April 2007 Archives

John Tierney does some good reporting on the compromise federal jury verdict that criminally convicted William Hurwitz on sixteen counts of drug-dealing: "Lapses in medical judgment – or even just differences in medical judgment – have been criminalized. A doctor can be suddenly redefined as a non-doctor. All it takes is a second opinion from a jury." Also: Kirkendall, Sullum, Kevin MD, Szalavitz, Balko, Satel (2004), Cato (2004), Hurwitz web site. Related on Overlawyered: Jan. 19, 2006, Jun. 15-17, 2001.

"A Canadian man who admitted shoplifting C$106 in razor blades has been awarded C$12,000 ($10,645) for injuries he suffered when he was tackled by store security guards. ... [Daniel] Baines, who represented himself, said employees of the supermarket in a Vancouver suburb used unreasonable force when he struggled during his capture." (Reuters, Apr. 20). Which suggests once again that Canada has still not "Americanized" its litigation system in any thoroughgoing way: how unlikely is it that a suit in a large American city by an injured-while-struggling thief, if successful, would result in an award as modest as $10,645? More: compare Jun. 13, 2006 (Rochester, N.Y. case).

B.J. Khalifah of Grosse Pointe, Mich., who had a letter to the editor in the WSJ last week, takes a view of the litigation process that makes even ours look relatively upbeat (WSJ Law Blog, Apr. 24).

A common complaint about abusive class action litigation is that the lawyers rake in the big bucks while the class members walk away with pennies. Still, Overlawyered repeat offender Lakin Law Firm (many entries) may be taking it to a whole new level. The Madison Record reports:

Mark Brown of the Lakin Law Firm bargained a class action lawsuit down to a penny at a hearing before Madison County Circuit Judge Dave Hylla.

The suit alleges that in 1999, Old Kent Mortgage charged three borrowers $100 for a credit report, paid less than that for the report, and improperly retained the difference.

In all seriousness, given that just to bring the suit Lakin had to dig up as its client -- the Stevens family -- someone who had taken out a mortgage four years earlier (the mortgage was taken out in 1999, and Lakin did not bring the suit until 2003), I suspect that there won't be a whole lot of other class members making claims anyway. What's a little odd is that this suit was reportedly filed four years ago and apparently nothing has happened on the case yet.

Incidentally, the Stevens family seems to have very bad luck with banks and mortgages; they and the Lakin Law Firm filed another class action lawsuit against the bank over mortgage closing costs in 2004.

As David noted the other day, Florida attorney Willie Gary, whose doings are often mentioned on this site, had asked that a court award fees of $11,000 an hour for his work in a trade secrets suit against Motorola. Readers may be interested in the sequel: Circuit Judge Leroy Moe awarded Gary and other lawyers only around a quarter of their request, amounting to $23 million of the asked-for $96 million in fees and costs. The judge also passed over a request that Motorola be hit with $100 millions in sanctions and restitution, though Gary might be able to obtain further consideration of that request. (Adrian Sainz, "Motorola ordered to pay $22.9 million", AP/Miami Herald, Apr. 20)(via Ashby Jones, WSJ Law Blog).

A Deputy Secretary of State resigned after ABC News tracked down his cell-phone number from the alleged D.C. madam's records in anticipation of a 20/20 story they'll be running on Deborah Jean Palfrey (Mar. 20). (The Blotter via Franke-Ruta) The Washington Post story does more to play the blackmail angle that ABC ignores.

Update: and still more on the front page of the Sunday WaPo.

In Opinion Journal:

Even the tort bar understands how deeply loathed it is by the American public. The Association of Trial Lawyers of America didn't last year change its name to the bland "American Association for Justice" for nothing.

So no, even the old liberal lawsuit bulls such as Henry Waxman or [Barney] Frank won't start calling for the repeal of the 2005 Class Action Fairness Act, or for other blatant legislative assists to the trial bar. Instead, Democrats intend to reward the legal industry with more subtle payoffs. The most obvious gift will be a moratorium on further legal reform. Beyond that, Democrats will rely on two tried-and-tested tools to aid and abet the legal community. They've employed both in the past few weeks. ...

A Democratic Congress means far more regulation, and any new regulation is an opportunity to insert a line or two giving the tort bar greater rights to sue. These provisions will be subtle and technical, designed to escape notice. But just in case they do raise a red flag, they'll also be tucked into bipartisan or must-pass legislation (such as the Iraq supplemental), making it that much harder for Republicans or President Bush to shoot them down.

It's a measure of how well Republicans played tort abuse to their political advantage that Democrats today are reluctant to brazenly flack for the legal class. If the GOP wants to keep it that way, it will have to start working harder to expose the quiet ways in which the left is now helping trial lawyers bilk the system.

The other means is by taxpayer-funded subpoenas and hearings to develop evidence and publicity for the trial bar.

Strassel claims that there is such an earmark created at the behest of ATLA, subtly providing an implied cause of action against chemical manufacturers in H.R. 1591, the soon-to-be-vetoed Iraq War supplemental funding bill. Indeed, the provision is difficult to find amidst the provisions for the milk income loss contract program and renewal grants for women's business centers. I suspect Strassel is referring to the anti-preemption provision in Section 1501(a) of the bill, effectively permitting lawsuits against chemical facilities that comply with Department of Homeland Security regulations without once mentioning the word "lawsuit." If there is a terrorist attack on a chemical facility, trial lawyers will have a deep pocket to blame.

Perhaps we, as a society, would agree with the Democratic Party and would prefer trial lawyers, instead of the Department of Homeland Security, to be in charge of chemical plant security. (Trial lawyers do have the advantage of getting to operate only in hindsight.) But shouldn't that critical decision be made openly?

I am decidedly male (as ascertained by this test applied to a couple of my recent columns). See Dale Carpenter @ Volokh, Apr. 27, who finds that some other well-known writers aren't the genders you might expect them to be.

Elsewhere around the world Ferrero Group, the Italian candy company, sells (with a suitable warning label) a treat called Kinder Surprise which consists of chocolate surrounding a small toy. However, the product is said to be illegal for sale in the United States: according to Donald Mays of Consumer Reports, "a nonfood item cannot be imbedded in a food product" under a law dating back to the 1930s. ("Choking-Hazard Easter Eggs Appear On Store Shelves", WNBC, Apr. 5). If accurate, this would help explain something we've noted a couple of times in earlier posts (Feb. 1, 2002, Jan. 18, 2007), namely that store-bought Mardi Gras King Cakes do not have the little figurine baked into their batter that is found in the more authentic New Orleans versions.

The LA Superior Court has posted the 18-page jury questionnaire, which is relatively restrained as these things go. Less restrained appears to be the blame-the-victim tactics that defense attorneys apparently plan to use. Slate's Timothy Noah has a good overview and is blogging the trial from his tv set; the LA Times and CourtTV also have blogs and a web page of resources. Amazingly, in the midst of a murder investigation, Spector decided to sue his first criminal defense attorney, former OJ-Dream-Teamer Robert Shapiro, who successfully bailed him out; the resulting civil deposition of Spector has to be seen to be believed, and probably has something to do with Spector's decision to drop the suit in 2005. Spector is on his third set of defense attorneys.

Update: the LA Superior Court's website appears to use dynamic addressing that prevents the deep-linking I'm doing for the jury questionnaire and briefing. They are available directly from the LA Superior Court page.

• Big news: California judge: contingency-fee lawyers hired by state present inherent conflict of interest. [POL roundup; Santa Clara v. ARCO]

• Must-read post about Westrup Klick's fishing for clients in class actions. [Cal Biz Lit; Lattman; Bodner v. Oreck Direct]

• Why not let the market decide the optimum level of securities litigation? [Jim Copland @ NY Sun; AEI event; 10b5 blog; W$J]
• More on subprime mortgages. [Frank @ POL; Michael Lewis @ Bloomberg via Kirkendall]
• Watch what you say about lawyers dept.: Filmmaker complains about lawsuit in memoir, gets sued by former opposing attorney for libel [Ferlauto v. Hamsher @ Don Murphy]
• Update on clinic sperm mixup case [On Point]

• Tunc pro nunc: Justice Roberts is a funny guy [Kerr @ Volokh]
• So is this Arkansas attorney. [Snopes]
• Seven years ago on Overlawyered, Pets.com sues Conan O'Brien show over sock-puppet dogs; ATLA tries to threaten senator. Three years ago: $3M verdict (including punitive damages) for failing to fire truck driver who had speeding tickets; also three years ago, motorcyclist runs from police at 130 mph, crashes, dies, family sues. Two years ago, blogger takes big paycut and gets new job.

The anti-game attorney cites reader comments on the Gawker site Kotaku that he considers personally threatening. (GamePolitics.com, Apr. 25; Kotaku, Apr. 23; earlier Kotaku post). Mark Methinitis at Law of the Game says that in his view the complaint "falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade" (Apr. 25).

In Bentonville, Arkansas, Earl Adams says his two teenage boys, ages 14 and 16, were perusing the local library shelves when they accidentally ran across a copy of "The Whole Lesbian Sex Book", for which traumatization they deserve $10,000 apiece. It happened, Adams said, while they were browsing for material on military academies (titter ye not!) and the shock to their sensibilities from exposure to the "immoral" volume resulted in the boys being "greatly disturbed" and undergoing "many sleepless nights in our house." According to the Washington Post, Library Journal has deemed the sex guide by Felice Newman suitable for public libraries. (Emil Steiner, "Off/Beat: Arkansas Dad Sues Library Over Lesbian Book", Washington Post, Apr. 25; "Father Says Sons Traumatized By Lesbian Library Book", 365gay.com, Apr. 20).

Free speech survives intact: the Washington Supreme Court has unanimously ruled that radio talk show hosts' urging of listeners to support a ballot measure does not constitute a "contribution" to the yes side for purposes of mandatory reporting under campaign finance law. (Ryan Sager, New York Sun blog, Apr. 26). We covered the charges against KVI hosts Kirby Wilbur and John Carlson Jul. 11 and Jul. 19, 2005. Eugene Volokh has extensive coverage of the new decision. A concurring opinion by Justice James M. Johnson, joined by Justice Richard B. Sanders, terms the enforcement a case of "abusive prosecution". More: Michelle Malkin; John Fund, OpinionJournal.com, Apr. 30.

Attorney (and now administrative judge) Roy L. Pearson, Jr. paid $10.50 to have some pants altered at his dry cleaners', but was dissatisfied with the results, so sued them on grounds that their "Satisfaction Guaranteed" sign was consumer fraud. Among his claimed damages is the need for a car to find a new dry cleaner. Pearson at first demanded $1150 for a new suit, but turned down offers from the dry cleaner to settle for $3000, for $4600, and for $12000, and claims DC consumer protection law entitles him to $65 million. The Chung family has removed their "Satisfaction Guaranteed" sign. (Marc Fisher, "Lawyer's Price For Missing Pants: $65 Million", Washington Post, Apr. 26; Obscure Store blog; DCist, Apr. 13; ABC-7, Apr. 12).

Update: May 1.

Yesterday's Daily Business Review brought us the story of lawyers running wild in worker's compensation cases. Today, it provides another outrageous story of legal abuses, in a $3 million medical malpractice lawsuit:

Miami-Dade Circuit Judge Gisela Cardonne Ely was shocked. She had just watched a videotape of a medical malpractice plaintiff, who claimed in 2004 that she was permanently paralyzed, walking down the street with the use of a cane in 2005.

"This is the worst case of misrepresentation, of outright fraud, that I have ever had in 22 years," Cardonne Ely said during a March 15 hearing in the case of Wanda Davis-Johnson. "I'm telling you, Mrs. Davis, I'm looking at you in the eyes. I am dismissing your case. I have seen enough. ... I'm making a specific finding that there was a scheme to defraud the court."

What's unusual about this story is that the hospital's attorneys obtained this damning evidence in April 2005, but did not reveal it until almost two years later, in January 2007. According to the hospital's attorneys, they were afraid that the videotape wouldn't be sufficient to prove fraud on the part of the plaintiff. (What does it say about the system if a videotape showing an allegedly paralyzed person walking is insufficient to prove fraud?)

The plaintiff's lawyers complained about the delay:

"If they had shown that videotape to us, we wouldn't have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court's time," Lawlor said. "I don't have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm."

But Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson's two depositions seeking to change her testimony.

Family reunions ought to be interesting, anyway; according to the story, the hospital's lawyers got confirmation of the fraud when the plaintiff's sister-in-law called up and told them.

In 1921, there were massive race riots which led to the destruction of the black section of Tulsa, Oklahoma and the murder of dozens or hundreds of blacks. (See Wikipedia for one account.) At the time, the official story exonerated local whites, blaming the riot on blacks; eventually, the whole incident was forgotten. In 1997, the Oklahoma legislature set up a commission, which issued a report four years later which found that in fact white residents, aided and abetted by the local government, were at fault.

Enter the lawyers. Eighty-two years after the incident, Johnnie Cochran, Charles Ogletree and other prominent attorneys filed a federal civil rights suit against the city of Tulsa and the state of Oklahoma on behalf of the survivors, seeking monetary damages and injunctive relief. As you might expect, courts don't look too kindly on eight-decade old lawsuits, and so the federal district and appellate courts dismissed the suit, on the grounds that the statute of limitations had long since passed. (The Supreme Court declined to hear an appeal.)

So now the lawyers (well, not Johnnie Cochran) are in Washington, trying to get Congress to retroactively extend the statute of limitations so they can sue. Ogletree is a driving force behind the slavery reparations movement, which so far has also foundered on statute of limitations issues; if he succeeds here, be assured that he won't be resting on his laurels.

(To be clear, unlike many of the suits we chronicle on Overlawyered, the Tulsa suit is not inherently frivolous, and it may well be legitimate to assign blame to the city and state, for actions that (unlike slavery) were illegal even at the time. But, to reiterate: eighty years.)

Strong fund-raising helps keep the North Carolinian a credible Democratic alternative; AP cites in particular the generosity of the lawyers at Lerach Coughlin (Jim Kuhnhenn, "Clinton reports $24 mil in the bank, trails Obama in primary donations", AP/DeKalb, Ill., Daily Chronicle, Apr. 16).

Reasonable foreseeability? "A woman has won nearly $240,000 compensation from RailCorp after a judge ruled she was raped because she had broken her ankle weeks earlier at a Sydney railway station. RailCorp was found responsible for the woman's rape at a private home, because she could not escape with her leg in plaster, and for her subsequent depression." (Geesche Jacobsen, "A fall, a rape - and $240,000", Sydney Morning Herald, Apr. 26).

Tim Sandefur has an amusing account of an arbitrator's appalling decision to reinstate a tollbooth collector fired for shooting paintball guns in moving highway traffic. The arbitrator's decision is wrong, but I'll disagree with Tim and agree with the New Jersey Supreme Court's decision that it's not the court's place to substitute their judgment for that of the arbitrator's. The benefit of having arbitration is the lower cost of ensuring finality in decisions and avoiding litigation, and permitting appeals destroys that benefit if matters are simply going to be relitigated in court. If an arbitrator is consistently more wildly wrong than a litigation system (a questionable proposition) such that those lower costs are not justified by the higher error rate the remedy is to negotiate for different dispute resolution procedures in future union contracts. And that goes even when the arbitrator mistakenly rules in favor of the plaintiff.

It made news a few weeks ago when attorney Willie Gary (many entries) requested that a court award fees of $11,000 per hour for his work on a lawsuit against Motorola; the $24 million total demand may have been outrageous, but at least it was part of a $10 billion lawsuit.

But what about a lawyer who requests $150,000 in fees on a case that was only worth $11,000? A magistrate judge actually granted the award, but fortunately the federal judge overturned that insanity, awarding just $4,900 in fees:

Zloch said the case, which lasted nearly three years and produced thousands of pages of court files, should have been resolved with 19 hours of legal work. Legal experts not involved in the case say a six-figure attorney fee request in a simple overtime case is extraordinary.

In 2004, Trina Carlson, formerly of Weston, Fla., sued her former employer, Dr. Marc Bosem, a Weston ophthalmologist, for $11,000 in unpaid overtime wages. Bosem, who acknowledged he owed Carlson overtime pay, was represented by Plantation, Fla., lawyer Jeffrey Norkin. The case was settled in January 2006 for $11,000.

On the attorney fee request, Zloch this month overturned U.S. Magistrate Judge Lurana Snow's award of $142,000 in fees for 455 hours of work at $300 an hour, plus paralegal fees and costs.

Readers of Overlawyered will not be surprised to find out that this practice is not unusual.

For several years, defense attorneys have complained that plaintiffs attorneys are filing overtime claims under the federal Fair Labor Standards Act for small dollar amounts that require little litigation, then claiming attorney fees in the tens of thousands of dollars. They complain these cases are clogging the federal courts and angering judges.

In 2003, Judge Federico A. Moreno rejected attorney Donald Jaret's request for $16,000 in fees on a $315 claim that was settled weeks after the claim was filed. In his order, Moreno wrote that the claim "shocks the conscience of the court. ... This strategy of 'shaking down' defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded."

Over at That Other Website, there's a link to a Findlaw column by Anthony Sebok, entitled, "Could Virginia Tech Be Held Liable for Cho Seung Hui's Shootings, If An Investigation Were to Reveal It Had Been Negligent?" The subtitle of the column, which tells you all you need to know, is "The Unfortunate Answer."

To be fair, Sebok is a law professor, and the question posed is a legitimate academic one: what, if any, legal liability does Virginia Tech face? And also to be fair, Sebok speaks the right words about how Cho bears the primary blame. But at the same time, the article illustrates that the trial lawyers of the sort Overlawyered complains about every day are not revolutionaries; they're just doing what they've been taught in law school. Namely, find a legal theory under which one can blame third parties.

Sebok is careful not to declare the university liable, but at the same time, he doesn't think there's anything farfetched about considering that it might be. He doesn't think there's anything wrong with trying to assign blame to the school for the acts of a criminal. Ultimately, he's disappointed because Virginia is "notoriously pro-defendant," and so even if the victims' families can blame the state, the "final indignity" is that they could likely "only" win a maximum of $100,000. For the actions of a criminal.

This is an old story, but I thought it mildly topical enough to be worth mentioning: CBS aired a television movie last Sunday night about a Tampa man named Bruce Murakami, whose wife and daughter were killed in a 1998 car accident after being hit by a drag-racing teenager. Murakami wanted revenge on the teenager, but after a multi-year campaign to have the teenager charged with a crime, Murakami had a last minute change of heart and forgave the kid. Instead of having the kid sent to jail, he started working with the kid to convince other teenagers to drive safely. The point of the story was how forgiveness was so noble and wonderful, and how it saved Murakami life. (Hey, it was a "Hallmark Hall of Fame" movie.)

An inspiring story, I suppose. The movie forgot to mention, though, that forgiveness apparently only extended to people without deep pockets; Murakami may have let the kid walk free, but that didn't prevent him from suing Dollar Rent-A-Car because the company had rented out -- to the kid's parents -- the car that the kid was driving when he killed Murakami's wife and daughter. ("Dollar settled the case for an undisclosed amount.")

I have an op-ed in today's Wall Street Journal on misguided attempts by trial lawyers and Congress to regulate mortgage lending through expanded liability.

Update: Free version available at AEI. And additional back-and-forth at Point of Law and in the Marginal Revolution comments.

• More on that Edwardsville, Ill. Pizza Hut door-swing case and its attorney-complainant [Madison County Record; earlier]


• Workers at U.K. health and safety agency told not to move chairs in the office, they might hurt themselves [Daily Mail via Nobody's Business]


• Lawyer who hoped for $25 million will appeal arbitrator's ruling awarding him only a solitary buck ($1.00) for "redundant and unnecessary" work on San Diego pension crisis [Lattman]


• New at Point of Law: Ted on Sen. Fred Thompson, Oklahoma enacts liability reform, RFK Jr. as mass-tort tout, birthing balls, and much more;


• Title IX from outer space: now it's Virginia's James Madison U. axeing teams [USA Today; more]


• Westchester County, N.Y. dominatrix sues police dept., saying media frenzy dashed her hopes of Wall Street career [Journal-News; more on attorney Ravi Batra]


• Parodists, retire now: ex-N.J. governor McGreevey, disgraced after hiring unqualified paramour for key safety post, appointed to teach course on ethics [Orac]


• "School choice, but only for the most irritating parents" [Coyote on Supreme Court's pending special-ed case; more]


• Will tainted-pet-food episode give lawyers their long-sought breakthrough on loss-of-companionship, other intangible damages for animal injury? [NLJ; earlier]


• Disgruntled former partner withdraws charge of impropriety over Oz breast implant fees [The Australian; Aust. Prof. Liab. Blog; earlier]


• Dr. who delivered Illinois Gov. Blagojevich's daughter throws in the towel [three years ago on Overlawyered]

• Update: Jarek Molski's appeal of his "vexatious litigant" status [On Point]
• Watch what you say dept.: Beaumont plaintiffs' lawyers subpoena newspaper. [Beaumont Enterprise; Southeast Texas Record; Houston Chronicle]
• "New York's Most Obnoxious Lawyer." If anything, the profile is soft. [Village Voice via ATL; see Apr. 16]
• Class action phishing [Oklahoma Attorney General]
• Tales of a Dallas poker raid [Balko]
• "If I was going to go into the newspaper business all over again, I’d be the lawyer who advises the paper to fire me and free up more money for legal fees." {Steyn]
• "If you really want to understand inequality today you must first understand Harry Potter." [MargRev]

If you believe you are called to don unique garb and headgear to reflect your evolving spiritual quest, you may find it harder to keep your job at the nation's best-known mass-market retailer. "Wal-Mart's attorney declined comment, but in legal pleadings the company said the Universal Belief System isn't a bona fide religion and that it fired [Daniel A.] Lorenz because of provocations he initiated under the guise of protected religious expression. ... Lorenz was seen outside work in secular clothing, Wal-Mart's pleadings said." A federal district judge granted the store a summary judgment, which Lorenz is appealing. (Zeke MacCormack, "Plaintiff in headdress doesn't win over judge", San Antonio Express-News, Apr. 9; "Wal-Mart employee's attire gets him fired", Mar. 8, 2004).

"Hedge funds and institutional investors are financing the latest wave of IP lawsuits. ... Says Daniel McCurdy, a patent consultant in Warren, N.J., 'They are the arms merchants in the new patent wars.'" (Nathan Vardi, Forbes, May 7). For more on champerty, a former offense at common law which consisted of financing the prosecution of a lawsuit in exchange for a share of the proceeds, follow this link.

The Milwaukee Journal-Sentinel explains that it's discontinuing the practice because stepping onto porches and placing the paper behind the screen is just too dangerous, at least legally:

...A more critical reason for the new delivery policy is to insure distributor safety and to protect our subscribers from liability issues. Should an Independent News Distributor become injured while delivering on your property, you, as the homeowner are legally liable for damages. One of the major reasons Journal Sentinel is moving to doorstep delivery is to avoid this situation for both our customers and our distributors. ...

Sincerely,

Sheila Davidson
[Vice President/Circulation]

(Romenesko, Apr. 23).

By recognizing its own limitations, a judicial system can assist in welcoming in the Spring:

The traditional English village fete received the backing of senior judges [last month] after they threw out a £150,000 damages claim made by a woman who broke her leg in a hole left by a maypole.

The Court of Appeal heard that villagers must be allowed to uphold their centuries-old celebrations without worrying that they will be sued if accidents happen.

Lord Justice Scott Baker said: "If the courts were to set a higher standard of care than what is reasonable, the consequences would quickly be felt.

"There would be no fetes, no maypole dancing and no activities that have come to be a part of the English village green for fear of what might go wrong."

(Martin Beckford, " Legal victory for village fetes and maypoles", Daily Telegraph, Mar. 2).

More things you really shouldn't do if you're a lawyer:

• While having an affair with a married client, draft a will for him in which he leaves you nearly $5 million from his estate (Orange County, N.Y. estate lawyer Michele Okin, already disbarred over unrelated client fraud; a judge threw out the will)(New York Law Journal)


• Hire a thug to rough up clients who owe you money (former Winnipeg immigration lawyer Ingrid Chen, sentenced to 18 months behind bars)(CBC)(more at Legal Juice)


• Serve as straw man for a 3,000-client bogus accident ring (now-disbarred Solomon Kaplan, convicted in New York of witness tampering and making false statements to an FBI agent, though the Second Circuit vacated his insurance fraud convictions on account of judicial error)(New York Law Journal)

Curious passage in a Law.com profile of federal prosecutor Michael Wang:

"Mike is just different," said an assistant U.S. Attorney who has known him for years. "If anything, he tends toward the rabid. I like him."

An admiring defense lawyer concurred: "He's an animal."

(Justin Scheck, "Corporate Crime Prosecutor Plays Hard", The Recorder, Apr. 13).

"...unless you want to be a lawyer."

reason: That would thin the herd pretty quickly, wouldn't it?

Rauch: Yeah, it sure would.

-- Jonathan Rauch, interviewed by Nick Gillespie in the new Reason ("The Radical Incrementalist", Apr. 20).

• Damned if you do, damned if you don't: nice summary of suits involving schools and suicidal students, both for allegedly overreacting and allegedly underreacting [On Point; earlier: Apr. 20, Apr. 19, May 30]
• "If, for example, the University of Southern California here in Los Angeles were shut down every time there was a shooting in the neighborhood, the place would be out of business in less than a month." [Dunphy @ NRO]
• Blaming video games for murder (Apr. 18) [Rangel MD; Kotaku]
• "In such public cases, your opponents attempt to take a picture of you on your worst day and insist that this is who you are as a person. Outside the doors of divorce court, I have friends, I have respect from people I work with and I have a normal relationship with my daughter. All of that is threatened whenever one enters a court room." [AP/LA Times]
• ATLA's nonsense on McCarran-Ferguson [ethicalesq]
• A case where a witness really was an ass. [MSNBC]
• "Far from all 'lawsuit abuse' is committed by personal injury lawyers." (We agree.) [BeldarBlog via Schaeffer]

My new column in the Times (U.K.) is on the many costs of HIPAA, the federal law which even now prevents institutions from releasing the Virginia Tech psychopath's health records (privacy rights extend after death) and played a notable role (along with the Buckley Amendment/FERPA) in restricting the chances for relevant actors to compare notes on his symptoms of madness before it was too late (Walter Olson, "Could less rigid privacy laws have prevented the Virginia tragedy?", Apr. 20).

More: Dr. Wes has some additional HIPAA thoughts, as does Jeff Drummond at HIPAA Blog.

That didn't take long: according to Prof. Childs in a post yesterday, at least one legal advertiser has bought Google AdSense words in quest of victim families. Those who click on the ad get redirected to personalinjuryattorney.com.

Ramesh Ponnuru at National Review analyzes the voting record of trial-lawyer-turned-Presidential-hopeful Sen. Fred Thompson (R-Tenn.), and is kind enough to quote me (Apr. 20). Earlier: Apr. 10.

More: Thompson's reply is here, and Ponnuru's rejoinder here.

David Bernstein is presiding over a thread at Volokh (Apr. 18).

More from the WSJ's editors today:

A reasonable university administrator might conclude from all this [the suits against Harvard and MIT over the Sinedu Tadesse and Elizabeth Shin episodes, respectively] that mentally ill students--when there is even a remote possibility that they will be dangerous--need to be removed from campus, at least until their condition has improved. But not so fast. In 2004, George Washington University suspended Jordan Nott after he sought medical treatment for severe depression. Officials said later that they were trying to act in Mr. Nott's best interests, by forcing him to take time off to get counseling. Mr. Nott sued the university, arguing that it had violated his rights under the Americans With Disabilities Act. The school and Mr. Nott settled out of court last fall.

In the same rights-based spirit, Virginia recently passed a law barring public colleges and universities from punishing or expelling students "solely for attempting to commit suicide, or seeking mental-health treatment for suicidal thoughts or behaviors."

("Caught in the (Legal) Crossfire", Apr. 20).

And: "Privacy and anti-discrimination laws have meant paralysis in the face of the scarily insane." (Kay Hymowitz (Manhattan Institute), "In loco parentis - not", New York Sun, Apr. 20, original at City Journal). Speaking of privacy laws, Hymowitz writes:

Some years ago, when my daughter was starting out at Amherst, the college president explained the terms of the Buckley Amendment to the parents of incoming freshmen. One parent asked in disbelief, "You mean, if my kid were to disappear to California with a drugged-out nut, you wouldn't even tell me she was missing?" The president smiled with just a hint of condescension. "That's right," he said.

Watch what you say about judges dept.: former Illinois judge Gordon Maag has dropped the $110 million defamation lawsuit he had filed against the U.S. Chamber of Commerce and other defendants over campaign flyers he claimed were false and unfair. An appeals court in November upheld a lower court's dismissal of the suit, and the Illinois Supreme Court declined to revive it. (Ann Knef, "Gordon Maag drops $110 million defamation suit", Madison County Record, Apr. 12). Earlier: Dec. 23, 2004; Feb. 6 and Nov. 6, 2006.

Peter Lattman at WSJ law blog (Apr. 10) discusses political maneuvering in the two early-Presidential-deciding states. It turns out that both states have (in the persons of Bill Shaheen and Jerry Crawford, respectively) Democratic kingmakers who happen to be trial lawyers. Not that this makes them so different from other states from coast to coast....

Notwithstanding some characterizations by more disingenuous opponents, reformers don't oppose litigation and criminalization for the sake of opposing litigation and criminalization. Litigation and the tort system can play an important role in resolving disputes. Our objection is that the litigation system in the United States cuts too wide a swath, with too many issues under the litigation umbrella that courts are poorly placed to resolve, with inefficient and counterproductive results.

It is certainly possible for the system to tilt too far the other way. Witness Iran, where it is a defense against a charge of murder if "the victim was morally corrupt"—even if the killer is mistaken about the victim's behavior. This being Iran, "morally corrupt" includes walking in public with one's fiance, and permissible killings include stonings and sitting on a victim's chest in a pond until she drowns. (Nazila Fathi, "Iran Exonerates Six Who Killed in Islam’s Name", New York Times, Apr. 19] In the United States, at least, the only penalty a vigilante can legally impose with impunity on someone he or she mistakenly thinks is "morally corrupt" is millions of dollars of legal fees.

WashingtonPost.com's "Think Tank Town" feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.

This morning's New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness....

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression....

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.

The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son's suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, "After a Suicide, Privacy on Trial", Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho's behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, "School says its options were few despite his troubling behavior", Boston Globe, Apr. 19; Ribstein.

And: How well did privacy laws/policies work? Why, just perfectly:

Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.

“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.

“I do not know why she would not have that information,” she said. “I just know that she did not have it.”

(Shaila Dewan and Marc Santora, "University Says It Wasn’t Involved in Gunman’s Treatment", New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today's Times, recounting her experience with a disturbing student: "It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt." ("The Killer in the Lecture Hall", Apr. 19). The tease-quote from the Times's editors: "Do universities fear lawsuits more than violent students?"

• University of Maine official files emotional-distress suit against students who distributed truthful information about him, says Eugene Volokh [@ eponymous]


• You'd think kids at hospitals have enough woe already without snatching away the chocolate shakes and toy-prize meals that might brighten their day [Dr. Charles via KevinMD]


• Keep your eye on just-being-released documentary A Lawyer Walks Into a Bar, directed by Eric Chaikin who did the excellent Word Wars [more]


• Flying-imams lawsuit continues to generate plenty of controversy [Malkin, NY Sun, Saunders, Smerconish, Zumwalt @ NYT]


• Former ATLA president Roxanne Conlin has named her website SomePeopleJustNeedToBeSued.com; no one seems to have posted online the story of how Iowans gave her the nickname Taxanne;


• UCP has this useful guide to the state of current knowledge about cerebral palsy (via Fumento, who's quite unsparing toward John Edwards on the topic)


• Trial lawyers launch indignant crusade against AOL (more examples) over this bit of innocuous fluff on wacky warning labels;


• Blue-ribbon excuses: woman blames shoplifting on irritable bowel syndrome [AP/NBC6.net]


• Lawyers in Alberta, Canada, challenge as unconstitutional province's limitation on cash for soft-tissue injury in car crashes [CBC]


• Ruling expected later this spring in infringement complaint by meatpacker Hormel against "Spam Arrest" email product [Coleman, Seattle Trademark Lawyer, Jeff Kiger @ Rochester, Minn. Post-Bulletin, documents; see Jul. 9, 2003]


• After teenage admirer of bin Laden flies small plane into Tampa skyscraper, his family sues blaming his Accutane acne medication [five years ago on Overlawyered]

Remember the "Eenie Meenie Minie Mo" case? (Feb. 2003, Jan. 2004, Aug. 2005.) Here's a variation which is almost as ridiculous, if less entertaining, from the Virgin Islands. Bad customer service as a cause of action:

During a layover in Puerto Rico, the passenger approached American’s ticket counter to verify her connecting flight to the Virgin Islands.  The ticket agent supposedly refused to return the passenger’s ticket and told her “to shut up and take a seat” and that she might not be scheduled to travel on any flight that day.

The passenger sued American, alleging claims under Virgin Island territorial law for negligence, breach of an implied contractual duty to ensure that employees “conduct themselves in a professional manner” and discrimination.  The passenger’s claims seemed to focus solely on her alleged emotional distress from being treated rudely; the opinion does not indicate that the agent’s conduct caused the passenger to miss her flight or suffer any other more tangible injury. 

Incidentally, I've heard the pace of life is slower in the Caribbean, but this flight took place in July 1996. The suit was filed two years later -- it looks like just before the statute of limitations expired -- in July 1998. Inexplicably, American Airlines did not move for summary judgment until eight years later, in July 2006; it's not clear what was going on in the interim.

(But judging from one of the plaintiff's previous trips (PDF) through the legal system, it would not be beyond the realm of possibility that she might bear some responsibility for the long delay.)

When the Melard bathroom-components factory closed in Passaic, New Jersey, 112 workers were laid off, and more than 80 filed workers' comp claims alleging that they'd been injured on the job but just hadn't gotten around to reporting it previously. Mass comp filings of this sort are by no means rare following plant closings, at least in some parts of the country. However, the employer, Bath Unlimited -- a subsidiary of Masco that does business as Melard -- sniffed fraud, and decided to fight back. It sued the workers and the law firm that represented them, Ginarte O'Dwyer and Winograd, alleging racketeering:

The company claimed in its 2004 federal lawsuit that the Ginarte law firm and attorney [Michael] Policastro encouraged workers angry at being fired to file claims, most of which were identical except for employees' personal information. According to the suit, the law firm directed workers to provide false information to doctors, and "virtually all" of the employees examined by physicians for Bath had no disabilities or none attributable to the company, the complaint charged.

The 84 worker-defendants did not make an appearance to contest the charges, and last month a federal judge signed a default judgment against them which leaves them personally on the hook for at least $2.26 million. (Greg Saitz, "$2.26M fraud judgment against workers shakes labor landscape", Newark Star-Ledger, Mar. 21; "Workers penalty to be reviewed", Mar. 30; John Petrick, "Workers must pay 'compensation' after losing claims suit", Bergen Record, Mar. 25; Workers Comp Insider, Mar. 21 and Mar. 30).

Not surprisingly, the ruling has sent shock waves through the workers' compensation and labor bar. Some of these lawyers argue as if granting employers any right at all to pursue fraud sanctions will impermissibly chill legitimate claims; presumably they imagine that the right to sue should forever be left a one-way affair. Others not unreasonably take exception to the severity of federal racketeering law's treble-damage remedy (although the default "progressive" position, or so it seems, is otherwise to defend that same treble-damage remedy). Finally, and most cogently, they have pointed to the intrinsic harshness of the default judgment as a procedural device, which in this case has laid heavy burdens on unsophisticated immigrant workers, some of whom might plausibly have advanced the merits of their individual comp claims even if the bulk of the other 80-plus cases should be shown to be bogus.

But what of the law firm of Ginarte O'Dwyer and Winograd, which was at the center of the fraud scheme, if a fraud scheme there was? Well, this is the piquant part: after denying the allegations in court papers and trying unsuccessfully to get the federal case dismissed, the law firm settled separately with Bath/Masco/Melard on undisclosed terms. That protected its own interests, but left its former clients ... well, "twisting in the wind" may not be too strong a way of putting it. The large law firm of Lowenstein Sandler has now stepped forward, acting on what it says is a pro bono basis, to attempt to get the default judgment against the workers overturned. (Greg Saitz, "Defending factory workers", Newark Star-Ledger, Apr. 11).

"In the wake of Monday's horrific shootings at Virginia Tech, video game scourge Jack Thompson went on Fox News and argued that violent video games were probably to blame. ... he went on TV to make the claims before anyone really knew anything about the shooter or his reason for doing what he did." (Daniel Terdiman, Gaming Blog, Apr. 17; video clip; Brian Crecente, "Dissecting Jack's Lies", Kotaku, Apr. 17). More: Mike Musgrove, Post I.T., Washington Post.com; Geek.com; Palgn.com.au (Australian); Wired.com Game/Life blog (TV's "Dr. Phil" takes same line).

"She said she notified authorities about Cho, but said she was told that there would be too many legal hurdles to intervene." -- Lucinda Roy, a writing professor who'd noticed the disturbed personality of the Virginia Tech killer-to-be and tried to take an interest in his case, quoted in an ABC News report. (Ned Potter, David Schoetz, Richard Esposito, Pierre Thomas, and staff, "Killer's Note: You Caused Me To Do This", Apr. 17). More: Apr. 19.

We don't generally endorse litigation as a solution to problems here at Overlawyered, but here's one that just might be justified:

A business owner is suing an Anaheim man and his lawyer for filing at least 123 lawsuits that allege disabled-access law violations, saying the practice is "an effort to extort a quick and dirty settlement."

In a lawsuit filed last week in Orange County Superior Court, Huy Dinh accuses David Gunther and Morse Mehrban of filing "frivolous lawsuits" to extort money from small businesses. Dinh, is suing alleging malicious prosecution, fraud and abuse of process, and seeks punitive damages.

Dinh was sued last year by the pair, who alleged a work station at his business was too high for disabled persons. A jury sided with Dinh, according to the lawsuit.

We've covered the exploits of the Gunther/Mehrban racket before: Dec. 1, 2006 and Dec. 7, 2006. And more of Mehrban's activities: Nov. 2002, Mar. 2004, July 2004.

Given Walter's mention of the EEOC's new attempt to solve America's chronic shortage of employment litigation, this covery story from Business Week is timely. It surveys the state of employment litigation in the U.S., describing how risky it is for companies to fire employees, and the six figure price tag associated with the lawsuits that often result. The article discusses the growing trend in suing over "retaliation" claims:

As it happens, the judge in Mody's case tossed out his discrimination claims. But the retaliation allegation did go to the jury—a development that is increasingly blindsiding businesses. Plaintiffs are winning large sums not because a company discriminated against them, but because the company retaliated when they complained about the unproven mistreatment.

The rules surrounding retaliation may sound crazy, but they are one of the big reasons why the fear of firing is so prevalent. Retaliation suits are a hot growth area in employment law. In 2005 and 2006, retaliation claims represented 30% of all charges individuals filed with the Equal Employment Opportunity Commission, a required first step before most discrimination cases can go to federal court. That's up from about 20% just 10 years ago. "Even if there isn't a good discrimination claim, the employee has a second bite at the apple," notes Martin W. Aron of defense firm Edwards Angell Palmer & Dodge in Short Hills, N.J.

Back in November we noted Sid Schwab's account at SurgeonsBlog of being sued (first, second, third parts). A number of other medical blogs have also lately run first-person accounts of what it's like to get dragged into a malpractice suit. Examples:

• Charity Doc at Fingers and Tubes in Every Orifice, Nov. 15, Nov. 20: This is suit #9, but "the bare-boned fact of the matter is that each case is a new wound that tears at your heart, leave just as bad a scar on your psyche, while re-opening the gut wrenching emotions of the old ones. As your name is dragged through the mud over and over, you begin to re-question your dedication and love for medicine, just as you have during the previous times." A few weeks back, by the way, we noted a priceless anecdote by Charity Doc about the time a personal injury lawyer came into his office as a patient unaware that he'd previously sued the doctor;


• Musings of a Dinosaur, Nov. 20: among the few who can laugh at the experience;


• Examining Room of Dr. Charles, Nov. 17: "The Trial Lawyers Association is changing its name to the American Association for Justice. George Orwell is smiling somewhere, the skies are getting clearer every day, and no child is being left behind. A doctor acquaintance of mine just got destroyed with a $20,000,000 jury award in a bogus malpractice case."


• Pediatrician "Flea", Jun. 8, Jul. 12, Jul. 13, Oct. 22, and miscellaneous posts: two suits in all, "litany of abuse...heaped on me", deposition stage fright.

P.S. Two more, from Scalpel or Sword, which however carries a disclaimer saying that its stories are fictionalized composites: Dec. 2 (shotgun filing; mom who kicked son out of house sues after his suicide), Dec. 4 (doc feels guilty over genuine error, but suit is later dropped).

As a remedy for being sued wrongly or overzealously, malicious prosecution actions are traditionally extremely hard to win. However, should a court happen to allow a counterclaim for emotional distress, watch out -- we've got a "thin skull plaintiff". (Recording Industry Versus the People, Mar. 27).

Despite the disbarment of its 78-year-old namesake over a long and colorful catalogue of misdeeds, the Kenneth Heller Law Office on lower Broadway in Manhattan has not closed its doors, according to the New York Law Journal. And where exactly are the elusive 47 boxes of litigation files that Heller is refusing to hand over to a widow-client until he gets paid? (Mark Fass, "Sheriff's Raid Can't Pry Client Files From Disbarred Lawyer's Grip", New York Law Journal, Mar. 28). More: Apr. 24.

Comedian Will Ferrell, on Saturday Night Live, impersonates dog-suing lawyer Wade Blasingame (some tasteless content):

Per the NLJ, it's employers' lucky day:

The federal government has launched an initiative aimed at cracking down on discriminatory hiring practices in the workplace -- a program that could land unsuspecting employers in court, employment attorneys are warning....

Specifically, the EEOC will focus on hiring decisions that are based on names, arrest and conviction records, employment and personality tests and credit scores -- all of which may disparately impact people of color....

Many states have laws that restrict employers from asking about or considering criminal records when hiring. The EEOC holds that if an employer denies a job to an applicant because he or she has a criminal record, it could be considered discrimination if the person is a minority.

For more on efforts to keep employers from taking applicants' criminal records into account, see Feb. 13 and links from there (cross-posted from Point of Law).

"Arizona regulators have ordered a Seattle-based online home price estimator to stop doing business in the state." Zillow.com has won wide popularity by applying algorithms to publicly available data to come with rough estimates of the value of existing homes, which it makes available for free through its site. The Arizona Board of Appraisal says that Zillow should not be dispensing such information without an appraiser's license. ("Arizona bars online home price estimator", AP/Tucson Citizen, Apr. 15)(& Coyote Blog).

Judge Denise Page Hood has issued an order to show cause why the O'Quinn law firm (many entries; also POL Jul. 15, 2005, POL Jul. 10, and POL Aug. 3) should not be held in contempt for improperly withholding breast implant settlement money from their clients. There is no press coverage of this brewing scandal.

There has, however, been plenty of press coverage of one of O'Quinn's other clients, Anna Nicole Smith's mother. In that circus, O'Quinn finds himself a defendant in a civil defamation suit brought by Smith's, er, widower, attorney Howard K. Stern, for going on national television and accusing Stern of murdering Smith. [AP/ABC News] The fact of having this client gave cause TMZ.com to dig up some of the more obvious scandals in O'Quinn's past, though they still missed the more recent ones covered by Point of Law.

Elsewhere in O'Quinn news: the firm settled its $1 billion fen-phen verdict (Apr. 28, 2004) for an unknown amount on the eve of appeal as part of a global settlement of O'Quinn's caseload of fen-phen cases. (Brenda Sapino Jeffreys, "$1 Billion Fen-Phen Case Settles Before Appellate Oral Arguments", Texas Lawyer, Apr. 16). The verdict was tainted because the plaintiffs blamed fen-phen for Cynthia Cappel-Coffey's PPH, but Ms. Cappel-Coffey had been taking four other diet drugs since fen-phen had been pulled from the market that had the known risk of causing PPH. Yet that evidence was excluded from the jury, though the Texas Lawyer coverage barely touches upon this outrage. The state court in judicial hellhole Beaumont also improperly applied Texas caps on punitive damages.

Complete text of the breast implant order after the jump, if you don't want to read the order in PDF format.

As Ted reported Mar. 23, a Ninth Circuit panel lately took an indulgent line toward notorious ADA mass filer Jarek Molski, reversing a ruling by Judge Tevrizian of the district court. (More on that ruling from Law.com). "Army Lawyer" in the comments at Patterico (via Coyote) passes along this classic bit of Molskiana (from the earlier round of litigation before federal judge Rafeedie):

Although this complaint appears credible standing alone, its validity is undermined when viewed alongside Molski’s other complaints. In Molski v. Casa De Fruta, L.P., Case No. C04-1981 (N.D. Cal. 2004), Molski alleges that he sustained nearly identical injuries on the exact same day, May 20, 2003. In Casa de Fruta, Molski alleges that he and significant other, Brygida Molski, patronized Casa de Fruta for the purpose of wine tasting....

It would be highly unusual — to say the least — for anyone to sustain two injuries, let alone three, in a single day, each of which necessitated a separate federal lawsuit. But in Molski’s case, May 20, 2003, was simply business as usual. Molski filed 13 separate complaints for essentially identical injuries sustained between May 19, 2003 and May 23, 2003. The Court simply does not believe that Molski suffered 13 nearly identical injuries, generally to the same part of his body, in the course of performing the same activity, over a five-day period. This is to say nothing of the hundreds of other lawsuits Molski has filed over the last four years, many of which make nearly identical allegations.

In West Palm Beach, Fla., a jury has held a nursing home liable for resuscitating a 92-year-old Alzheimer's patient who had signed an advance directive indicating that she did not want to be kept alive by artificial means. And although an obstacle to even an otherwise well-founded "wrongful resuscitation" case might be the question of damages, the jury in this case awarded the estate of Madeline Neumann $150,000. (Rebecca Riddick, "Fla. Nursing Home Faulted for Ignoring End-of-Life Wishes", Daily Business Review, Mar. 20; CourtTV coverage). An attorney for the physician defendant (who, unlike the nursing home, was found not liable in the case) said that despite do-not-resuscitate orders, medical personnel often make a judgment that a patient could potentially benefit from rescue efforts, and that had they failed to make such an effort in Mrs. Neumann's case they might have faced legal risk: "If you call 911, you get sued," he says. "If you don't call, you get sued." (Laura Parker, "In a crisis, do-not-revive requests don't always work", USA Today, Dec. 19, 2006).

Something you'd think he'd want to address/get out of the way/rethink/apologize for sooner rather than later, since it calls into question his judgment in a whole range of different ways (Jacob Sullum, Reason "Hit and Run", Apr. 12; "The Right to Hunt in Montana", Reason/syndicated, Apr. 11). Earlier: Jun. 21 and Jun. 28, 2000, etc.

On Nov. 3, 2005, I wrote:

One can understand why Wal-Mart is upset that a former executive, Tom Coughlin, allegedly swiped a half-million dollars, and wants to stop paying him in addition to referring the matter to federal prosecutors. But one doesn't understand why Wal-Mart, in an effort to recover a fairly small sum, is arguing to the court that it should disregard the mutual waiver and release that Coughlin signed with Wal-Mart when he left the job. Surely the corporation would be better off on the whole with a legal rule that strictly enforces releases than one that judges the validity of a release on a case-by-case basis.

North Carolina attorney general Roy Cooper deserves credit for making it clear to all that the players were innocent and not merely unprosecutable (Stuart Taylor, Jr., "An unbelievable day", Newsweek, Apr. 12 (web-only)). Cooper may not deserve so much credit for sparing the false accuser any public legal consequences (John Podhoretz, "Let the liar be named and shamed", New York Post, Apr. 12). Durham DA Mike Nifong is in richly deserved trouble, of course but it would be wrong to let the press off the hook for its many sins in covering the case (Howard Kurtz, "Media Miscarriage", Washington Post, Apr. 12; K.C. Johnson, Apr. 12 (on the New York Times' reporting; check other entries at his blog for the sins of the Durham Herald-Sun, Newsday, etc.)). And let's not forget the Duke faculty, or at least large portions of it (Vince Carroll, Rocky Mountain News, Apr. 12).

See these links for our extensive earlier coverage of the case.

One of the common minor medical malpractice "tort reforms" that have been proposed in recent years is the "apology law." That's the law which permits doctors to apologize to patients for bad outcomes without having those apologies thrown back in their face at trial. (Reasonable, if relatively trivial.)Rhode Island is now looking at joining the 15 or so states that have enacted such apology laws, and over at the New York Personal Injury Law Blog and crossposted at Bizarro-Overlawyered, plaintiff's attorney Eric Turkewitz endorses the bill, saying:

I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

In any case, Turkewitz mocks an insurance company which advises doctors who apologize -- even if those apologies are protected -- to apologize for the outcome but not to admit error, claiming that this sensible advice "encourages more of the same thing that has gotten docs into trouble in the past." But Turkewitz doesn't mention that even this extremely modest reform is too much for some trial lawyers. As quoted in the same article he cites:

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

"I like to call it the `I'm-sorry-I-killed-your-mother'" bill, Minicucci said. "If a doctor comes out and says something like that, he shouldn't be able to immunize himself against statements like that by couching it in an apology."

Speaking of apologizing (and updating an earlier story), I'm pretty sure that Mike Nifong's apology to the Duke lacrosse players ("To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.") is not going to cut it.

Under Tennessee v. Lane, the ADA does not apply to states unless the states waive their sovereign immunity and permit the federal cases to proceed in state court. Attorney General Greg Abbott of Texas (coincidentally enough wheelchair-bound himself), has exercised that sovereign immunity in ADA suits, and there is a movement for the legislature to repeal the immunity. I think the voters of a state can rationally decide whether they want to allow the disabled residents of the state to be able to sue the state and its agencies for alleged discrimination against the disabled; it's a conscious decision whether the value of that access is worth the expense to taxpayers. (Of course, the ADA is poorly drafted enough that the consequences can be silly from time to time, but that's a different issue.)

But it doesn't seem sporting in arguing for the change to claim that such a waiver will have "no fiscal impact" on the state, as Dennis Borel and Bruce Todd argue in an Austin American-Statesman op-ed seeking a waiver in Texas. Even one suit would cost the state money that it could spend on disciplining lawyers or speeding up the licensing of doctors wishing to practice in Texas. If there's no money to be had from state coffers by making suits available, why the need to make suits available? One would have more respect for proponents if they were forthright in telling voters how much in taxpayer dollars they want to spend annually to achieve their goals. And since Texas does have sovereign immunity from the ADA, it is under no obligation to make a full waiver: it could choose to create some rights to suit, but not others, and thus avoid the worst abuses of the Act, a possibility that does not even seem to be under consideration.

Separately in the implausible claims department: a page on the DOJ site, much repeated elsewhere, claims that there have been only 650 ADA suits in five years. Given that there are filing mills that come close to hitting that total by themselves, this seems extraordinarily unlikely.

JL Kirk & Associates has its attorneys, King & Ballow, send a scare letter to a blogger over an account of their sales tactics, and feels the wrath of the blogosphere. [Bill Hobbs; Rob Huddleston (both via Bainbridge); many more links in those posts]

Update: I see Dave Nieporent's boss is now in the fray on behalf of the Media Bloggers' Association.

Hospital X was grossly -- if not criminally -- negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don't let them try to claim they didn't foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he "became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!" Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client's operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That's the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas's complaint was that since he couldn't find anybody to supervise him, the hospital's condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient's life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn't possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

Obituaries detail the life and fast times of Mark Langford, the British entrepreneur who founded The Accident Group and rode it to a fortune advertising for "no-win, no-fee" injury claimants, becoming closely identified with the U.K.'s emergent U.S.-style "compensation culture", before the group collapsed in ignominy four years ago. When his company found itself unable to pay its bills, Langford famously sacked 2,500 employees via text message; "While thousands were left without a penny following TAG's collapse, Langford and his wife, a fellow director of the firm, were not. As staff began ransacking the company's offices in Manchester, the couple headed for the Spanish sun." ("Mark Langford", The Telegraph, Apr. 11; David Brown & Jon Clarke, "Fugitive boss who sacked his staff by text is killed in Costa car crash", Times Online, Apr. 11).

Perhaps the most successful instigator of injury litigation in his nation's history, Langford appeared not to have fully internalized in his own conduct the tort system's norms about avoidance of needlessly unsafe conduct:

He was at the wheel of his red Ferrari 355 F1 Spider three years ago [i.e., circa 2000] when he hit a 73-year-old war veteran who was crossing the road. The impact that killed Bill Thornley hurled him 15ft into the air and ripped his clothes off, a jury was told at Manchester crown court. However, they cleared Langford of causing death by dangerous driving and convicted him of the lesser offence of careless driving. He was fined £1,000 but retained his driving licence.

Langford, who criticised the dead man in court for trying to cross a busy, wet road in twilight, insisted he was abiding by the 40mph limit, contradicting witnesses who claimed he was doing 55mph. Some jury members, unaware that he had a conviction for drink-driving, covered their faces with their hands on learning he had served a 22-month ban and recovered his licence only six months before the fatal crash.

("Profile: Mark Langford", Times Online, Jun. 1, 2003). Our earlier coverage appeared Aug. 5, 2003.

...resulted in a pro se suit from a black customer alleging that the airing of the popular country song constituted racial discrimination. The Fifth Circuit upheld a lower court's decision to dismiss the suit against the Wichita, Kansas restaurant. (Brackens v. Texas Roadhouse in Wichita (PDF); Mississippi Law Blog, Feb. 6).

Incidentally, even before posting this item, this website already provides one of the very few current search hits on "Redneck Woman" + "Fifth Circuit".

We've previously reported on this case and the underlying Hollins v. Jordan $30 million trial verdict (in 2004 on Nov. 20, Oct. 11, and Aug. 31) blaming an obstetrician and hospital for microcephaly in a four-pound, five-ounce birth. The case is scheduled to be heard by the Ohio Supreme Court May 23, and the more recent briefing is on line; the Dr. Jordan merits brief is especially interesting. Of note, and not previously mentioned:

• Plaintiffs attorney Geoffrey Fieger has already twice asked the entire Ohio Supreme Court to recuse itself.


• Plaintiffs are seeking $50 million in prejudgment interest.


• The claim that the caesarean was delayed is entirely bogus; plaintiffs' experts deliberately confused the "emergency" (i.e., non-scheduled) caesarean with a "crash" caesarean.


• Plaintiffs sandbagged the damages claim by claiming before trial they would only seek $4 million, and then changing the estimates on the stand by making hypothetical assumptions not supported by any expert evidence.


• Fieger's opening argument regularly made references to evidence excluded in limine.


• Fieger had an anesthesiologist opine on neurological matters.


• Fieger's prejudicial conduct at trial, including race-, religion-, and class-baiting, has to be read to be believed. How there wasn't a mistrial or a revocation of pro hac vice status is jaw-dropping.


• Counsel of record for two of the co-defendants is Drug and Device Law co-blogger Mark Herrmann.

ABC News is reporting that all charges have been dropped in the Duke Lacrosse case. So how long before the civil suits are filed by the exonerated players? (I'm betting the complaints have already been drafted.) And how much will taxpayers be on the hook for?

John Edward is the quack who made a television career claiming to channel the dead. John Edwards is the trial lawyer presidential candidate who didn't go quite that far when delivering a closing argument, restricting himself merely to a channeling a mute victim of cerebral palsy that he successfully blamed on a doctor. As the New York Times reported:

"She speaks to you through me," the lawyer went on in his closing argument. "And I have to tell you right now — I didn't plan to talk about this — right now I feel her. I feel her presence. She's inside me, and she's talking to you."

We've had lots of coverage of Edwards's trial career: Jan. 12; Oct. 20, 2005; Aug. 17, 2004; Jul. 28, 2004; Feb. 2, 2004. And we've noted others' comments, too: Jan. 5; Jul. 16, 2004; Feb. 26, 2004; Jan. 31, 2004; Sep. 16, 2003.

Last month, Micheal Ray Richardson, the coach of the Continental Basketball Association's Albany Patroons, lost his job after reports in the local paper, the Albany Times Union, that he had allegedly made anti-Semitic and anti-gay comments. Now Richardson, according to reports, is planning to file a lawsuit against the newspaper this week for $5 million for defamation for these news reports. Obviously, if the newspaper report was false, Richardson would have a strong case. But I think he may want to work on his arguments just a little bit:

Richardson, a former Knicks first-round draft pick, did not deny that he uttered the gay slur at a group of fans that were harassing him, but said that it was not meant as a homophobic slur.

"Micheal recalls saying 'Jewish lawyer,' not 'Jew,' " his lawyer, John Aretakis, told The Post.

"This is stupid political correctness gone mad," said Aretakis, who told The Post that representatives from the Times Union asked him, "Would an apology make this lawsuit go away?"

"The answer is no," Aretakis said.

Last month, Mohammed A. Hussain went to the University of Maryland Medical Center in Baltimore for a medical procedure. Before it began, he wanted to pray; he alleges he was mistreated by a hospital security guard, who "proceeded to manhandle him, yell racial epithets at him, push him down the corridor and order him to exit the hospital."

So, on Friday Hussain filed a $30 million lawsuit, alleging assault, battery and the ubiquitous emotional distress. But (you guessed) it:

Hussain's attorney, David Ellin, said his client sued the hospital because he did not think executives were taking his case seriously enough.

"He felt the only way to get their attention and make any changes was to really put their feet to the fire and file a lawsuit," Ellin said.

Ellin said Hussain's aim with the suit is not to win compensation but to raise awareness about Islam and religious prejudices.

"This is really done to try to educate people on the religion of Islam and make people more tolerant and just educate them on different religious backgrounds," Ellin said.

• Chief exec of 1-800-ATTORNEY ended up needing one himself, pleading guilty to securities fraud charge [NYLJ, Lattman]


• Cost of providing liability insurance for Pennsylvania prison doctor greatly exceeds his pay [Shamokin, Pa. News-Item, Dr. Robert Hynick, Northumberland County Prison]


• "Scottish sociopaths sipping their single malt Glenlivet" -- yep, Jack Thompson is suing Grand Theft Auto developers again [GameSpot]


• Anna Nicole Smith fee-ing frenzy: $4,265 for Bahamas cellphone roaming part of "fair and reasonable" lawyer's bill [TMZ]


• Working in a prosecutors' office? More about nailing 'em than making sure justice was done [Dean Barnett via MedPundit]


• Don't forget imprisoned Egyptian blogger Abdelkareem Nabil Soliman [Palmer @ NRO, Doherty @ Reason]


• "Pretexting" to fish out adversaries' secrets: yes, lawyers do it too, now that you mention it [Elefant]


• Which is more dangerous to kids, a house with a swimming pool or a house with a gun? Think carefully before answering [Stossel]


• For shame: Supreme Court of Canada gives go-ahead for British Columbia's retroactive tobacco recoupment suit [Ottawa Citizen, CBC, Bader; earlier]


• Anti-biotech activists score, farmers squirm as judge halts sale of Roundup Ready alfalfa [Farmer-Stockman, Feedstuffs, Truth about Trade & Technology](more: Coyote)


• Soap opera actor sues after ABC writes his character out of the script [five years ago on Overlawyered]

Defamation-suit Hall of Fame: a New Zealand prisoner serving a life sentence for the notoriously brutal murder of a 17-year-old girl has won cash compensation from newspapers which described him as a rapist. "Andrew Ronald MacMillan was granted legal aid - a government- funded scheme which allows people who cannot afford legal representation to get a lawyer - to sue Fairfax Media, publishers of New Zealand newspapers The Press and Dominion Post, for defamation and punitive damages." The victim, whose body was discovered nearly naked, had suffered violence in intimate places, but authorities never charged MacMillan with rape in the case. ("Murderer gets compensation from paper over rape allegation", DPA/MonstersAndCritics.com, Apr. 10). Two and a half years ago MacMillan won $1200 for hurt feelings and humiliation because the Corrections Department had not shown him the text of a letter accusing him of misbehavior while on prison furlough. (Bridget Carter, "'Hurt feelings' win killer $1200 compensation", New Zealand Herald, Aug. 23, 2004).

What were you doing in early 1984? I was finishing up middle school, and I'm sure there were some people there with whom I did not get along. What I didn't realize was that it wasn't too late for me to get even with them... by finding someone with much deeper pockets than them, and filing a lawsuit.

In 1984, Fatima Bowles was in kindergarten in Brooklyn, when a boy named "Frank A" threw a block at her from across the room. It hit her in the eye, and from the sound of things, she was legitimately injured: she had to have surgery for a lacerated cornea. Of course, it's unlikely that kindergartner Frank A had any money, which is probably why Bowles sued... the city of New York.

The complaint? That Bowles' kindergarten teacher was negligent. She had left the room for a moment to check up on two students who had gone to the bathroom, and a few seconds after she did so, the evil Frank A launched the block. Ms. Zimmerman should have known that because Frank had previously pushed Bowles on the playground and pulled her hair, there was a danger he would injure her.

"The city was on notice about his belligerent behavior and allowed the teacher to go out, leaving the kids alone," Weinbaum said.

So why are we talking about this now? Apparently Bowles (well, Bowles' mother; Bowles was only 7) actually filed the lawsuit back in 1985, but her lawyers died somewhere along the way, and nobody noticed.

Although the delay is highly unusual, Bowles said she and her family trusted their lawyers and never asked why the case was moving so slowly.

You know, I complain about the slow pace of justice, but I think 23 years may actually be a record. (In all seriousness, note that however much work was done on the case back in the 1980s -- probably not much, since Bowles wasn't deposed until 2006 -- it has taken at least four years since Weinbaum started working on it again, and all we've established is that the case won't be dismissed before trial. (Given that the city doesn't seem to be able to produce Ms. Zimmerman, I suspect they'll be settling the case shortly -- but there are no guarantees, and this could drag on even longer.))

For better or worse, John Edwards isn't as special this time around:

For years Edwards has relied on the support of his fellow trial lawyers' deep pockets to help get him elected -- first to the Senate and then three years ago, when he made a run at the White House and then became running mate to Sen. John Kerry, D-Mass., who won the Democratic nomination. But as Edwards mounts his second presidential bid, he has struggled to attract plaintiffs lawyers beyond his stable of longtime donors, just as other Democratic candidates, such as Sens. Hillary Clinton from New York, Barack Obama from Illinois, and Joseph Biden Jr. from Delaware, have been actively wooing the plaintiffs bar. ...

Many of the trial lawyers who supported the Kerry-Edwards ticket in 2004 have chosen to throw their lot in with Obama or are keeping their options open by donating to multiple candidates. The fracturing of the trial-lawyer constituency could have dramatic effects on the total dollars Edwards will be able to raise. ...

Also cited as hurting Edwards with some past givers: the steps he took to moderate his image on litigation reform during the 2004 campaign, including his endorsement of pre-screening of merit in medical malpractice cases. Even Sen. Biden is making inroads:

Biden has long been seen as a supporter of the trial lawyer community on the Senate Judiciary Committee, where he has opposed legal-liability proposals and bills that would limit claims against health-care providers. No candidate is more visibly tied to the trial bar than Edwards. But Clinton and Biden, who also headlined a national trial lawyer convention in Miami Beach in February, have both said they're opposed to caps on punitive damage awards.

Despite Obama's silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes.

(Anna Palmer, Legal Times, Apr. 9).

John Edwards may not be the only plaintiff's attorney in the White House race:

Mr. Thompson [Sen. Fred Thompson, R-Tenn., much buzzed about as a late-entering Republican possibility] has also been criticized for failing to back some comprehensive tort-reform bills because of his background as a trial lawyer. Here he insists his stance was based on grounds of federalism. "I'm consistent. I address Federalist Society meetings," he says, noting that more issues should be left to the states. For example, he cast the lonely "nay" in 99-1 votes against a national 0.8% blood alcohol level for drivers, a federal law banning guns in schools, and a measure limiting the tort liability of Good Samaritans. "Washington overreaches, and by doing so ends up not doing well the basics people really care about." Think Katrina and Walter Reed.

On Sen. Thompson's behalf, it can be said that he did co-sponsor the Protection of Lawful Commerce in Arms Act, which was enacted into law after he left the Senate. Thus he presumably recognizes that in some situations, federal action can be necessary and proper to prevent a few state courts from imposing their views on the unwilling citizens of distant states. One hopes Thompson also goes so far as to realize that federal curbs on state-court litigation in those circumstances do not necessarily infringe on proper precepts of federalism and decentralization, but in fact can work in defense of them, by protecting the right to self-government of sister states and their citizens. The question is whether he has gone on to consider that quite a few other federal interventions into state-court litigation, in such areas as class actions, product liability and punitive damages, can be defended on very similar grounds (namely, that they are needed to restrain state courts from exporting their legal doctrines to other states) and thus are entirely consistent with "good federalist" precepts.

• Dontdatehimgirl.com lawsuit suffers another setback. A court ruled today that the Pittsburgh-based lawyer-plaintiff can't sue the Florida-based website in Pennsylvania. (Howard Bashman). The suit against the website is frivolous in any case; it is well-established that Section 230 of the Communications Decency Act immunizes the website. (The suit against the posters, on the other hand, is a legitimate defamation claim.) Previously covered on Overlawyered: Jul. 2006, Jan. 2007.

• In Easton, Pennsylvania, a police officer accidentally shoots and kills another police officer after cleaning his gun; now the widow is filing a $20 million wrongful death lawsuit against the city, the mayor, city administrator, the police chief, the shooter, the head of the SWAT team of which the players were both members, a fellow officer who was standing nearby, and the retired former head of the SWAT team. I'm sure one of them has the money.

• Philadelphia city councilwoman -- and some tourism officials -- wants to require licensing of city tour guides, including history tests, so that they don't provide inaccurate history to tourists.

• In 1999, a 19-year old college student named Richard Beers was killed while working construction over the summer. He had stopped the backhoe he was using on a hill, left the motor running, and walked behind it. It rolled down and ran him over. So his family blamed... Caterpillar, which had manufactured the backhoe, and sued for $25 million plus punitive damages. Last week, an Ohio jury found Caterpillar not liable -- and it only took eight years (six years after the suit was filed) to resolve the matter.

Another Jim Shapiro classic (Mar. 7, Feb. 6, etc.). Are his lip movements really not lining up with the sound track, or is this some artifact of internet video?

In August 2002, the Greens, a black couple, were shopping in a local department store in Kansas City. They allege that a sales clerk named Linda McCrary refused to help them purchase several items, forcing them to wait for another clerk (who did assist them in completing the $500 purchase). They then allege that, while waiting for that helpful clerk to sell them a watch, they heard McCrary curse at them, using a racial slur, and then stalk off. The helpful clerk immediately apologized, as did a sales manager. But nonetheless, this incident was so traumatic for the couple -- including the husband, who was a police officer -- that they not only felt too distressed to finish buying the watch, but they felt the need to return the items they had already purchased. A day or two later, the store manager called the Greens, apologized again, told them that McCrary had been fired, and offered them a 20% discount off their purchase. After they rejected his offer, he sent them a letter of apology and again offered a discount.

Now, assuming the Greens are telling the truth -- there seems to be substantial evidence supporting their version of events -- McCrary deserves to be condemned wholeheartedly, and the Greens were entitled to an apology (which they got). But that, of course, wouldn't allow them to cash in on this incident. So, instead the couple waited two years, and then filed a lawsuit demanding $5.5 million, claiming that the store had illegally violated their rights to make contracts because they were black.

The lower court granted summary judgment to the store, noting that other clerks were willing to help the Greens and they could have completed their purchase. But last week, an appeals court reversed that ruling, holding that a jury could find that the Greens were prevented from completing their purchase, and the store was negligent in hiring/not firing McCrary sooner. Perhaps the most damaging part of the court's opinion was when it noted that the store, as employer, could be liable for failure to investigate McCrary before hiring her for a routine retail sales job:

Dillard's also apparently did not inquire into unexplained anomalies in McCrary's employment history when she applied for a job at its store. After being purportedly "downsized," McCrary moved from a relatively high paying job at AT&T to an unskilled position at Kmart. Kmart employed her for only two months and laid her off in the month of December when the holiday shopping season would presumably increase Kmart's demand for labor.

Amusing side note: the Greens originally filed their complaint on August 9, 2004; a week later they filed an amended complaint. Aside from correcting a few typographical errors, the only change they made from the original to the amended complaint was to correct their demand for punitive damages from "$500,000" to "$5,000,000." I guess that was about the money.

It might only upset them, or perhaps upset other lawyers:

The judge in a 2004 federal class action lawsuit over fuel gauge damage caused by tainted gasoline made at Shell-Motiva refinery in Norco has sealed records on how he divided $6.8 million in legal fees among 79 lawyers in the case.

U.S. District Judge Ivan Lemelle has ordered each lawyer, on pain of being sanctioned, not to reveal how much they were paid.

Lemelle's late January decision to keep the information under wraps has drawn criticism from some of the lawyers and has attracted the attention of Loyola Law School ethics professor Dane Ciolino.

Ciolino says the situation violates the right of the lawyers and the public to have access to court records. Additionally, he said, it flies in the face of a Louisiana attorney ethics rule that says a client is entitled to know how his lawyer shares fees with other lawyers.

(Susan Finch, "Judge seals records on legal fees in suit", New Orleans Times-Picayune, Apr. 6)(& welcome Robert Ambrogi readers).

Update: And now it's reported that the judge has turned down a motion to unseal the fee records (Susan Finch, "Judge won't unseal fee records", New Orleans Times-Picayune, Apr. 10). Further updates: May 22 (WSJ editorial covers); Jun. 7 (judge unseals records).

• Coca-Cola's sense of humor doesn't extend to other artists' parodies; shuts down movie release over single dream sequence showing Jesus drinking Coke. [Variety via BLT]
• Kevin MD on defensive medicine.

• Slip & fall case: "it would be unreasonable to expect the defendants to constantly clean the floors of their buses" during a snowstorm [McKenzie v. County of Westchester; Turkewitz]
• TV news and dumb lawsuit ideas series (earlier: Sep. 18), American Idol edition: Fox v. Vote for the Worst? [Above the Law]

• Shades of Myspace litigation (Feb. 15 and links therein): phone-chat dating service sued over rape of teenager [On Point]
• Updating Nov. 3 entry: Ninth Circuit vacates and will en banc review ludicrous Reinhardt decision in Smith v. Baldwin [Legal Pad]

Judge writes scathing opinion about attorney; opponent attorney mails opinion to client; losing attorney sues other attorney for defamation. No dice, but even this ludicrous suit does not result in sanctions. [Beck/Herrmann]

Beck and Herrmann miss, however, an especially interesting subplot. Wolk settled the underlying case, Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D. Ga.), on the condition that the order criticizing him be vacated. Did Wolk's client suffer from a reduced settlement so that his attorney could avoid having the order used against him in other litigation? (The discovery violation complained about was apparently a repeat occurrence.) The district court permitted a settlement that vacated the order, but its only reported inquiry into whether Wolk did not suffer from a conflict of interest and was adequately protecting his client's rights was Wolk's representation to the court that the client was alright with the size of the settlement. That begs the question whether the client was fully aware of the conflict of interest; if, as seems to be the case, the N.D. Ga. failed to do so, one really wishes courts would do more to protect fiduciaries of plaintiffs' attorneys before signing off on settlements. 338 F.Supp.2d 1323, 1327 (N.D. Ga. 2004), aff'd in unpublished summary per curiam opinion (11th Cir., Jun. 17, 2005).

We've earlier reported on Mr. Wolk for his lawsuits against commenters at an aviation website that criticized him: Sep. 16-17, 2002. As the Taylor opinion notes, Wolk also threatened to sue the federal judge in that case. He also filed what the Eleventh Circuit called a frivolous mandamus petition.

At the "Life and Times" department of the Southern California public broadcasting station, reporter Val Zavala examines a problem often discussed in this space (May 26,, Apr. 5, Apr. 29, and Dec. 26, 2006, among many others):

This story is about a long-standing soda-pop store in Highland Park, Calif., that was hit with a legal notice telling them that they are selling hazardous products. The owner says that they don't make the product, but that they have informed the public according to the Proposition 65 law. But the law allows them to be sued anyway. Their only choice? Settle or go to court. As Val Zavala reports, some attorneys are making millions abusing Proposition 65.

The ten-minute video has expired, but the station's blog entry about the show has links and discussion (Feb. 28).

An article in the West Virginia Record discusses a survey of physicians complaining about questionable expert witnesses in medical malpractice cases. For some reason, physicians seem to think that experts will say whatever they're paid to say. But the president of the West Virginia Trial Lawyers Association denounces the survey, including the doctors' complaints about experts being paid on contingency:

"And you can't have contingency experts. I abhor that, anyway. There are State Bar rules are [sic] against that."

But how effective do you think those rules are? They didn't stop Nagel Rice and Mazie, a New Jersey plaintiff's law firm, from trying to weasel out of paying its expert witness recently for his work on a med-mal case, leading the expert to sue the firm for his fees. Why did Nagel try to get out of paying? Because, as Nagel admitted in his testimony in that case, they had lost the med-mal lawsuit:

And I said, "And in addition to that, we lost the case. It's cost my firm over $100,000 in out-of-pockets." I said, "So, I want you to consider two things: one, it was your first time on the stand; two, I think your 17 hours is really heavy-handed; and, number three, we took a blood bath in this case. And what I do with experts over the course -- I've been doing this almost 30 years is that where you take a huge loss, experts will virtually always work with you."

Nagel says his firm does not seek discounts from experts on losing verdicts. Rather, expert witnesses who have an ongoing relationship with his firm tend, of their own volition, to increase their bills in the event of a victory and to cut them after a defeat.

Incidentally, perhaps Nagel ought not to have invested $100,000 in the med-mal case in the first place, without doing a little due diligence. One reason that they might have lost was because the plaintiff's claim that she suffered severe back pain and was permanently disabled by her doctor was successfully undermined by the defendants. As explained by the Appellate Division (PDF):

Video surveillance tapes showed Meegan walking, driving, bending over to talk to children, and lifting her daughter's bicycle into the back of a car, all without any difficulty whatsoever.

Linda Gorman of the Independence Institute writes in an email:

I was finally catching up on my reading on Overlawyered.com and came across your Feb. 4 post on the possibility that Amber Taylor had a point when she noted that the IRS might give U.S. parents an incentive to count have a dead baby classified as a live birth.

This assumes that parents can affect the classification on the death certificate. U.S. parents do not typically fill out death certificates. She needs to provide evidence that parents affect classifications in meaningful numbers in the United States before anyone should take this speculation seriously.

The evidence that birthweight registration varies from country to country rests on statistical comparisons of the number of very low birthweight infants recorded. An early paper, which is very short, is here (PDF). These studies have been followed by a number of papers on birth registration in various European countries. At this point, the evidence suggests that what are counted as live births in the U.S. are often considered fetal deaths in other countries. They are thus not included in infant mortality statistics, and OECD has (finally) included a note to this effect in its international comparisons of infant mortality. It wouldn’t be a public policy issue if those who wanted to reduce the amount of privately provided medical care in the United States hadn’t used it as an indicator of the poor performance of the U.S. health care system. If you’d like more references, I’d be happy to provide them.

As we've been noting for a long time (Mar. 24, 2006, etc.), it's increasingly common for parents of kids with disability diagnoses, after deciding that the public schools are not doing a good job of educating their kids, to enroll the kids in private school programs and stick public school taxpayers with the resulting high bill, citing federal disabled-ed law. (Parents of non-disabled offspring, needless to say, do not enjoy legal options of this sort if they believe the public schools are failing their kids.) Now the Supreme Court has accepted for review a case in which, according to the New York Times's account, a former chief executive of Viacom did not even give a public school program a try before enrolling his son in a private school and demanding that New York City pick up much of the resulting bill. The New York Times's account is distinctly unsympathetic toward the parent, and quotes Julie Wright Halbert, legislative counsel for the Council of the Great City Schools, as saying: "Many wealthy, well-educated people are gaming the system in New York City and around the country.” (Joseph Berger, "Fighting Over When Public Should Pay Private Tuition for Disabled", Mar. 21; Amity Shlaes, "After Viacom, Freston Makes Case for Special Ed", Bloomberg, Mar. 16; Mary Ellen Egan, "A Costly Education", Forbes, Apr. 9 (sub)).

Because if your insurer wasn't willing to pay for damages to your car incurred after your family member led police on a high-speed chase, why was it willing to collect the premiums in the first place? (Beth Warren, Atlanta Journal-Constitution, Apr. 6).

A major scandal has erupted in Ontario in recent weeks following reports that some lottery retailers have for years been cheating their customers out of winning tickets, instead cashing in the tickets themselves. Now the law firm of McPhadden, Samac, Merner & Barry has filed a would-be class action lawsuit on behalf of all persons who bought lottery tickets since 1975, charging that the lottery failed to exercise its responsibility to prevent cheating, and demanding C$1.1 billion including C$100 million in punitive damages.

Perhaps the most interesting question raised by the legal action is: assuming a remedy cannot be had against the rogue retailers, what is a suitable remedy against the allegedly negligent lottery authorities? According to CTV, the law firm has proposed to hold a "free lottery", or, perhaps more precisely, a lottery that would compensate for past unfairness by enabling Ontarians to buy a ticket which would be eligible for a payoff above the usual. (Those who could prove they had played the lottery in the past would be entitled to one free ticket.) ("Class-action suit launched against lotto agency", Mar. 28).

Details of the proposed "remedial" lottery are hazy in the CTV account, but a couple of practical difficulties immediately come to mind. Start with the assumption that a "remedial" pot would be fixed at a certain lump sum intended to punish the province for its past negligence -- let's say C$100 million -- and that such a sum greatly exceeds a typical lottery pot. Since there is no upper limit to the number of tickets that purchasers could buy in pursuit of the extra-large pot, the province might in fact wind up making money on its penitential lottery, even taking into account the obligation to dispense a certain number of free single tickets to persons who could bring in the paperwork to show they were past lottery players. Alternatively, assume that the province undertakes to run a one-time penitential lottery with a higher payout than usual -- say, 95 percent rather than the usual 40 or 60 percent or whatever. Again it's possible that by stoking player interest in a much-publicized "good-odds" lottery, the authorities will come out ahead (perhaps having hooked many novices into buying their first lottery tickets).

The practical difficulties if the province is so rash as to promise a lottery with a payout of, say, 110 percent of the money put in, will be left as an exercise to the reader.

At American Thinker, Michael Margolies notes the fiftieth anniversary of "one of Hollywood's most revered, indeed sacrosanct films", but finds the work on calmer viewing to be emotionally manipulative, stacked from first frame to last, and even "dishonest". ("12 Angry Men Turns 50", Mar. 31).

So wrote Boone Circuit Court Senior Judge William Wehr in a motion denying both Stan Chesley's motion to dismiss a suit against him in the Kentucky fen-phen fee scandal. But, with plaintiffs' summary judgment motion also denied, a jury will ultimately decide how much that "more" should be, and whether a fiduciary duty was broken. The same order denied a request by Melbourne Mills to reconsider the finding that a fiduciary duty was broken. Chesley's attorneys state that he will pay back $7 million of his $20 million fee. (Jim Hannah, "Chesley made too much", Cincinnati Enquirer, Apr. 5). Earlier: OL Mar. 26 and links therein. (Cross-posted at Point of Law.)

Great moments in school discipline, Clearwater, Florida, edition:

I don't know if I can possibly do justice to this story. In February, an 18-year old Florida high school senior named Tyler Tillung was upset at his teacher because she wouldn't let him into the auditorium to see the high school talent show (the "annual Lip Sync show," so perhaps "talent" is an overstatement) because the auditorium was full. So... no, I don't think I can type this without laughing, so I'll just cut and paste from the story:

After she declined, he mooned the teacher. The lawsuit concedes that he made the act worse "by spreading his buttocks for an instant."

A lawsuit filed Tuesday in Pinellas-Pasco Circuit Court alleges the transfer was unreasonably harsh because it denies him the once-in-a-lifetime chance to graduate next month with his class, participate in senior activities leading up to graduation and play his final season on Palm Harbor's varsity baseball team.

To those who say the family is taking the issue too far, Tillung's lawyer, B. Edwin Johnson, said "they don't know the facts." He added: "We're talking about his graduation. That's an important event in a guy's life. ... This kid deserves a break."

(Some of you kind-hearted folks may be tempted to give him the benefit of the doubt. You may think that while it's frivolous to argue that the chance to graduate with one's friends is an injury which the courts should consider, the chance to play with his team is more important, because it could affect his college chances. Don't think that. First, he already has his acceptance. Second, there are only six games left on the school's schedule, all but the last within the next two weeks; he wouldn't get back on the team in time even if he won.)

The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has "changed its chase policy" as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they're more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.

An eighteen-year old named Jesse Tribble had a history of drug abuse. His mother, who had a prior history of drug dealing, gave him money when he told her that he wanted it to buy drugs. (She claimed she thought he was joking.) He then died of a drug overdose.

Obviously, a tragedy. And where there's tragedy, there's a lawsuit. In this case, Tribble's father sued... Jack Whittaker, the man in whose house Tribble died. The theory? Whittaker didn't supervise his 17-year old granddaughter adequately, and gave her too much money, so she might have bought the drugs with which Tribble overdosed.

The lawsuit settled last week. And you guessed it:

After the settlement was announced, Jimmy Tribble said his lawsuit was not about money but about getting the subpoenas to learn what led to his son's death.

Setting aside the fact that an 18-year old is apparently not responsible for his own choices, another disturbing aspect of the story is that nobody finds it remarkable that a lawsuit was purportedly filed solely to get information -- as if a lawsuit were a therapy session rather than a method for assigning responsibility. (Of course, one may -- and hopefully will -- learn something in the course of a lawsuit, but information-gathering is not a legitimate purpose for a lawsuit.)

Let's suppose that a company is losing buckets of money, and needs to cut costs to stay afloat. It might start cutting back on various perks -- a company jet, health club memberships for employees, whatever. And it might make the business judgment that cutting more expensive perks first is the smartest decision. But under California law, applying the same logic to employees -- that the more expensive ones ought to be replaced first -- can get an employer sued. Ask Circuit City, which laid off more than 3,000 employees last week, only to be hit with a lawsuit seeking class action status:

"The workers terminated were those with greater seniority and length of service -- mostly likely the older members of the work force," the lawsuit said. It cites California law, which states that "the use of salary as the basis for differentiating between employees when terminating employment may ... constitute age discrimination."

Follow-ups to some stories I've posted in the last few weeks:

• Last month we reported on the lawsuit against Cory Lidle, alleging that he piloted his plane into someone's apartment building in the crash which killed him last October. Now Lidle's widow is suing MetLife, baseball's insurer, for denying her payment under its accidental death benefit coverage. The policy had an exclusion for accidents in which players are piloting airplanes; Lidle's widow is denying that Lidle was the pilot. In case you're counting, that's at least three lawsuits over this accident, despite the fact that the NTSB still hasn't made any final determinations about the crash. (And I assume that we'll see more from other residents of the apartment building.)

• In February we discussed a ruling in the lawsuit against New York City over the Staten Island Ferry crash; at the time, the lawyers for the plaintiffs convinced a judge not to cap the damages the plaintiffs could recover from the city. The lead attorneys were so proud of their work that they felt they deserved a bonus; now they're asking the court to cut other law firms' fees so they can receive it. And they're bickering over the request:

  "They didn't do anything to help us," said Michael H. Bush of the New Dorp firm of Chelli & Bush. "They never updated us with anything. We never got a phone call. We never got e-mails. We settled all of our cases prior to the motion being settled, and they just did nothing to help."

  "They're motivated by their own interests," he continued. "They're getting the publicity and they have their own million-dollar cases, too."

  And

  Chelli & Bush didn't attend any of "15 meetings" with the firms involved, nor did they show up for any of the court dates during the trial, Bisignano contended.

  "They contributed nothing, and yet they claim there was no benefit to them," Bisignano said. "No honorable law firm would deny our right to be compensated for the services we performed that benefited every law firm and every complainant in this case."

  Children, play nice.

• Findlaw columnist Julie Hilden discussing Carol Burnett's chances in suing Family Guy.

Hey, I just write the American.com column about the Kentucky fen-phen fraud, not the headlines. Earlier on Overlawyered: Mar. 26 and links therein. (Cross-posted at Point of Law.)

All Point of Law edition:

• I discuss Professor Charles Silver's latest foray on Bizarro-Overlawyered. Silver and his coauthors are doing legitimate empirical work, but I don't understand why he keeps making public statements that the published versions of his papers can't support, and I especially don't understand why he does that at the same time he's criticizing the entire reform movement for any given politician's oversimplified sound-bite. [Point of Law]
• New Jersey Supreme Court limits benefits of forum shopping, with potentially fatal implications for pending $27 billion class action against Merck. [Point of Law; Beck/Herrmann]
• The PRI study's $865B figure isn't perfect, as I earlier noted in a post since interpreted to mean that I "loved it." [Point of Law; Turkewitz]
• Plaintiffs' bar attempts to smear next Wisconsin Supreme Court justice Annette Ziegler fail. [WSAW; Point of Law]
• Tax breaks for the plaintiffs' bar. [Day on Torts; Point of Law]
• Don't tell David Behar about this paper; it mentions "privity." [Point of Law]

North Carolina lawyers were up in arms after a seven-month Raleigh News & Observer investigation reported that an attorney who was a Wake County Court-appointed guardian to manage the financial affairs of a series of incompetent parties had been awarded $3.4 million in legal fees since 1991 by courts from his fiduciaries' accounts. Not over the possibility that cozy political connections and a flawed guardianship system permitted Robert Monroe to regularly charge the legal maximum commission and be "handsomely compensated for not having to do very much," but apparently over the fact that the newspaper reported the story at all. [News & Observer; News & Observer ombudsman, both via Obbie]

This time the awful idea of installing alcohol sensors in everyone's car has surfaced in Pennsylvania, and in worse form than ever: cars would refuse to start even when a driver's blood alcohol level was much below the legal maximum. (Radley Balko, Reason "Hit and Run", Mar. 27). Earlier: May 28, 2006 (New York).

Tod Lindberg:

Around the age of eleven, I had settled on an ambition: I would become a lawyer. A friend of my Aunt Marge's had introduced me to the wonders of the law: "Look around you -- negligence everywhere, as far as the eye can see." "How about that person crossing the street outside the crosswalk," I asked, "is that negligence?" "It sure is." The perspective was illuminating....I found myself in a world in which everyone was at fault for something if only you looked closely enough. This would, of course, include oneself.

In 2002, an 18-year old community college student named Joshua Endres signed up for a Wells Fargo credit card, allegedly based in part on the promise made by a sales representative that it could provide overdraft protection for his Wells Fargo checking account. He "does not recall" seeing any of the disclosures and disclaimers from the bank which explained to him that there's no such thing as a free lunch -- that he would be charged a fee if he overdrew his checking account.

A few months after signing up, he overdrew his account, and was charged this fee. He discovered this a few days later, when he received his credit card statement. He was so outraged by this unconscionable behavior by Wells Fargo that he immediately cancelled the card. No, not really; this isn't April 1st. In fact, he immediately used the card for four more years, incurring at least fifty more overdraft charges. Then he filed a lawsuit demanding restitution, and compensatory and punitive damages, alleging that nobody told him that he would be charged a fee.

McCune admits Endres could have done a better job of tracking his charges. Endres once exceeded his limit 62 times in a year, causing him to pay $620 in finance charges so he could obtain $1,115 in cash.

"It took a couple of years before he sat up and noticed," McCune said. "The information was available to him."

There are other problems with the lawsuit, related to the statute of limitations and federal preemption of California laws, but the larger issue here is that someone would fail to read his credit card agreement, incur fees for four years based on the terms of the agreement, and then try to sue on the grounds that nobody told him what the agreement said about those fees. (Oh, did I mention that Endres's lawyer seeks to turn this into a class action lawsuit?)

• Illinois Justice Robert R. Thomas libel ruling award reduced to $4 million, but otherwise upheld by trial judge. "Essentially, the chief justice is still taking advantage of the system he dominates by trying to grab a personal windfall just because an opinion column in a newspaper speculated about politics on the bench." (earlier) [Chicago Tribune; update from Lattman with opinion]
• Alabama woman claims Starbucks coffee caused burns when she spilled on herself, sues. But I thought only Albuquerque McDonald's coffee could cause burns? [Birmingham News (h/t P.E.)]
• Update: Amway claims jurors in Utah case based $19.25 million award (Mar. 21) on number of P&G lawyers sitting at the table and engaged in improper averaging to reach nonunanimous result. [Salt Lake Tribune]

• Copyright claimed in hedge-fund advertising brochure posted by blog [DealBreaker; Reuters]
• N.D. Cal. federal judge: National Environmental Policy Act can be used to make speculative global-warming arguments against overseas government investment. [AP/Forbes]
• Honor among thieves? Law firms turn on Milberg Weiss [press release]
• Lawyer-to-the-stars Marty Singer (Dec. 9, Jan. 27, 2006) was also paid $25k from Senator Harry Reid's campaign fund in failed attempt to squash AP coverage of fishy land deal. [WaPo]
• Consumer World head has an idea that is so good, it must be mandated. [Kazman @ CEI Open Market]
• This date in Overlawyered. 2001: NY legislature refuses to act on accident fraud. 2002: Roger Parloff on 9/11 Victims Compensation Fund. 2004: Reparations claims against the British over 19th century actions. 2006: $1M for the first fifteen minutes of unlawful detention, $1M/year thereafter.

This "lawsuit decision matrix" is just a parody, the real-life RIAA would never litigate abusively (BBSpot via everybody).

"The 'Casanova' cop who was allegedly shot by his wife, a fellow officer, as payback for his wandering eye is suing the NYPD for $3 million, claiming they should have known she was too nuts to carry a gun. ... Alison [Spicer-Jamison] is charged with shooting Todd [Jamison], 44, in a jealous rage last April 10 when she learned he'd strayed from their marital bed less than a year after they married. ... Todd Jamison's suit also names the Patrolmen's Benevolent Association, the City of New York, the NYPD, and his wife, who's currently incarcerated at Rikers Island, awaiting a trial date." (Stefanie Cohen, New York Post, Mar. 31).

"Three homeless men mistakenly arrested last year on charges of sleeping too close to a pile of feces have settled a lawsuit against the city of Las Vegas for $45,000." Police made the arrest although a sleeping-too-close-to-feces provision in one of the city's ordinances had in fact recently been repealed. The ACLU of Nevada proceeded to sue:

The men sought $2 million each in compensatory and punitive damages. Their attorney E. Brent Bryson said Wednesday the $45,000 settlement was reasonable.

"The realities are that these individuals are not capable of maintaining and sustaining an ongoing litigation," he said. "This quick money to them represents an ability for them to get back on their feet."

Bryson collected a $15,000 fee from the settlement.

Two of the three men say they haven't decided yet what to do with their $10,000 windfalls, a sum that will equally well pay for a fair bit of not-getting-back-on-their-feet should they choose to spend it that way. ("Vegas homeless men win $45,000 in suit over sleeping near feces", AP/Las Vegas Sun, Mar. 29; "Homeless men win $45,000 settlement with City of Las Vegas", KVBC, Mar. 29).

A schoolteacher in West Feliciana Parish, Louisiana would take about 30 1/2 years in the classroom to earn $1.4 million dollars, at the district's average salary of approximately $46,000 per year. Or, such a teacher could convince a jury to award that much money for "mental anguish" by claiming that her employer harassed her after she gave Ds and Fs to 70% of the students she taught.

The sad case of seafood importer (and now federal prison inmate) David Henson McNab may be the sort of thing Alexander Hamilton had in mind when he wrote of the presidential pardon power: "The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." (Jonathan Rauch, "Pardon Libby? Maybe, But Not Alone", National Journal, Mar. 30)(will rotate off free National Journal site, check then at author's site or Reason).

Back in the actual calendar year 1984, for what it's worth, the operation of copyright law was a lot gentler toward political satirists and other public commentators (Boing Boing, Mar. 28)(via Glenn Reynolds).