Because the school drew the line at allowing Cave to bring his "service dog" (Simba, in case you were wondering) to school. Although the suit alleges that Simba assists Cave by alerting him to "cars, fire alarms, and bell rings" (Incidentally, I am not an expert on cochlear implants, but wouldn't 60% hearing be sufficient for really loud sounds such as fire alarms?), the student's primary complaint does not seem to be that he cannot hear these things at school. Rather, he complains that spending the school day away from Simba impairs their bonding and Simba's effectiveness.

Fortunately for taxpayers, the federal judge handling the case declined last week to grant an injunction ordering the school to admit Simba, on the grounds that "John Jr. is well served by the East Meadow School District" and also on the grounds that the family seemed more interested in suing than resolving the situation:

But Spatt in his decision faulted the teen's parents for rebuffing offers to attend a district hearing on the matter and ultimately failing to "exhaust" all the administrative processes of local and state educational agencies.

"Instead, they proceeded with this lawsuit," Spatt said, noting that Nancy Cave invited a news crew to show up with her and her son on Jan. 4 as they tried unsuccessfully to get a principal to let Simba inside the building with his owner.

In 2003, a lesbian couple from New Jersey paid about $3,000 to Repro Lab, a Manhattan sperm and embryo bank, to store six embryos created from eggs taken from one of the women. When the couple approached the bank last year in order to retrieve the embryos, so they could be implanted into the other woman, the bank told them it had lost the embryos.

The couple's demand for compensation for this clear breach of contract, for "pain, injury, mental anguish and emotional distress"? $3,000,000. Plus punitive damages. (New York Post; AP)

On January 20, a Hoboken City Councilman was pulled over for running a red light in New York City. Before arresting him for DWI, the NYC officer who pulled him over calls the Hoboken police department, asks "hypothetically" whether he should arrest the councilman. The Hoboken officer (who clearly realizes the call is being taped) tells him to do his job; the NYC officer persists, asking whether the Council has treated the police department well.

Courtesy of the Jersey Journal: Transcript and MP3 of call.

The City Councilman denies he asked for special treatment.

Another from the oeuvre of Jim ("The Hammer") Shapiro (Feb. 6, etc.). "They started it, and I will finish it".

Oh well, at least it's not as intrusive as driving around their neighborhoods and interviewing their acquaintances:

[Bob] Marx, a personal injury attorney at The Law Offices of Robert Marx in Hilo, Hawaii, regularly hires a handwriting expert to help him select a jury.

"I feel like it's a significant competitive edge," he said. "It's not 100 percent accurate, but if you know some history or a little bit more about a potential juror together with this analysis, it helps a whole lot more."

Since the mid-1990s, Marx has paid an expert to analyze jurors' handwriting for all of his big trials. The findings help paint a picture of the jurors and point out characteristics such as whether they are likely to be leaders or followers, if they are analytical or visual, or toward which side they are likely to be sympathetic.

Marx's last three juries awarded a total of $31 million, and he said handwriting analysis helped him.

(Vesna Jaksic, "Looking for Clues in a Juror's 'John Hancock'", National Law Journal, Feb. 27).

16-year-old A. and her 17-year-old boyfriend J. took risque photos of the two of them cavorting and emailed them from A.'s home computer to J's email account. "Neither teen showed the photographs to anyone else." The photos nonetheless somehow came to the attention of Florida police, both teens were prosecuted on child porongarphy* charges, and by a 2-1 vote, a Florida appeals court in January dismissed A.'s constitutional claim (Declan McCullagh, CNET/News.com, Feb. 9). Discussion: Lippard Blog, Feb. 10. (* = deliberate misspelling)

Let's just hope no one tells the Kentucky bar about the new Coke Zero campaign, with its reference to a supposed law firm by the name of Covet & Yourminy. (Stuart Elliott, "Can’t Tell Your Cokes Apart? Sue Someone", New York Times, Mar. 5). The Times misses the chance to mention the similarity of the widely noted AllTel campaign last year (Jul. 6, Aug. 3).

As I've previously mentioned, one of my pet peeves is the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits. Technically, this claim is true. But it relies upon an extremely narrow definition of "frivolous" -- the vast majority of absurd cases covered here on Overlawyered are not considered frivolous by current legal standards -- and those who practice know how rare it is for judges to actually issue sanctions.

Take John Aretakis. He's a New York attorney who has carved a legal niche for himself suing the Catholic Church over sexual abuse by priests. Well, to be more precise, the legal niche he occupied, according to a federal judge's ruling last month, was filing a series of "utterly baseless" lawsuits against the Church, in which he ignored the law, misrepresented the law to the court, filed cut-and-paste complaints without proofreading them, and filed and publicized the suits for the improper purpose of embarrassing and humiliating Church officials. (AP, North Country Gazette).

Although this was not the first such lawsuit filed by Aretakis -- or the second, or the third -- and even though his suits have been uniformly rejected, this is the first time a judge has sanctioned him for his behavior. The court described the suit harshly as follows:

Taking Mr. Aretakis’s behavior in this case as a whole, it is clear that his conduct is sanctionable because it is sloppy and unprofessional; the pleadings are so far removed from adequate that they cannot be said to have been filed in good faith or after a reasonable inquiry; the bulk of the allegations dealing with sexual abuse are wholly irrelevant to the RICO claim, and; the Title VII claim is admittedly without basis in law.

And it wasn't because Aretakis made such a good argument in his defense:

Not surprisingly, Mr. Aretakis’s response to the Motion for Sanctions does not respond in a meaningful way as to why sanctions are not appropriate here. Instead, Mr. Aretakis recounts an irrelevant action in Tucson, Arizona, and another regurgitation of thrice-told tales of sexual abuse, plus non-sequiturs concerning a drunken process server with felony convictions attempting to serve process, among other wholly irrelevant topics.

• NY trial lawyers furious over state medical society's plan to put informational posters and postcards in docs' waiting rooms re: Topic A [Kingston Daily Freeman]


• But can you sue Spider-Man? "Superheroes" linked to multiple pediatric injuries [BlogMD]


• By reader acclaim: German farmer's suit claims teenagers' fireworks scared his ostrich Gustav right out of the breeding mood [AP/Jake Young]


• Doug Weinstein is a fan of Edwards, but many of his commenters aren't [InstaLawyer first, second posts]


• Former Georgia legislator, author of bill that resulted in Genarlow Wilson's 10-year sentence (see Feb. 8), says he's sorry [Towery @ TownHall]


• A lesson for grabby New Orleans Mayor Nagin? "In the massive floods of 1993, levees broke up and down the Mississippi — and no one sued. They rebuilt." [Surber]


• "Defamation of religion" soon to be regarded as contrary to int'l law? [Brayton channeling Volokh](more: Stuttaford)


• Wouldn't you just know: Bertolt Brecht's sly legal dodges, at expense of Kurt Weill and other collaborators, still keep litigators busy long after his death [National Post]


• U.K.: "Rectorial liability is a time bomb under every enticing glebe" [Guardian]


• NYC subway system didn't own or control access stairs, but can be sued over slip-fall anyway [Point of Law]


• Grocery worker with Down's Syndrome couldn't follow basic sanitary rule, but that didn't mean supermarket could fire him [three years ago on Overlawyered]

Updating yesterday's post about a widely discussed New Jersey case: "Deliberating just 15 minutes, a Morris County civil jury at 4 p.m. today declared that a Chester Township teenager was not to blame in 2003 when she collided with a bicycling physician while riding her in-line skates." (Peggy Wright, Morristown Daily Record, Mar. 5). Earlier, it was reported: "The girl was knocked to the ground in the collision and bruised, but her parents have not filed a countersuit." ("Bicyclist sues child roller-skater over accident", AP/CourtTV, Mar. 1).

• Forging a judge's signature on a court order: (New York Law Journal)

• Cursing at a judge in court. Repeatedly. (Colorado Springs Gazette)

• Committing multiple counts of blatantly obvious perjury to fight a minor traffic ticket. (Palo Alto Daily News).
  

David Nieporent has completed the customary week in the guest-blogger's chair but we've invited him to stay on and do some more posting, and he's generously agreed to give it a try. Congratulate us/him...

• Ray Nagin asks for $77 billion (only $1 billion for infrastructure) in claim; traffic jam outside of courthouse as lawyers rush to file Katrina claims against Army Corps of Engineers. [New Orleans Times-Picayune; USA Today; CNN/AP]
• Illinois trial lawyers try to expand already broad joint and several liability in that state. [Illinois Justice Blog]
• Florida legislator Frederica Wilson wishes to ban term "illegal alien": "I personally find the word 'alien' offensive when applied to individuals, especially to children. An alien to me is someone from out of space." (She's okay with "illegal," however.) [News-Press; Overcriminalized blog]
• Defense-attorney time-stamp shenanigans. [Above the Law]
• The Deamonte Driver case: lawyer blames the government for parental neglect [Frum]
• Writing contracts with clarity. [Dillon]
• Are law firms breaking the law when they bend to client demands for lawyers of a particular color? Curt Levey's paper "Legal Implications of Complying with Race and Gender-Based Client Preferences" to be discussed at AEI March 13. [AEI; see also Financial Times; Overlawyered Jan. 9 and Dec. 27]

In 2003, four men were unhappy with the service they got at the photo lab at a Walgreens drugstore in Reno, Nevada. They claimed that their photographs weren't developed properly, and that when they complained to the clerk, he yelled at them, walked away, and slammed a door behind him. So they did what anybody would do in that situation: they sued Walgreens for $2.5 million.

Why was a customer service issue, over what was probably a $10 store bill, worth millions of dollars? Well, the four men, who were black, claimed that the clerk shouted a racial slur as he walked away, and -- in the words of the plaintiffs' lawyer -- "in our system, money equals justice." The clerk acknowledged slamming the door and walking off the job, but denied the slur. It took a jury less than an hour to find for Walgreens. (AP, Feb. 14)

Just in case the jury wasn't convinced by the racial slur argument, the plaintiffs tried to concoct some argument about "workplace violence" -- an argument which is expected to provide the basis for their appeal to the Nevada Supreme Court. The plaintiffs argue that the judge improperly excluded some evidence of past demonstrations of temper by the clerk -- but since the only "violence" the plaintiffs identified was the slamming door, it's not clear what any of this has to do with a legal cause of action. Once again, though, this case presented arguments that internal company policies constitute grounds for liability:

Their lawsuit said the company's management knew, or should have known, that McCord had a history of problems with his temper and that he should not have been put in a customer service position.

"There's a lot of conduct Mr. McCord engaged in in the workplace that violates (Walgreens) policy," said Ian Silverberg, one of the lawyers representing the four Texas men.

Silverberg said that, among other things, the appeal would challenge rulings by Berry that prohibited the jury from hearing some information about McCord's temper, as well as other cases of discrimination lawsuits brought against Walgreens in other states.

He said McCord's temper was especially relevant because it showed he had been in violation of Walgreens' policy against violence in the workplace but never reprimanded.

In Ohio, Shannon Stovall is suing Yahoo for allegedly using her picture in an ad for its email services without permission. She wants $20 million, including "a portion of the profits that have been generated through the use of her likeness, and to cover her legal fees." (GoogleWatch, Mar. 1). "Mitchell Yelsky, one of three attorneys handling Stovall's case, said his client 'has previously modeled and worked for modeling agencies.'" (Anne Broache, "Woman accuses Yahoo of stealing her image", CNET, Mar. 2). For the $15.6 million "Taster's Choice Guy" award in Christoff v. Nestle USA, see Feb. 2, 2005 and Nov. 16, 2006.

11-year-old Lauren Ellis was inline-skating down her street in Chester Township, N.J., one afternoon when a bicyclist approached her from behind, rang his bell and shouted "watch out". Was she responsible, by her startled reaction, for the resulting collision, which broke the cyclist's collarbone? Unluckily for young Ms. Ellis, the bicyclist happened to be a "prominent fertility doctor" named Alexander Dlugi who says he had to miss work as part of recovering from the mishap. (Peggy Wright, "Doctor sues girl, 11, over inline-skating collision", Morristown Daily Record, Mar. 1). Update Mar. 6: jury returns defense verdict.

A New York State Supreme Court Justice has denied a defense motion to set aside the jury verdict finding the Port Authority primarily responsible for the first terrorist attack on the World Trade Center. (AP, Mar. 2) Now to a whole new jury trial on damages for the up-to-400 remaining plaintiffs, unless the Port Authority appeals.

Aside from the bizarre assignment of responsibility (68% to the Port Authority, just 32% to the terrorists), the case also demonstrated yet another exemplary feature of our tort system: a speedy resolution of claims. The attack was fourteen years ago -- and damages haven't even been calculated yet (let alone the appellate process begun).

Originally covered by Overlawyered: Oct. 27, 2005.

On Friday, a judge in Los Angeles dismissed claims by a set of five siblings against ABC Television, which airs Extreme Makeover: Home Edition, based on the novel legal theory that a lawsuit over breach of contract should actually be based upon some provision of the contract. The show had built a new house for the couple that took the siblings in after their parents were killed; after the show aired, the siblings sued ABC and the couple, claiming that they were driven out of the house and the couple had taken donations meant for the siblings.

The judge ruled that ABC's contract was with the couple, not the siblings. Other allegations in the suit, including fraud, negligence and intentional infliction of emotional distress, remain; it's not clear from coverage whether any of these involve ABC. (AP, Mar. 3; earlier details of the proceedings from the Whittier Daily News, Feb 22.)

MSNBC's Dan Abrams interviewed the plaintiffs at the time the suit was filed; their lawyer was unable to give a coherent legal explanation as to why ABC should be liable: Transcript: Aug. 16, 2005. (Deep pockets, anyone?)

Previously covered on Overlawyered Aug 12, 2005.

Not to pile on, but Walter's post yesterday about the follies of NYC Health Commissioner Thomas Frieden omitted a lesser-known regulatory change enacted by the Board of Health at the same time as the trans-fat rule: a rule requiring chain and fast food restaurants to put calorie counts on their menus or menu boards. (Because many people who buy Big Macs are counting calories.) A rule which managed to annoy the regulation-friendly New York City Council because Frieden did it without bothering to ask the city or state legislature first. A rule which had the added virtue of being completely counterproductive.

With the great work David Nieporent has been doing guest-blogging, I rushed back early before I got Wally Pipped.

An op-ed in the Arab American News by Ihsan Alkhatib suggests that banks are closing accounts with people who do business with Saudis; the "know your customer" requirements and fear of liability for being associated with terrorists make the costs of keeping those accounts open prohibitive. Alkhatib cites my Wall Street Journal op-ed on the subject. ("Banks, civil rights groups and community members should lobby together for change in terror laws", Mar. 3).

NB Alkhatib's conclusion "In protecting the banks from frivolous lawsuits, we preserve the civil rights of Arab Americans and American Muslims." Alkhatib is plainly using "frivolous" in the common sense of "silly or socially counterproductive," further evidence of my contention that litigation lobby defenders confuse the subject when they pretend that laypeople are using the term "frivolous lawsuits" in the narrow technical legal sense, since the lawsuits in question are not "frivolous" in that narrow technical legal sense because of the willingness of judges to treat them seriously.

Updating our Sept. 11 ("Neglect Your Kid Now, Sue for $5M Later" and Sept. 26, 2006 items: Lifeway for Youth, a foster-care training agency, has agreed to pay $200,000 to settle Donna Trevino's suit seeking $5 million over the death of her 3-year-old son, allegedly at the hands of his foster parents. "Trevino told police in April to take her children; that her son Marcus Fiesel, who was developmentally disabled, and his older brother and infant sister, were not her problem." The money is supposed to be used on behalf of Marcus's siblings, who may also be beneficiaries of further lawsuits being pursued against other defendants. (Eileen Kelley, "Birth mother settles lawsuit", Cincinnati Enquirer, Feb. 10).

While the NYC Health Commissioner was squandering the city's credibility on trans fats ("totally replaceable", you betcha) and hatching Big Brother schemes for diabetic-watching, the traditional and basic functions of his office, like keeping rats out of restaurants, were going untended, notes an editorial in the Post. "The Taco Bell in question had received a, you should pardon the expression, clean bill of health from one of Frieden's restaurant inspectors 24 hours before the rats were taped doing their "Happy Feet" impressions last Thursday morning. ...Of course, if the Taco Bell rats had been smoking, Frieden would have been there to nail the door shut himself." Andrew Stuttaford at NRO thinks it's long past time for Frieden to go. (cross-posted from Point of Law).

Not only will they sue them up one side of the street and down the other for song-copying, they'll tell their parents. (Boing Boing, Mar. 2)

Last October, New York Yankee pitcher Cory Lidle's plane crashed into an apartment building in Manhattan, killing Lidle and the flight instructor who was on board. The National Transportation Safety Board is investigating, but has not yet determined the cause of the crash or issued its final report (nor has it even been able to say definitively who was flying the plane). But New York dentist Larry Rosenthal knows who is at fault: he's suing the estate of Lidle for $7 million, claiming that to be the value of his apartment and belongings destroyed when the plane hit his building. He has nowhere to live and is a "refugee," although Rosenthal's attorney allows that "It's not as bad as someone in Katrina."

There are probably no precedent-setting issues in the case, but we do get this amusing bit of legal analysis from his lawyer (New York Post):

"There's no excuse for smacking a plane into an apartment building in the middle of Manhattan," said the Rosenthals' lawyer, David Jaroslawicz.

The plaintiff is no stranger to litigation; he is currently suing a former patient who he claims has defamed him on the internet. That defamation suit is based on claims on one of the two gripe sites set up by former patients: Baddentist.com and Lyingdentist.com, which contain many curious and colorful allegations. Smile!

I know we're supposed to give prominent Religious Right figure Chuck Colson a pass because of his compelling life story and the work he's done with prisoners, but jeepers, does he ever give a misleading account of the Miller-Jenkins case (Vermont-Virginia lesbian custody battle), discussed earlier in this space Aug. 15, 2004, Dec. 16, 2004, Aug. 26, 2006, and Nov. 29, 2006.

Colson begins his column ("Legal Fictions", syndicated/TownHall, Feb. 28) by announcing that Miller-Jenkins presents "one of the most important legal battles of our time". In fact, as I noted back in 2004, the case presents the somewhat less epochal issue: can a party dissatisfied with a visitation/custody outcome litigated in one state ignore a resulting court order in order to pursue proceedings in what is expected to be a more favorable state?

Colson cites a recent in-depth story about the case in the Washington Post Magazine (April Witt, "About Isabella", Feb. 2). Somehow, however, he omits to mention a feature of the case that figured centrally in that account, namely the outstanding court order that Lisa Miller, biological and custodial mom of Isabella, has been defying for years now. Since Colson does not mention that court order, he naturally does not inform readers that it arose after Miller voluntarily submitted to the jurisdiction of a Vermont court dissolving her civil union with Janet Jenkins. Nor do his readers learn that Miller was happy to pocket child support payments from Jenkins, before eventually deciding to blow off the court order, or try to, by cutting off Jenkins' regular visitations with Isabella.

Nor does Colson describe the current posture of the case. If he did, he would have to acknowledge that both the Vermont Supreme Court and a Virginia appeals panel have ruled unanimously against Miller, who nonetheless continues to defy the court order. There is no indication that Miller's team of Religious Right litigators is uncomfortable with this posture of hers.

Colson frames the story for dramatic effect as one in which Jenkins, appearing from out of the past, demands custody of Isabella -- although the dispute in fact arose over visitation, and although the likely outcome of the case (assuming Miller relents rather than pursuing her contempt of court all the way into a jail cell) is simply going to be the restoration of Jenkins' visitation rights. Pricelessly, Colson dismisses Jenkins' legal rights as those of "a woman [Isabella] barely remembers", without inquiring as to how Miller managed to engineer this state of affairs.

And, no surprise, Colson also fails to mention the relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, which as Eugene Volokh points out "requires courts [in other states] to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage".

Probably the most enduring significance of the Miller-Jenkins case will be as an indication of the willingness of many on the Religious Right, even the lawyers among them, to applaud and defend the defiance of court orders when those orders inconvenience the godly or uphold the legal rights of the ungodly. I wonder whether Colson gives a thought to this when he decries, in the column, "our reckless pursuit of getting whatever we want at all costs".

I also wonder whether the proposition that it's just fine to violate laws and court orders when one feels impelled by a higher cause -- I believe some social conservatives like to label this point of view as antinomian -- is a message that Colson is accustomed to spread when he addresses groups of prisoners in the course of his public work. If so, we can only hope the prisoners don't take the message to heart (& welcome Ed Brayton, MarriageDebate.com, Eugene Volokh readers).

When last we checked, the North Carolina State Bar had filed ethics charges against Durham District Attorney Mike Nifong for his handling of the Duke lacrosse rape case. (Dec. 29) After receiving an extension of time, Nifong has filed his reply to the charges. Blogger K.C. Johnson, who absolutely owns this story, has the details: here and here. The short version, according to Johnson:

The thesis of this filing: Nifong did nothing wrong, and if he gets the chance to engage in massive prosecutorial misconduct in the future, he’ll seize it. This is a man unethical to his core.

In August 2004, a security guard at a Pittsburgh restaurant roughed up Deven Werling, a patron who had insulted him. So Mr. Werling sued the restaurant, the security guard, and, of course... the city of Pittsburgh. It turns out that the security guard was actually a Pittsburgh police officer -- an off-duty police officer -- which made this assault a federal case. Now the city is paying $200,000 as part of a settlement the defendants reached with Werling just before trial (Post-Gazette; WTAE). Apparently,even though the officer was off-duty, he was working security in his official police uniform, and that may have been sufficient to put taxpayers on the hook.

Before you start feeling too much sympathy for the innocent city that was dragged into this suit, though, check out this nugget:

The city's Office of Municipal Investigations found that Sgt. Eggleton contradicted himself under oath, and he was fired.

In October, the dismissal was reduced to a five-day suspension by then-Operations Director Dennis Regan. Mr. Eggleton continues to work as a sergeant.

A man walks into a tattoo parlor (no, it isn't the start of a joke) and asks for his favorite city to be put on his chest. Now the $250 order has become a lawsuit:

But the idea went terribly awry in a North Side tattoo parlor: He left with the word "CHI-TONW" inked into his skin where "CHI-TOWN" should have been.

Now Duplessis is suing the business and the tattoo artist for monetary damages in the 2005 mess after suffering what he says in his lawsuit was "emotional distress from public ridicule."

A group called the Workplace Bullying Institute says it's preparing federal legislation that would ban the rather amorphously defined phenomenon of bullying at work. A possible obstacle: Capitol Hill itself is notorious as the stomping (and ranting and paperweight-throwing) grounds of some of the nation's most vein-poppingly abusive bosses, such as Sen. -- well, you'll just have to follow the link if you want names (Helena Andrews, "Demanding or Downright Mean?", The Politico, Mar. 1). For an earlier go-round, see Dec. 22, 2004.

A prominent and much-admired figure in conservative journalism for decades, Ralph de Toledano died last month at the age of 90. (Dave Zincavage, Feb. 6). The Washington Post in its obituary recounts a sequence of events that did much to darken de Toledano's later years:

In 1975, consumer activist Ralph Nader filed a lawsuit against De Toledano in connection with a De Toledano suggestion — denied by Nader — that Nader had "falsified and distorted" evidence about the Corvair automobile. The case lingered in court for years and cost De Toledano his life savings. Paul Toledano [son of the author] said it was settled out of court.

(Joe Holley, "Ralph de Toledano, 90; author and 'nonconformist conservative'", Washington Post/L.A. Times, Feb. 10).

De Toledano in fact had published an entire critical biography of Nader, entitled Hit and Run: The Rise -- and Fall? -- of Ralph Nader, used copies of which remain available online -- even Nader himself can't prevent that. The entire episode -- in which Mr. Litigation, then at the height of his public fame and influence, inflicted vindictive and personal financial ruin on a well-known journalist who'd had the temerity to criticize him -- is one that you'd think would have provoked expressions of concern and solidarity from leading writers and civil libertarians of the day, and yet it didn't (scroll to #8). The episode tends to get no mention these days in accounts of Nader's life (which, whatever their varying opinions of his actions as a spoiler presidential candidate, tend toward cloying hagiography of his earlier career). And one consequence of its lingering chilling effect (who wants to volunteer to be the next de Toledano?) may be that no one will be willing to write another genuinely unsparing biography of Nader, at least for publication during the subject's lifetime.

For a sampling of our posts about Nader, see Jun. 13, 2000; Feb. 22, 2004; and this set of 2000-2003 links.

Headline in the Boston Globe:

Judge wants new counsel for man accused of stabbing lawyer

I've been discussing this very bad bill (fraudulently labeled the "Employee Free Choice Act") at Point of Law here, here, and here. The Wall Street Journal editorializes against it today ("Walter Reuther's Ghost", Mar. 1) as does the Los Angeles Times ("Keep Union Ballots Secret", Mar. 1). More: National Review, Investor's Business Daily.

Rebekah Rice, a high school freshman, was teased about being Mormon. She responded by saying, "That's so gay." She was reprimanded by the school principal, and a "notation" was put in her file. She was upset, but she got over it. Ha! Just kidding. This is Overlawyered. Actually, she filed a lawsuit, claiming her constitutional rights (to call things gay?) were violated.

It's not clear what sort of "notation" was put in her file, but the lawsuit demanded (in addition, of course, to money) that it be expunged. In the abstract, one might be sympathetic to the notion that informing college admissions offices that she was punished for using derogatory slurs might be damaging to her future prospects. (Rice denies -- credibly, in my view -- that the phrase was aimed at gay students.) Except, of course, that filing a lawsuit is hardly the way to keep her disciplinary history a secret.

(Previous posts about teenagers suing over school discipline: Feb. 22; Jan. 5)

The First Amendment and Section 230 of the Communications Decency Act protect search engines' decisions about what content to carry; Google can't be forced to run ads or "honestly" rank websites, according to a federal judge in Delaware. Eric Goldman has the details.

Goldman notes that this particular case, filed by a pro se litigant, was clearly frivolous, but the decision is still useful for Google, which, as the dominant player in the search engine game, faces suits elsewhere based on similar theories.

It was one of the topics of his prime-time special last Friday:

[Attorney Allen] McDowell is now debating whether to file new lawsuits claiming that vaccines cause autism. I said to him, "You scare people and make money off it!" After a pause, he replied, "True."

("The Fear Industrial Complex", syndicated/RealClearPolitics, Feb. 28; Autism Diva, Feb. 23 and Feb. 24). More: Mar. 8, 2006 and many others.

New York City Comptroller William Thompson, Jr. regularly hires outside law firms to represent city pension funds in shareholder lawsuits, as with a recent suit against Apple Computer. The New York Sun "[obtained] the names of the nine law firms in the 'securities litigation pool' that the city uses to file these shareholder suits" and found that lawyers associated with the firms had donated more than $100,000 to Mr. Thompson's campaign coffers. ("Thompson's Trial Lawyers" (editorial), New York Sun, Feb. 27). See Aug. 14-15, 1999 (ABA delegates defeat proposal to ban pay-for-play); Sept. 25-26, 2001. The Committee on Capital Markets Regulation aimed some criticism at the practice: see Point of Law, Dec. 1.

You don't want to know how many calories are in one of HRH's Cornish pasties. The authentic Cornish style of pasty always did seem heavy to me, as one raised on the Upper Peninsula Finnish kind. (Rebecca English and Sean Poulter, "The Royal pasty that's unhealthier than a Big Mac", Daily Mail (UK), Feb. 28; "Prince Charles says ban McDonald's food", AP/Seattle Post-Intelligencer, Feb. 28).

His friend Ronald Coleman wants to know (Feb. 28).