October 2007 Archives

My latest Liability Outlook looks at the abusive litigation created by a statutory drafting oversight: a bill designed to protect against identity theft has instead become a mechanism for the entrepreneurial plaintiffs' bar to attempt to bankrupt innocent businesses that haven't harmed anyone.

Harry Potter and Photoshop are involved. (Alan K. Henderson, Oct. 31).

"Dragging phone companies through protracted litigation [over complying with NSA requests for surveillance help] would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk. ... Without [the companies' voluntary cooperation], our intelligence efforts will be gravely damaged. Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government's call for help. ... For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government's call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government's actions are legal." (Benjamin Civiletti, Dick Thornburgh and William Webster, WSJ/OpinionJournal.com, Oct. 31). More here (fifth item) and here.

P.S. Commenters argue in response that the telecoms are sophisticated and had plenty of time to consult counsel, and point out that Qwest did in fact turn the government down. More: Bader, CEI (with arguments from Sen. Rockefeller).

Is it legal? (Torie Bosch, "The Explainer", Slate, Oct. 30).

If the Cape May, N.J. school district was really going to punish a 7-year-old just for making a drawing of such a thing, with no actual water gun in sight, shouldn't maybe the punishment have been to make him draw a stick figure of a little boy getting an overly-harsh suspension? (Zincavage, Oct. 21; Charles Sykes, "I Have Zero Tolerance for Zero Tolerance Policies", American Thinker, Oct. 30).

Dwayne Dail spent 18 years in a North Carolina prison on false charges of rape. When he got out based on new DNA findings, his ex-girlfriend promptly sued him for child support. (Mandy Locke, "Dail, expecting $360,000, sued by ex-girlfriend", Raleigh News & Observer, Oct. 24; "Wrongly Convicted Man Sued for Child Support", WRAL, Oct. 23; "Prosecutor: Wrongful Conviction Is 'Nightmare'", WRAL, Aug. 29; "Dwayne Dail responds to lawsuit", Goldsboro News-Argus, Oct. 28).

Thanks to Jason Barney, from the Seattle area, for filling in while I met a deadline. Remember, if you're interested in guestblogging, that it's fine to approach us well in advance; we'll probably need some help before and during the holidays, for example.

Which has merely induced Dan Kennedy (Oct. 27) to reproduce the thing as a public service (Jim Rutenberg, "Student Paper Upsets the Edwards Camp", New York Times, Oct. 26). The Streisand Effect strikes again...

• Law firm of King & King in D.C. lost its chance at a contingency fee when its client elected not to pursue the case, so naturally it sued the client [Robert Loblaw @ eNotes; D.C. Circuit ruling for client, PDF]
• How hot is the sausage gravy at Bob Evans? $5,000 worth of hot, says wrist-burned West Virginian [W.V. Record]
• Kid on bicycle suffers catastrophic head injury, lawsuit blames road's steepness and "dangerous wooden posts" alongside [St. Louis Post-Dispatch]
• Genarlow sprung [Volokh and everyone else; earlier]
• Better hope you make it to Chapel Hill: Fayetteville, N.C. loses 24-hour neurosurgery cover [F'ville Observer via KevinMD; trial lawyers' response]
• Fans sue Aerosmith over canceled Maui concert [AP/IHT]
• Class action over poor-quality Kia brakes yields $5.6 million jury verdict, but do lawyers really deserve $4.1 million? [Legal Intelligencer] More: whoops, covered already just below;
• We don't care what your wishes might be, we're putting you on the ventilator to protect ourselves [RangelMD]
• Tawdry sex angles aside, this really sounds like a cautionary tale of the dangers of liberal amendment of pleadings [Lat]
• Observation on traffic-cams: "I'm sick of living in a world in which legal trouble can be generated by robots." [Scheie via Reynolds]
• Read all about it: we side with Paul Krugman and Atrios [four years ago on Overlawyered]

$600 per class member for defective brakes; $4.1M attorney fee claim

See this story via Law.com. No problem with consumers getting a few hundred dollars to offset the cost of a brake job. A healthy $5.6M verdict provides such remedy for over 9,000 class members. The rub? A $4.1M attorney fee claim, which according to my arithmetic is ten lawyer-years in work, at a respectable $200/hr. Oh, and check out the defendant attorney's brilliant lawyering in his appeals brief, referring to the trial judge as the "Red Queen" from Alice in Wonderland. It wouldn't be so bad had the appeals court not remanded the attorney fee issue back to that very trial judge.

Mean-spirited protest of funeral for fallen United States Marine prompts suit

The story is here. That anyone would express their protest in this manner is truly shameful. Update: $10.9M verdict!

Law says wife is husband's property

Slighted spouse sues his wife's lover for "alienation of affection." Law says wife is a man's "property." Story via ABC.com.

You may recall that a couple of Yale Law School students sued the administrator of a law-school bulletin board because they blamed silly gossip about them on the board for costing them job offers. (The administrator himself lost his job offer in response to the uproar.) If so, how come their Yale Law classmate Elizabeth Wurtzel—whose topless photos decorate the Internet, who wrote about her own cocaine and Ritalin addictions, and who was fired from a newspaper for plagiarism—was able to get a job offer from WilmerHale? More on Wurtzel: Taylor; Lat; Bonin, all talking about this NY Times piece. Previous skepticism about the lawsuit: Ilya Somin.

SCOTUSblog reports:

In an unusual order, with seven of the nine Justices not taking part, the Court summarily upheld a D.C. Circuit Court ruling that those Justices had immunity to a civil damages claim of $75,000 by a Washington, D.C., attorney who has challenged the Court for an earlier refusal to hear his case. Since those seven members of the Court were directly sued, they were recused; under federal law, when the Court does not have a quorum (six Justices minimum), the effect is to affirm the lower court ruling. The attorney, Montgomery Blair Sibley, had sued the Justices after they had denied review of a case involving a domestic relations and child custody dispute. In Monday’s order, no Justice made any comment on the Circuit Court ruling being affirmed.

Stuart Taylor, Jr. on the Exxon Valdez and telecom-surveillance cases (National Journal, Oct. 29 -- will rotate off free site, so catch it now). P.S.: Ted has more on the high court's grant of cert in the Exxon case.

In UAW v. Johnson Controls, 499 U.S. 187 (1991), the Supreme Court held that sex discrimination laws prohibited employers from making decisions about fetal safety that took the choice to work in dangerous conditions away from pregnant women. Still, even though the Supreme Court held that "Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents," and the Supreme Court rejected the idea that civil liability could be an issue for such employers, state courts are still holding employers liable when women claim their unborn children suffered injury while they were working. Michael Starr and Christine Wilson look at the issue in the October 29 National Law Journal.

Writes Jack Bogdanich (Oct. 25): "'Sam Adams' is a very, very, very common name. People who brand their companies with a very, very, very common name have to live with the consequences. Letting supporters of a real politician named Sam Adams express their support for him with an appropriately named web domain or two is just something that Boston Beer is going to have to live with." More: Lattman, Oct. 25.

Sens. Chuck Schumer (D-N.Y.), Tom Harkin (D-Ia.), Arlen Specter (R-Pa.) and Thad Cochran (R-Miss.) have teamed up to co-sponsor a proposed constitutional amendment that "would overturn U.S. Supreme Court decisions that limit Congress' power to regulate the funding of political campaigns. ... the amendment would repeal the 1st Amendment as it relates to campaign finance. This would be the first time in our history that we altered the Constitution to curtail liberties protected by the Bill of Rights. It would also have the effect, not accidental, of protecting incumbent members of Congress from being unseated at the polls." (Steve Chapman, Chicago Tribune/syndicated, Oct. 28).

P.S. Then there's the possibility that the talk-radio-stifling Fairness Doctrine will be reintroduced in 2009 or after (John Fund, OpinionJournal.com, Oct. 29). And while "Crooked Timber" may be a pleasantly evocative name for a weblog, would arch-liberal Isaiah Berlin really have been so keen to use the state's coercive power against unwanted speech? (Sullivan, Bainbridge)(& welcome Salon Blog Report readers).

I previously posted on Washington's Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims "unreasonably" delayed or denied.

Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington's Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman's Fund case.

The Supreme Court's knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the "emotional distress" damages which have a punitive measure built into them. And in case you are wondering, Fireman's Fund coverage position was perfectly reasonable.

The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:

My father would have given his life in the line of duty, turns out the insurance company took it instead.

What tripe. Not only would R-67 not apply to her father's claim (it is intended to benefit auto, home and property policies--not health insurance) it's not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers' compensation claim or through the city's health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it's entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter's family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?

Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let's say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here's another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court's discretion. Who's looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague "unreasonable" and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.

And, there's no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.

This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.

Scotland: "A woman who falsely accused her father of rape after undergoing a discredited form of therapy has received an out-of-court settlement." Katrina Fairlie underwent "recovered memory" therapy in Perth and proceeded to level unfounded allegations of sexual abuse at her father, an elected official. "She later said those claims were completely untrue and a police investigation found there was no evidence of abuse," but in the mean time the allegations "had ruined her and her family's lives". The father sued the National Health Service-run psychiatric hospital but a court dismissed his case on the grounds "after ruling that the trust did not owe a duty of care to Mr Fairlie as a relative of a patient". Ms. Fairlie was more successful in her claim, netting a reported £20,000, though the NHS admitted no liability. ("Settlement for bogus abuse woman", BBC, Oct. 20).

You may recall the case of De Villers v. County of San Diego (Mar. 2006; Jul. 2006). Kristin Rossum was found guilty of poisoning husband Gregory de Villers and trying to make his death look like a suicide; his family sued both Rossum and her employer, the county of San Diego, and a jury found that Rossum was only 75% responsible, but that still put taxpayers on the hook for $1.5 million. An appellate court has stepped in to belatedly throw out the case against the County. (via On Point)

We've been on top of this outrage of a medical malpractice case since it was in trial—Aug. 2004, Oct. 2004, Nov. 2004, May 2006, Apr. 12—but Roger Parloff has such a comprehensive post about the Ohio Supreme Court's 5-1 (corrected:) 6-1 decision to strike down an intermediate court's reinstatement of a bogus $30 million verdict that we defer to him. Even the dissenter would have found Fieger's shenanigans problematic, but would have merely reduced the award to $10 million. Still, on remand for a new trial, Justice Paul Pfeifer recommended that “it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.”

NB that among the tactics condemned by the Ohio Supreme Court are the tactics that trial lawyer John Edwards used when he successfully tried a medical malpractice case—pretending to channel the baby in the womb to the jury.

Among the victorious attorneys: one of our favorite bloggers, Mark Herrmann.

Jackpot justice of another kind

A man on the nickel slot machines wins over $1M despite the maximum payout of $2,500. The casino blames computer error. The story shows a picture of the stoic gambler in front of the cordoned-off slot machine.

Etiquette expert pranked in 'Borat' sues

Yes, another 'Borat' suit, here. As the story points out, why wait so long? Come on, folks, jump on the bandwagon!

Wrong doctor sued, pays out of pocket due to Med-Mal policy deductible

Sue the wrong doctor and drag out the litigation process, all to the detriment of the defendant. The story notes that courts rarely find suits are frivolous because "there's almost always some grounds for a suit to be filed." (Update: Jan. 6).

I've got a post at Point of Law detailing a judge's ruling chastising, and imposing sanctions on, three lawyers (including one who's fairly famous) who sued the oil company on behalf of supposed cancer victims in Ecuador; it turned out some of the victims 1) didn't have cancer and 2) weren't aware a suit was being filed in the U.S. in their name. (Oct. 25; and see Roger Parloff's excellent post on the episode at Fortune "Legal Pad").

This time it's Ed Murnane of the Illinois Civil Justice League presenting a tour of the various candidates' stands on civil justice reform (Oct. 15; ritual disclaimer).

Here is an interesting but tragic case currently in trial in King County, Washington. Maria Federici, a then 24-year-old woman was gravely injured when an entertainment center flew from a U-Haul trailer attached to a vehicle operated by another motorist. It smashed through the windshield of Federici's following vehicle, striking her in the face crushing every bone in it. She suffered blindness and permanent disfigurement. Media accounts are here, here and here.

I'm not posting to criticize Federici's suit per se. It has noteworthy flaws to be sure--for instance there is evidence suggesting her blood alcohol content (BAC) was above the legal limit while she was driving, but the BAC was obtained under circumstances suggesting the results were unreliable (the injury trauma and resultant blood loss may have affected the BAC.) And her boss testified that she had only one glass of wine prior to the accident. Notably, the court disallowed the BAC evidence at trial.

So, Federici sues the motorist who failed to tie down the entertainment center, U-Haul and the rental company for alleged design flaws in the trailer and alleged negligent rental practices. Okay, so the motorist can own up for his negligence and U-Haul and the agency can own up for theirs, right? Not so fast. Washington State allows for a fault-free plaintiff to recover all damages from any defendant even 1% at fault.

With or without evidence of intoxication I wonder if Federici could have avoided anything flying toward her while traveling at freeway speeds. So, let’s assume the jury assigns her zero fault. That leaves 100% of potential fault for the defendants. Now, if you read the media accounts it seems to me that the motorist carries the majority of any fault for failing to secure his load, causing the accident. But, who has the deepest pockets? Let me help you: it’s not the motorist.

The plaintiff attorney in this instance will pull out the stops--do anything--to implicate U-Haul, and to a lesser extent the rental agency for any little amount of liability they can so that his client can collect the entire judgment from them (I suspect U-Haul has sufficient assets; the rental agency, if the Mom-and-Pop type, maybe not.) I don't blame the plaintiff's attorney, really--he has to advocate his client's interests. But, it shows how twisted and wrongheaded the joint & several statute is in Washington. Nothing against Federici here, she's suffered enough. But I struggle with holding some people accountable for damages caused by others. Does this make any sense to you?

Let's look at the Mission Statement for the American Association for Justice (formerly the Association of Trial Lawyers of America):

The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.

I'm all for that! Especially that part that says "fair". Is it fair to hold a 1% wrongdoer accountable for 100% of the damages? If so, why? Because I don't agree and I'd like to know if I'm wrong. And, I just know the AAJ would scream bloody murder if anyone tried to amend that statute.

Don't make his art the butt of your jokes

Spotted by Lowering the Bar and story here and if you dare, here's the link. AP story excerpt:

A high school art teacher fired after officials learned he moonlighted by creating paintings using his bare buttocks and other body parts sued his former employers on Thursday.

Workers' Compensation Appeal Board finds politician aide's media criticism of him did not constitute "abnormal working conditions" and upheld a decision denying him benefits

The Court's decision is here. The decision was purely on the merits of the compensability of the workers' compensation claim, so there is no mention if he sued for libel.

Soldier dies after entering operating hotel air conditioning unit; family wants $10M

The story is not entirely clear on if the unit in which he was found was marked with a warning sign or not, although it suggests that it was. The suit claims the hotel was negligent (what a shock) for failing to post appropriate signs and lock doors. You'd think the whirring blades would give a clue it's not the brightest place to be. Oh, his blood alcohol level may have been a factor (see the story.)

• Lawyer for Mothers Against Drunk Driving: better not call yourself Mothers Against Anything Else without our say-so [Phoenix New Times]
• Ohio insurer agrees to refund $51 million in premiums, but it's a mutual, so money's more or less moving from customers' left to right pockets -- except for a big chunk payable to charity, and $16 million to you-know-who [Business First of Columbus; Grange Mutual Casualty]
• Sources say Judge Pearson, of pants suit fame, isn't getting reappointed to his D.C. administrative law judge post [WaPo]
• Between tighter safety rules and rising liability costs, more British towns are having to do without Christmas light displays [Telegraph]
• So strong are the incentives to settle class-action securities suits that only four have been tried to a verdict in past twelve years [WSJ law blog]. More: D&O Diary.
• It's so cute when a family's small kids all max out at exactly the same $2,300 donation to a candidate, like when they dress in matching outfits or something [WaPo via Althouse]
• Idea of SueEasy.com website for potential injury plaintiffs [Oct. 19] deemed "incredibly stupid" [Turkewitz]
• New at Point of Law: med-mal reports from Texas and Colorado; Lynne-Stewart-at-Hofstra wrap-up (more); immune to reason on vaccines; turning tax informants into bounty-hunters?; and much more;
• $800,000 race-bias suit filed after restaurant declines to provide free extra lemons with water [Madison County Record]
• Settling disabled-rights suit, biggest card banking network agrees to install voice-guidance systems on 30,000 ATMs to assist blind customers [NFB]
• Think twice before publishing "ratings" of Pennsylvania judges [six years ago on Overlawyered]

No doubt the search for policy lessons from the catastrophic Southern California wildfires (N.Z. Bear, CBS8) is in its early stages, and no doubt multiple contributing factors will wind up being implicated. Many, though, recall the controversy that hit the front pages after disastrous 2002 wildfires in Arizona, when it was revealed that Forest Service attempts to reduce fire risk by clearing underbrush, installing firebreaks and permitting logging of excessive growth had been heavily litigated and delayed in court by environmental groups (Jul. 1-2 and Jul. 12-14, 2002). Just last month scientists testified that efforts to "step up tree removal efforts and prescribed fire programs" were needed to counter growing fire risk (Ben Goad, "Speed forest thinning to ease fire threat, experts say", Riverside, Calif., Press-Enterprise, Sept. 24). Michelle Malkin and readers have a big discussion (Oct. 23; & welcome readers from there). More from CEI's Hans Bader and Robert Nelson and again from Michelle Malkin (per L.A. Times report, brush clearance and forest thinning credited with saving homes around Lake Arrowhead).

"Amber Dauge was by all accounts a good student at Goose Creek High School" in South Carolina, until the fateful toast-assistive implement got her busted under the school's zero-tolerance-for-weapons policy. (Chris Francescani, "Expelled for Possession of a Butter Knife", ABCNews.com, Oct. 22). See Oct. 23-24, 1999 (knife to cut cake), Aug. 25, 2003 (bread knife). Related: May 2, 2005.

The San Antonio trial lawyer and Democratic donor says he's realized he'd like to spend more time with his family. Surely it couldn't have had anything to do with controversies like the ones covered here or here or here. (Peggy Fikac, "Watts ends bid for Democratic Senate nomination", Houston Chronicle, Oct. 23).

As a Judge Morris Arnold opinion holds (h/t Slim) baseball players can't prohibit fantasy baseball players from playing games based on their statistics. Earlier: May 2006; April 2005.

Not only does this post allow me to celebrate one of my favorite judges, but I can also use this platform to note that Kenny Lofton was out: not because he didn't beat Manny Ramirez's throw into second base (he did), but because he bounced off the bag afterwards while still being tagged.

House Democrats have introduced legislation that would hold third-party banks liable for packaging and reselling mortgages that the borrower decides to sue on. Back in April, I wrote in the Wall Street Journal why this earmark for trial lawyers would be disastrous to the economy and make the subprime crisis far worse than it is now.

Thanks to Walter Olson for welcoming me back after a short hiatus from my last guest blogging stint. I often see stories worth sharing, this one in particular [excerpt below, full story here.]

A group of well-heeled women who paid up to $1,500 to snag a man through one of the nation's priciest and fast-growing online dating services — It's Just Lunch — has filed a civil lawsuit in Manhattan federal court, claiming the lunchtime setups were not what they bargained for.

This reminds me of this hilarious YouTube clip which is strikingly on point in this instance. Overlawyered indeed. And, $1,500 for a date? That's about as out-of-touch as $27K for wedding flowers (with accompanying lawsuit.) Well, these "well-heeled" women expected George Clooney but (apparently) got Gilbert Gottfried instead. Maybe, simply, their hopes were just too high. Especially if they were prepared to fork over $1,500 for a date. Caveat emptor, I'm afraid.

Disposing of a worn-out vehicle, appliance, computer, even maybe a house in the state of Oregon? Maybe you'd better worry that a subsequent user will get injured by or in or with it and blame the mishap on your negligent failure to perform proper maintenance. That theory is getting a plaintiff to trial past a motion to dismiss in a case where a crash victim is suing not only the owner of the truck that hit him, but also a former owner that had sold the truck about a year earlier. The Oregon Supreme Court, reversing a trial and appeals court, is allowing the case to go to trial. Lewis & Clark lawprof Jack Bogdanski writes:

How far does the rule of this case go? Would it cover tools that you unloaded at a garage sale last year? How about the house you sold last year, or five years ago? Surely, it would cover that used car you got rid of, although the court hinted that maybe you'd be off the hook if the dangerous condition was obvious when you sold it, or if you traded the car in at a dealership.

What can you do to protect yourself? I doubt that your insurance covers it -- at least auto policies end when the vehicle is sold, and I'd be surprised if a standard homeowners policy wouldn't work the same way. There's no way to get a release in advance from everyone who might be hurt by breakdowns of your former stuff while it's in the hands of future owners whom you don't even know.

(Jack Bog's Blog, Oct. 21; Bailey v. Lewis Farm, Inc., Oregon Supreme Court, Oct. 11). P.S. Corrected procedural posture of case following reader comment.

Highly placed attorney with intellectual-property specialists Fish & Richardson accumulates his own portfolio of patents, quits the firm, begins suing Fish & Richardson clients, things get messy fast (Patent Troll Tracker, Oct. 21). Patent Troll Tracker (h/t Ambrogi) looks likely to become part of our regular blog rounds.

Liability reform provided an early flashpoint last night, with Giuliani assailing Fred Thompson's Senate voting record and Sen. Thompson offering a federalism defense. (Althouse, Oct. 21)(more; ritual disclaimer). More: the Giuliani site is hitting Thompson hard on the issue.

More malpractice insurers are requiring doctors to take personality tests or their equivalent: "Doctors who fare 'poorly' on the assessment [at Iowa-based United Medical Liability Insurance Co.] have to go through a coaching session, at no cost to them, on how to improve their communication skills if they want coverage." (Amy Lynn Sorrel, "Medical liability insurers adding personality tests to application process", American Medical News, Oct. 1)(via KevinMD). Related: Apr. 12.

Reversing a lower court, a California appeals court "reinstated allegations that the city had failed to adequately shield marketgoers from motorist George Russell Weller, who was 86 when he crashed his car through barricades and into crowds of pedestrians at the popular open-air market". (John Spano, "Farmers market crash victims can sue Santa Monica, court rules", Los Angeles Times, Oct. 17; Terence Lyons, "City Back In Farmers’ Market Lawsuits", Santa Monica Mirror, Oct. 18-24). Earlier: Jul. 14, 2004.

• Some suits are too silly even for Florida: teen steals OxyContin, dies from OD, family sues Eckerd. [On Point]
• Jack Goldsmith's four questions for AG nominee Mukasey. [NY Times/AEI; see also Ornstein]
• You may already be Pacman Jones's co-defendant. [TortsProf]
• A contrarian opinion on Judge Sam Kent. [Beldar]
• Chris Dodd goes to bat for trial lawyers suing telephone companies that dared to comply with a government request to assist in terrorism investigations. [Slate]
• Suit: TJ Maxx catches pervert taking surreptitious upskirt photos; female victim sues store for waiting to gather conclusive evidence. Convicted pervert, serving 2-4 years, not sued. [AP/Fox News]
• Op-ed: Kellogg's "wimped out" by not calling bluff of frivolous obesity lawsuit. [The Bulletin]

• DC puts the "dysfunctional" into "district": fire department; Department of Youth Rehabilitative Services [Washington Post]
• Not that the TSA boondoggle is any better. [Cafe Hayek]

Ted and I both have onerous deadlines to meet over the next two weeks, so we've got an opening for a guestblogger or two who might like to drop by for a week's stint. Those who've guested before are welcome to consider a return engagement, too. Contact editor - [at] - this domain name.

Just by browsing the website of a company called Inventor-Link, visitors supposedly consent to abide by the terms of a "user agreement" which "strictly" prohibits them from using not only any of the site's content but even its name without express permission. "Furthermore, we strictly prohibit any links and or other unauthorized references to our web site without our permission." The company is invoking these terms in a cease and desist letter "in an attempt to stop criticism of the company that appears on InventorEd.org, a website that provides information about invention promotion businesses and scams." Inventor-Link's law firm? None other than Dozier Internet Law, criticized in this space and many others last week over its claim that its nastygrams are themselves the subject of copyright and cannot be posted on the web. And the Dozier firm's own website has a user agreement that purports to prohibit "linking to its website, using the firm's name 'in any manner' without permission," and, weirdest of all, even looking at its source code by clicking on your browser's "view source code" command. (Greg Beck, Consumer Law & Policy, Oct. 17). More: Boing Boing, TechDirt (including comment that reads, in its entirety, "You are not allowed to read this comment"), Slashdot.

• SueEasy.com is new website that will take in complaints from potential plaintiffs and relay them (OK, sell them, actually) to lawyers [TechCrunch]
• 6-year-old girl in Park Slope, Brooklyn, faces $300 fine for drawing pictures with sidewalk chalk [Brooklyn Paper]
• 30-year-old presents at ER with chest pain. Better order up the works, right? [Shadowfax first and second posts; more on emergency rooms/care here, here, here, etc.]
• More on donor bundling, lawyers and candidate John Edwards [WSJ sub-only, yesterday; Edwards-critical site]
• Monsanto, criticized for aggressive lawsuit campaign against farmers over its patented seeds, loses a patent case against four seed companies [BLT; Liptak/NYT 2003; critics of company]
• A corpse is a corpse, of course, of course/And no one can sue for a corpse, of course: more on that class action that keeps going with dead guy as named client [Madison County Record; earlier]
• While mom is taking bath in motel room her two young daughters somehow manage to change the channel to pr0n; jury awards mom $85,000 [L.A. Times]
• Another case history in how you can buy yourself a world of trouble when you try to fire your contingent-fee lawyer [Texas Lawyer (Law Offices of Windle Turley v. Robert L. French et al.)]
• Hey, you're pretty good yourself [Marty Schwimmer, Trademark Blog]; just one link can give such a thrill [Cal Blog of Appeal]
• Tuck it in and turn out the light? Court won't reopen Pooh heirs' long-running suit against Disney [Reuters/NYT; earlier]
• Texas couple ordered to pay $57,000 for campaign ads criticizing judge [eight years ago on Overlawyered]

Ted has already mentioned today's front-pager on Milberg Weiss campaign donations, which is kind enough to quote me. I was particularly glad that reporter Mike McIntire took note of some of Milberg's connections on Capitol Hill, which tend to get less attention than its Presidential campaign donations:

Beyond campaign contributions, Milberg Weiss became deeply ingrained in the financial firmament of the Democratic Party in other ways. Members of the firm gave $500,000 toward construction of a new Democratic National Committee headquarters, and some became partners in a private investment venture with several prominent Democrats. They included former Senator Robert G. Torricelli of New Jersey, who is a fund-raiser for Mrs. Clinton, and Leonard Barrack, a Philadelphia trial lawyer who was once the national fund-raising chairman for the Democratic Party.

Along the way, as Milberg Weiss’s brass-knuckles legal strategy made it a target for Republicans advocating limits on class action suits, it usually could count on Democrats in Washington to protect its interests. After federal prosecutors indicted the firm in May 2006, four Democratic congressmen issued a joint statement, posted on Milberg Weiss’s Web site, accusing the Bush administration of persecuting lawyers who take on big businesses.

The statement, signed by Representatives Gary L. Ackerman, Carolyn McCarthy and Charles B. Rangel, all of New York, and Robert Wexler of Florida, contained several passages that appear to be lifted directly from a “class action press kit” distributed by a national trial lawyers group. All but Mr. Wexler have received campaign contributions from Milberg Weiss partners.

(Mike McIntire, "Accused Law Firm Continues Giving To Democrats", New York Times, Oct. 18).

The New York Times finally gets around to exploring the ties between indicted Milberg Weiss, convicted Bill Lerach, and John Edwards and the Clintons (as well as the four Democrat representatives who parroted statements about Milberg's supposed innocence). Walter is quoted. (Mike McIntre, "Accused Law Firm Continues Giving to Democrats", Oct. 18). Regular readers of Overlawyered and Point of Law knew all this months ago. Useful comparison: MSM mentions of Enron ties to the Republican party compared to the much-more culpable Milberg Weiss much-more extensive ties to the Democrats—especially given the political favors done for the parasitical law firm that have allowed it to extract billions of dollars from investors.

This can't be true -- too many policymakers and activists have invested careers in the contrary:

It is not the cartoons that make your kids smack playmates or violently grab their toys but, rather, a lack of social skills, according to new research.

"It's a natural behavior and it's surprising that the idea that children and adolescents learn aggression from the media is still relevant," says Richard Tremblay, a professor of pediatrics, psychiatry and psychology at the University of Montreal, who has spent more than two decades tracking 35,000 Canadian children (from age five months through their 20s) in search of the roots of physical aggression. "Clearly youth were violent before television appeared."

(Nikhil Swaminathan, "Taming Baby Rage: Why Are Some Kids So Angry?", Scientific American, Oct. 16).

If you think our post on the bride's flower lawsuit has had a busy comments section, check out the WSJ law blog, where the number of comments is now up to 181.

P.S. But Above the Law still leads the field, with 214 comments on its first post and 94 on its second.

Last month Public Citizen drew extensive and largely uncritical publicity for a report blasting credit card arbitration. The report's most dramatic number, picked up by many papers, was based on newly available California data: "In a sample of 19,300 cases, arbitrators ruled in favor of consumers 5 percent of the time." (Phuong Cat Le, "Binding arbitration a loser for consumer", Seattle Post-Intelligencer, Sept. 27). Such results, charged a Public Citizen official, show “a stunning bias against consumers”. Kansas City Star consumer columnist Paul Wenske's reaction was typical: "Would you agree to let someone arbitrate your dispute with a credit card company if you knew he or she almost always decided in favor of the company?" ("When you sign up for a credit card, you sign up for arbitration", Oct. 6). It was all a great publicity coup for the litigation lobby, which has been gearing up a campaign to do away with predispute arbitration agreements that divert potentially lucrative disputes away from the lawsuit system.

If, however, you happened to read Bob Ambrogi's Legal Blog Watch entry on the story, you might have noticed the following reader comment:

Bob, I am an arbitrator for NAF [National Arbitration Forum]. My statistics would show that I rule for the Claimant in an extremely high percentage of cases. The statistic is misleading as 95% plus cases are default cases, where the consumer never bothers to answer.

Posted by: legal eagle | Sep 28, 2007 1:19:06 PM

And there you have the little trick behind Public Citizen's sensational assertion that only 5 percent of consumers manage to beat the house. The vast majority of cases that go before the arbitrators are in fact uncontested collections, which present no active dispute to resolve one way or the other. Where there is an active dispute, it is plain that consumers' win rate is very much higher than 5 percent. Why did so many journalists in recent weeks convey the mistaken impression that there's almost no hope of success for the consumer who contests the lender's story at arbitration? Because those journalists were falling into a hole skillfully dug for them by Public Citizen.

Any system of resolving routine consumer collections, including traditional courtroom litigation, is likely to generate a high rate of default judgments or their procedural equivalent. The National Arbitration Forum at its website refers to one pertinent study which it summarizes as follows:

Default Judgments Against Consumers: Has the System Failed? (Sterling & Schrag, 1990; 67 Denv. U. L. Rev. 357, 360-61)

A Georgetown University law professor analyzed a sample of claims filed in 1988 against consumers in the Small Claims and Conciliation Branch of the Superior Court of the District of Columbia. The small claims procedure did not require the consumer to submit a written answer. Instead, the consumer only had to show up in court at the specified time. Nevertheless, according to the study, 74% of the cases resulted in a default judgment. In 22% of the cases, the consumer acceded to full liability. In the remaining 4%, the plaintiff voluntarily dismissed the case. None of the cases resulted in a trial.

Making full allowance for the somewhat different mix of cases in the two instances, one still is left here with an even lower "consumer win rate" than in the California data. And a recent news story from Texas about debt collection by lawsuit includes an allegation that more than 80 percent of consumers fail to contest the matter, resulting in default judgments; if creditors are winning even half of the contested cases, the resulting "consumer win rate" is below 10 percent. (Teresa McUsic, "Unpaid credit-card bills giving rise to lawsuits", Fort Worth Star-Telegram, Aug. 31).

Of course, some of us would suspect that Public Citizen's really major beef with arbitration clauses is not so much with the way they divert the collections process away from the courts, but with a quite different effect they have on litigation: they impede the filing of class actions by the entrepreneurial plaintiff's bar (arbitration clauses typically rule out class treatment of complaints, which means law firms who've signed up one client can't proceed to enroll millions of other cardholders as plaintiffs too without their say-so). But of course the casual newspaper reader is likely to be a good bit more sympathetic to individual consumers supposedly facing a deck stacked 95-to-5 against them than with the business reverses of class action law firms who find themselves no longer able to extract the sorts of fee-driven settlements they once did.

Everyone else is getting publicity by filing suits over the iPhone, so they may as well too: "Environmentalists have threatened to sue Apple if it does not make its iPhone a “greener” product or tell consumers of the toxins allegedly used in the device’s manufacture. The Center for Environmental Health (CEH), a campaign group based in Oakland, California, said that it would launch legal action in 60 days unless Apple took action." (Rhys Blakely, Apple faces legal threat over ‘toxic’ iPhone", Times Online (U.K.), Oct. 17; InfoWorld; ArsTechnica). The CEH is invoking California's ultra-liberal Prop 65 toxics-warning law, on which see posts here, here, here, etc.

I've got more coverage at Point of Law here and here.

John L. Smith, whom the Las Vegas Review-Journal describes as its most widely read columnist, "has filed for bankruptcy after a two-year legal battle with Sheldon Adelson, owner of The Venetian resort. Adelson is suing Smith and his book publisher, Barricade Books, and alleging libel based upon Smith's 2005 book 'Sharks in the Desert: The Founding Fathers and Current Kings of Las Vegas.' The Review-Journal was not named in the lawsuit." Smith concedes the muckraking book contained inaccuracies about Adelson but takes issue with the tycoon's claim of damages: "in the time since this book was published, Adelson has gone from 15th richest man in the world, according to the Forbes annual ratings, to sixth, so it's hard to see how he has been harmed." Barricade Books, associated with the late Lyle Stuart, also filed recently for bankruptcy. (A.D. Hopkins, " Columnist pursues bankruptcy protection", Las Vegas Review-Journal, Oct. 12) (via Romenesko).

Recommended: at Slate, Tim Wu of Columbia has a five-part series in progress on the phenomenon of laws whose violation is very widespread and broadly tolerated. His examples include laws against (certain) recreational drug use, possession of obscene material, (some) copyright infringement by end users, and (promised in the final segment) immigration. (One that might have been added: low-level gambling in the form of office football pools and the Supreme Court poker game.) His opening anecdote:

At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity — say, Mother Teresa or John Lennon.

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her.

(via Katherine Mangu-Ward, Reason "Hit and Run"). More from Hans Bader.

"The use of predominantly pastel centerpieces had a significant impact on the look of the room and was entirely inconsistent with the vision the plaintiffs had bargained for," contends bride/attorney Elana Glatt in her New York City suit, which also says the pink and green hydrangeas in the 22 centerpieces "were wilted and brown, and arranged in dusty vases without enough water. ... The flowers cost $27,435.14." "My father used to tell me, 'Don't deal with the lawyers," said florist Stamos Arakas of Posy Floral Design in Manhattan, the defendant in the suit. "Maybe he was right, God bless his soul." ("NYC bride sues florist, saying wedding flowers were wrong color", AP/Newsday, Oct. 16). More details: NYTimes via Lat.

And: many interesting comments including the following, from "tp", responding to a suggestion that the florist had substituted less costly blooms:

I too am a wedding designer. I can assure you that pink/green hydrangeas are NOT cheaper than "rust" hydrangeas.. actually, they are the same hydrangeas, but at different stages... the lighter being less mature, which all depends on climate and cooling conditions of the air. The rust are matured and this happens due to air temps. ...

I am sure this designer ordered the correct color, but due to the extremely warm temps, the flowers have not hit that stage. Nothing either party could do (wholesaler/retailer). ...it is hard to substitute different or new flowers (if they show up the wrong shade, etc) in such large quantities, a day before the wedding! These flowers need to be treated and designed. ...He did not do a "bait and switch" nor make any extra money here, he probably LOST money trying to correct the problem ...

The tale has stimulated many hundreds of comments at other legal blogs.

This one looks more carefully put together than most such lists, though I wish the author hadn't waited till the end to flag the Winnebago story as mythical. For bonus points: which if any of the stories has never appeared on Overlawyered? (LegalZoom, undated).

Father's Day at the Georgetown pool:

"So let me get this straight," I said. "If she was wearing a swimsuit with no floaties in it, that would be okay. But this suit, which is safer, is not okay." ...

"That's right," the manager said. "This is a government pool and that's the D.C. government."

(Tony Rosenberger, BLT, Jun. 18; h/t Ted on our Facebook group).

Ethnic discrimination by proxy? "'I believe controlling the color you paint your house is basically profiling the Hispanic community,' said Elizabeth Villafranca, whose family owns a Mexican restaurant in [Dallas, Texas suburb] Farmers Branch. 'We all know who paints their homes tropical colors.'" (Anabelle Garay, "Hispanics see red over proposal", AP/Bryan-College Station Eagle, Oct. 10). More: Virginia Postrel weighs in.

Adam Liptak at the Times looks at the heavy lawyer-ad presence on Google sponsored links (“Oakland personal injury lawyer” costs $58.03), and quotes both Ted and me. “Instead of competing on price,” Ted says of plaintiffs’ lawyers, “they compete on Google.” And I point out that the family in search of information on, say, cerebral palsy, will run into plenty of medically tendentious material posted by lawyers as part of their client-intake efforts. (New York Times, Oct. 15).

Wisconsin blogger Jessica McBride reports that the Wisconsin Supreme Court, by virtue of a 3-3 decision, affirmed a lower court ruling on the ludicrous $17 million Heikkinen verdict (Feb. 21 and Feb. 27, 2005). Point of Law has previously documented the travails of the 4-3 liberal majority that has become one of the most activist state supreme courts in America.

• Louisiana attorney general Foti, under fire over his attempt to prosecute Dr. Anna Pou in Katrina deaths, faces tough re-election challenge [Times-Picayune, Lafayette Advertiser; earlier]
• Classic "Hershey's liable to obese Americans" print satire now has a short audio version [Onion radio]
• Criticize alternative medicine at your peril? U.K. libel law helps stifle an opponent of homeopathy [Orac]
• Tennessee trial lawyers' lobbyist comes under harsh public spotlight following lurid crackup of House Judiciary chair Rob Briley [Nashville Scene; earlier]
• Invoking CAFA, judge throws out coupon settlement in Sharper Image air purifier class action [Krauss @ Point of Law]
• In 4-4 split, Supreme Court lets stand a ruling that NYC must pay private school tuition for Hollywood exec's ADHD son though he wouldn't give city program a try; issue likely to return soon [NYTimes; earlier]
• Veteran journalists Patrick Dillon and Carl Cannon ink deal for book on rise and fall of Lerach tentatively titled Circle of Greed [WSJ law blog]
• Unforeseen consequences dept.: plan for retirement community catering to gays may be derailed by workings of antidiscrimination law [Miller, Independent Gay Forum]
• HIPAA an impediment to doctor-patient emails? [CareCure Forums via KevinMD]
• Update on fraudulent liens filed by prison inmates to harass court personnel (Mar. 31, 2004): system strikes back with extra 20-year term for one offender [Texas Lawyer]
• EEOC says Massachusetts employer must accommodate eyebrow-ring-wearing employee who claims membership in "Church of Body Modification" [five years ago on Overlawyered]

An Australian woman asked that her in vitro fertilization (IVF) result in a single baby but two embryos were mistakenly implanted. Now she wants $A400,000 for the cost of raising the child to adulthood. ("Mother sues doctor over twin birth", ABC (Australian) News, Sept. 18)(via KevinMD). The local branch of the Australian Medical Association says the law should be changed to prevent damage claims over the birth of unimpaired babies: "We're very concerned [at] the concept that a healthy life is wrongful." ("Doctors should not be liable for mistake births: AMA", Sept. 22). More on wrongful birth lawsuits here.

Nominations open through Monday (via fierce competitor Above the Law). More at Blawg Review.

Update (from T.F.): We've been nominated; if you agree, feel free to second the nomination by hitting the "plus-sign" in the lower right-hand corner of the nomination.

• Shocker- Washington state trial lawyers lie in ad promoting litigation windfall referendum. [The Olympian; Reject R-67]
• Mississippi AG Jim Hood rewards his out-of-state trial-lawyer campaign donors. [Hattiesburg American]
• Update: Illinois Justice Robert R. Thomas settles his libel case; sued reporter is unrepentant. [Law.com]
• Update: Cop withdraws slip-and-fall lawsuit; department placed her on paid leave and is investigating [South Florida Sun-Sentinel]

• Update: 1-800-Flowers suit dismissed on technicality; plaintiff adulterer vows to refile in New York. [On Point]
• Update: Court reverses injunction in whales v. US Navy sonar lawsuit, but lawyers vow to keep trying. [Bashman roundup]

• Wrongful sermon a cause of action? [On Point]
• Don't expect your rapist to be convicted by a Philadelphia jury. [Philly Magazine]
• Facebook as treasure-mine for litigation evidence. [Law.com]
• Dry-cleaners can bring frivolous lawsuits, too. [New York Post]

Gruesome life-changing injuries from tug-of-war matches (e.g., Colorado, Oct. 12; North Carolina, 2003; Taiwan, 1997; Tennessee, 1995) are rare, but not unheard of. Safety measures on tug-of-war ropes are possible. Do everyday ropes, used for a variety of purposes other than tug-of-war, need warning labels? Do previous injuries put the Colorado school district on notice: i.e., does a single publicized injury now make every school district effectively strictly liable if future injuries occur? What happens when tug-warriors disregard safety rules because the obvious risk of wrapping rope around a body part is not clearly spelled out? (Keep in mind in the Stella Liebeck McDonald's coffee case, the plaintiffs complained that the coffee-cup warning that the beverage was hot wasn't clear enough about the risk of injury.)

Except, reports Robert Ambrogi, that Mr. J.'s firm does not list a Boston office. Yes, it's the sometimes tacky world of search engine pitchmanship and mass-produced website generation, courtesy of an outfit called Top Lawyers, now with a growing presence on YouTube as well. (Oct. 12).

• In Scotland, car repair shop faces music royalty suit because its employees listen to radios on the job [BBC]
• Pediatricians grill kids about their parents' drinking, gun ownership and antisocial habits -- what, weren't the hairdressers reporting back enough dirt for the authorities to work with? [Malkin, Szwarc]
• Watch out for the new ADA Restoration Act of 2007, which would reverse several Supreme Court precedents with the aim of making it easier to file and win suits [Bader]
• Don't confuse Hollywood's idea of lawyering, as in Clooney's "Michael Clayton", with the real kind [Lundegaard, MSNBC]
• "It costs millions of dollars in litigation fees to show that a patent should not have been granted, and most big corporations have learned that the hard way." [Chachkes @ CNet]
• Banning all uses of lead from metal assemblies can result in "tin whiskers" leading to catastrophic failures in electronic devices -- lucky those aren't dangerous or anything [AP]
• Armenian-American writer Garin Hovannisian isn't an admirer of the Congressional genocide resolution [Boaz @ Cato-at-Liberty; see also Jul. 27]
• Lynchburg, Va. woman: hey, I invented those pre-moistened cleaning wipes [News Advance via VLW]
• Don't listen to trolls like this Olson fellow [Mark Thoma comments]
• Another round of coverage on libel tourism, SLAPPs and terror-support research [Broyde & Lipstadt @ NYT; Miller @ City Journal, Levitt @ The New Republic]
• New at Point of Law: Ted on yet another iPhone suit, this time demanding a billion plus; further coverage of the Hofstra/Lynne Stewart affair; after many failures, lawyers score a $143 million verdict against Wyeth over hormone replacement drug Prempro/Premarin; more on the U.S. Navy, WWII and asbestos disease; new Irvine law school's in the money; and much more.

I take a look at the question this morning at Point of Law.

ZipCar and FlexCar are violating the Americans with Disabilities Act by not providing special hand controls for disabled drivers, according to a lawsuit which also names the District of Columbia as a defendant because it provides parking spaces to the popular car-sharing services. (Hank Silverberg, "Disabled Woman Files Lawsuit Against Car-Sharing Services", WTOP, Oct. 11).

Ted has briefly mentioned (Oct. 8) the recent doings of an outfit called Dozier Internet Law, whose cease and desist letter to a consumer-complaint site not only demanded that the site take down certain statements about Dozier's client, DirectBuy, but also asserted that the cease and desist letter was itself the subject of copyright and could not be posted in part or full on the web. Eric Turkewitz, having called this approach "chuckleheaded" in an initial post (Oct. 5 -- scroll), is now all over the story (Oct. 9 and Oct. 11), especially after attorney John Dozier of the firm in question submitted a comment whose clueless snippiness really must be seen to be believed.

More: from Consumer Law & Policy, Patry Copyright Blog, Legal Ethics Forum, and TechDirt, as well as extensive coverage at TDAXP.

The AP brings us up to date on the anniversary of Cory Lidle's death:

By one estimate, more than $63 million worth of lawsuits now trail the estate of Yankees pitcher Cory Lidle, seeking compensation for injuries, damages or insurance payouts that followed his plane's crash into a New York City apartment building.

A year after the wreck, a federal safety panel has concluded that Lidle and his flight instructor died because they misjudged a turn, but the finding has done little to settle the legal fights that now stretch across the country.

(Previous entries: Mar. 2, Apr. 4, May 2).

I'm scheduled to join Glenn Beck today on his CNN Headline News show, on the 2:30-3:00 p.m. Eastern segment, to discuss the Lynne Stewart/Hofstra affair. P.S. Turned out it was a taping rather than live show, so air times will vary from the above.

Joe Meadows was drunk. Very drunk. 0.296 percent blood-alcohol content drunk, 12 or 13 beers worth. Fortunately, he didn't drive in that state. Unfortunately, he chose to sleep it off by resting under a parked 18-wheel truck. More unfortunately, the driver, Doug Rader, who didn't check to see whether there might be drunks lying under his truck at 1:40 a.m., ran over Meadows. Rader had EMT training, and was able to save Meadows's life, but Meadows lost a leg, and sued both the truck company and the store that owned the parking lot. A Kanawha County jury decided that Meadows was only a third responsible for his injury, which means he "only" gets two thirds of the three million dollars they awarded. (Since Meadows had only asked for $2.3 million, one detects nullification to get around the fact that he was found partially responsible.) Plaintiffs' attorneys Jesse Forbes, Bill Forbes and Roger Decanio state they are "pleased" with the verdict. (Vic Sprouse, "West Virginia isn't a judicial hellhole? Tell that to Go-Mart", West Virginia Record, Oct. 10; Andrew Clevenger, "Hernshaw man awarded $2 million in loss-of-leg case", Charleston Gazette, Oct. 4; Cheryl Caswell, "Jury awards $3 million to man who had leg torn off by tractor-trailer", Charleston Daily Mail, Oct. 4).

"A police officer has sued the family of a 1-year-old boy who nearly drowned because she slipped and injured a knee responding to their 9-1-1 rescue call." Andrea Eichhorn, a police sergeant in Casselberry, Florida, responded to the pool accident, and now "claims the boy's family left a puddle of water on the floor, causing her fall during the rescue efforts. She broke her knee and missed two months of work." So she's suing the Cosmillo family. "It's a situation where the Cosmillos have caused these problems, brought them on themselves, then tried to play the victim," says her attorney, David Heil. Joey Cosmillo, the infant in question, suffered severe brain damage and lives in a nursing home now. (Rene Stutzman, "Cop who fell on the job sues family of baby who almost drowned", Orlando Sentinel, Oct. 10; AP/Florida Today, Oct. 10)(slightly reworded to clarify sequence of events).

Plus: commentary on the above (Mike Thomas, "Hello, 911? Send a cop -- who won't sue", Orlando Sentinel, Oct. 11). And update: cop decides to withdraw suit after public outcry.

Robert Berry at RetroCrush reminisces:

See, when I was a kid, our toys were dangerous because of misuse. ...Now that China's trying to implement a worldwide population control by dunking everything in some sort of evil death juice, it appears that these old school "deadly" delights are probably the safer option after all.

Actually, I well remember lead toy soldiers, whose composition was exactly what the name implies; because lead is a soft metal, one way you could play with them was by applying pressure with your fingers to alter their shape a bit this way or that. Pratie Place, a while back, mourned the demise of such amusements as early-design Fisher-Price "little people" and Parker Brothers' spring-load token game, "Booby Trap" -- though a redesigned version of the latter is back, per Tom McMahon.

Here's precisely why the Class Action Fairness Act was passed: in 2000, the Texas Supreme Court ruled that Texas law did not apply to out-of-state members of a putative nationwide class in a lawsuit filed against Texas business Compaq. So what do plaintiffs do? They just filed the same lawsuit in Oklahoma, and the Oklahoma Supreme Court disregarded the Texas Supreme Court opinion (as well as the constitutional requirements of the Full Faith and Credit Clause) to certify the exact same class that the Texas court rejected, holding that Texas law did apply to the nationwide class. Yesterday, the United States Supreme Court refused to intercede, and Hewlett-Packard will now face a class of 1.7 million customers: most risk-averse corporate defendants settle rather than attempt to vindicate their rights in such a circumstance. (AP/Law.com, Oct. 10). Such multiple bites at the apple would not be allowed if the suit were brought today.

Does the Democratic Party realize the extent to which party leaders are selling out its principles to the trial lawyers? It's gotten to the point that they're running John Arthur Eaves, Jr., for governor in Mississippi. Eaves is pro-school-prayer, anti-abortion, and more sanctimonious in his Christianity and gay-bashing than any Republican regularly criticized by the Kossacks of the Left. But at least he supports (and is a member of) the trial bar! Democrats' other constituencies should take a long hard look at the extent to which their issues are going to take a back seat to the litigation lobby's takeover of the party. (Adam Nossiter, "In Mississippi, Democrat Runs in G.O.P. Lane", New York Times, Oct. 10).

Update: Howard Erichson notes Eaves's slogan ""If it wasn't your fault or an act of God then someone must be held responsible" and Peter Lattman also covers the page-1 Times story.

"Voters want and deserve a candidate who represents real people, not corporate special interests." -- John Edwards spokesman David Bonior, attacking Hillary Clinton in the New York Times

• She wore a wire: defense attorney says administrative assistant to one of the three lawyers in Kentucky fen-phen scandal worked as FBI mole, circumventing attorney-client privilege [AP, Courier-Journal, Lexington Herald-Leader, ABA Journal]
• Suing a lawyer because his deposition questions inflicted emotional distress? No way we're going to open those floodgates, says court [NJLJ]
• Counsel Financial Services LLC, which stakes injury lawyers pending their paydays, says it's "the largest provider of attorney loans in the United States and the only Law Firm Financing company endorsed by the AAJ (formerly ATLA)"; its friendly public face is a retired N.Y. judge while its founder is attorney Joseph DiNardo, suspended from practice in 2000 "after pleading guilty to filing a false federal tax return" and whose own lend-to-litigants operation, Plaintiff Support Services, shares an office suite with Counsel [Buffalo News] The firm's current listing of executives includes no mention of DiNardo, though a Jul. 19 GoogleCached version has him listed as President;
• Patent litigation over cardiac stents criticized as "a horrendous waste of money" [N.Y. Times]
• More on the "pro bono road to riches", this time from a California tenant case [Greg May, Cal Blog of Appeal]
• Not a new problem, but still one worth worrying about: what lawyers can do with charitable trusts when no one's looking over their shoulder [N.Y. Times via ABA Journal]
• Has it suddenly turned legal to stage massive disruptions of rush-hour traffic, or are serial-lawbreaking cyclists "Critical Mass" just considered above the law? [Kersten @ Star-Tribune]
• "Look whose head is on a plate now": no tears shed for fallen Lerach by attorney who fought him in the celebrated Fischel case [ChicTrib, San Diego U-T]
• "Jena Six" mythos obscures graver injustice to black defendants, namely criminal system's imposition of long sentences for nonviolent offenses [Stuart Taylor, Jr. @ National Journal -- will rotate off site]
• Economist David Henderson on restaurant smoking bans [Econ Journal Watch, PDF, via Sullum, Reason "Hit and Run"]
• Technical note: we learned from reader Christian Southwick that our roundups were displaying poorly on Internet Explorer (Ted and I use other browsers) and we found a way to fix. So, IE users, please drop us a line when you encounter problems -- we may not hear about them otherwise.

Ed Morrissey of the Captain's Quarters Blog interviews me about the Stoneridge case and argument, and about Sarbanes-Oxley. Morrissey comments further about the case.

Why the case played out as a strong one for the record labels (Eric Bangeman, "How the RIAA tasted victory: a perfect storm which might not be repeated", ArsTechnica, Oct. 7; and extensive coverage of the trial by the same author). More: Greg Sandoval, "For RIAA, a black eye comes with the job", CNet, Oct. 9. Earlier: Oct. 7.

The comfortable footwear can apparently lead to "shoe entrapment" accidents at the tops and bottoms of escalators, attracting lawyers' interest. (Southern California Injury Law Blog, Oct. 1)(via Turkewitz). More: Earlier escalator suits on Overlawyered (h/t Ted) include February 2005, first and second posts.

A Labour-run municipal authority in Wales has sacked nine workers after discovering that they were spending up to two hours of their workday on eBay, but "union officials said that the employer had 'put temptation in their way' by allowing computer access to external internet sites. They called on all large employers to install a firewall program to prevent staff from being distracted by sites such as eBay, BBC Online and those that provide gambling." (Simon de Bruxelles, "Office staff lose their jobs after bosses catch them trading on eBay", Times Online, Sept. 21)(via ABA Journal).

I'm scheduled to join Fox News tomorrow (Tues.) morning around 9:40 a.m. Eastern to discuss the Lynne Stewart/Hofstra affair.

I'm scheduled to be on Bloomberg TV at 5 pm Eastern talking about the Stoneridge case. See also Point of Law October 6 for more links.

• The DC Examiner quotes both Walter and me in their series on corruption in the trial bar.
• Damned if you do, damned if you don't: privacy laws interfere with college mental-health treatment, which of course doesn't keep them from being sued when the treatment doesn't work. [LA Times; earlier in April; and May 2006]

• Charlie Weis didn't just lose his first several games of the season at Notre Dame; he also lost his silly medical malpractice case retrial. [Childs; February in Overlawyered]
• Ninth Circuit revives one claim in deep-vein thrombosis litigation against airlines. [Montalvo v. Spirit Airlines; San Francisco Chronicle; earlier on Overlawyered]
• Hugh Hewitt discusses tort reform with Overlawyered bloggers. [Ted on Hugh Hewitt; Walter on Hugh Hewitt]
• Overlawyered and Public Citizen agree: it's silly for law firms to try to copyright their nastygrams. [CL&P Blog]
• More on the Target website disability suit. [Open Market; Oct. 3 and links therein]
• Utah Supreme Court adopts common-sense product liability rule. [Products Liability Law Prof]
• DC City Council objects to recovering millions spent by city on medical care of patient who sued city after gouging out his own eyes. [DC Examiner; Washington Post; BLT]

• The most embarrassing thing Joe Stiglitz ever wrote? [Manne via Boudreaux; Cowen; Frum]
• Are Overlawyered readers "fringe element" "sycophants"? From the same blogger who says no one can criticize Lynne Stewart unless they personally know her, but I presume that's "For thee, but not for me"-style hypocrisy. [Scott Greenfield]

It would appear U.S. District Judge Robert Blackburn has reached the end of his patience with attorney Mark E. Brennan, and then some. Throwing out a $1.2 million verdict obtained by Brennan against the city of Denver on a claim of age discrimination against a firefighter, Judge Blackburn condemned Brennan's courtroom antics as "disgraceful" as well as "boorish and unprofessional":

"In over 19 years on the bench, I have seen nothing comparable," the judge wrote. "Such disrespectful cockalorum, grandstanding, bombast, bullying and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist, and, I fervently hope, will remain an aberration during the remainder of my time on the bench."

(Daniel J. Chacon, "Judge points to lawyer's antics in junking $1.2 million ruling", Rocky Mountain News, Oct. 6). No response from Mr. Brennan is recorded yet in the news coverage assembled by Google. The dictionary, incidentally, defines "cockalorum" as "boastful talk; crowing". P.S. Brennan's response, as reported in the Rocky Mountain News (via ABA Journal); also more details at On Point News.

Hofstra's Monroe Freedman announces the news (cross-posted from Point of Law; earlier coverage).

Good thing copyright infringement law isn't punitive or anything (David Kravets, "RIAA Trial Produces Playlist of the Century", Wired News, Oct. 4; more; Recording Industry vs. The People, Oct. 5; via Sullivan). Meanwhile, from the same state, same day, comes word that a school bus driver who pleaded guilty to drinking on the job has been fined $482. ("Bus driver pleads guilty to alcohol charge", AP/Minneapolis Star-Tribune, Aug. 5; Lileks via Reynolds). More: Declan McCullagh, "Why the RIAA should have won (though the fine was too high)", CNet, Oct. 5.

Updating our Jun. 22 item: Madison County, Ill. Circuit Judge Andy Matoesian has dismissed without prejudice a racketeering suit brought by class action lawyers against outside class members and lawyers who'd raised objections to the alleged inadequacy of a settlement. Attorneys Stephen Swedlow and Stephen Tillery, who'd reached a $63.8 million settlement with GlaxoSmithKline over its marketing of the drug Paxil, claimed the objections of lawyers N. Albert Bacharach, Jr. and Paul S. Rothstein and citizen Lillian Rogers were frivolous and extortionate. (Steve Gonzalez, "Matoesian dismisses suit against Paxil objectors", Madison St. Clair Record, Sept. 7).

The families of 9/11 victims who refused the Feinberg fund results and demanded more through lawsuits piously reported repeatedly that it wasn't about the money, that they just wanted to publicize the truth in their lawsuits against fellow victims such as the airlines and airports and multiple other deep pockets. Now that several cases have settled—and the plaintiffs have agreed to confidentiality clauses—Shaun Mullen and Ed Morrissey suggest that it was about the money after all.

I'm going to have much much more to say about this case, but for now, let us simply note that a jury found for the plaintiff in a lawsuit against McDonald's over her victimization by a perverted prank phone call, and awarded $6.1 million; we mentioned the incident in the comments to this lengthy September 2006 discussion of a similar lawsuit that was thrown out of court, and first noted the potential for litigation in April 2004, days before the actual incident took place in this suit.

What the press coverage to date has not mentioned is that the person who almost certainly perpetrated the incident was acquitted after the Kentucky case fell apart because the criminal defense attorney was able to impeach the witnesses by noting their financial stakes in the civil litigation decided today. Thus, thanks to our civil litigation system's quest for the deep pocket, the guilty party went free and a tertiary innocent victim got hit with damages. Which is precisely why it's a misnomer when trial lawyers rename themselves associations for "justice."

NYC Mayor Bloomberg's lawsuits against out-of-state gun dealers continue in New York City, thanks to Judge Weinstein (see Aug. 27, and links therein), but it's not all rosy for the mayor. As we previously reported, some of the gun dealers targeted by Bloomberg's sting are fighting back, and one of them won a victory last month:

Questioning the legality of tactics used by New York Mayor Michael Bloomberg to sue gun dealers, a federal judge in Atlanta has allowed a defamation suit by a Smyrna, Ga., gun shop against Bloomberg and other New York City officials to go forward.

Although the judge dismissed the Smyrna gun seller's negligence claims against New York officials, he declared that six of 13 potentially defamatory statements were actionable and cleared the way for a tortious interference with business claim.

[...]

Bloomberg, accompanied by other New York public officials, announced the results of the sting -- and the accompanying suit -- in May 2006 at a news conference. According to court records in the case, Bloomberg called the gun dealers "a group of bad apples who routinely ignore federal regulations," and Feinblatt said that the targeted gun dealers had "New Yorkers' blood on their hands." Forrester ruled that both of those statements are vulnerable to liability claims.

In other gun-related litigation, it seems that Gary, Indiana's lawsuit against gun manufacturers may continue, despite the fact that Congress passed a law explicitly banning such lawsuits; as in New York City's war on gun manufacturers, activist judges seem to want to interpret away Congress's words. (Last week, the Second Circuit Court of Appeals heard oral arguments in Manhattan in an appeal of Judge Weinstein's ruling allowing the city's lawsuit to proceed. (Earlier: Nov. 2005)

I've got a new piece up at City Journal (a slightly different version appears in today's New York Post) on the controversy over the disbarred lawyer's role as designated faculty at the upcoming Hofstra legal ethics conference. Thanks for links to Instapundit, NRO "The Corner", Brothers Judd (cross-posted from Point of Law).

Welcome BBC listeners; more on the blind shoppers' suit against Target here. Most of our material on this site originates in the U.S. but we do have a page of British items, and here are some more:

• Sheffield-based clown "Barney Baloney" finds it harder to amuse children now that liability insurers have vetoed his bubble machine and supermarkets bar him from using allergenic latex balloons [Daily Mail, Telegraph, AFP/Breibart, Lowering the Bar; video at Breitbart.tv]


• Good opinion column prompted by above: "the fear of legal action is not a fantasy of liberal killjoys ... what has really happened is that a small minority of the population have become accident-intolerant and are prepared to enforce their utopia through the courts." [Mark Lawson, Guardian]


• Furor over official ruling that man who killed London headmaster can't be deported back to Italy without violating his human rights "as he no longer has strong family ties there" [Telegraph]


• Scandals about groundless expert testimony in infant death prosecutions lead to calls for importation of Daubert rules, maybe even national institute of forensic science [Times Online]


• Labour government will propose bill to halt prosecution of homeowners who defend themselves with "proportional" force against burglars, home invaders [Telegraph] while Tories pledge to end "compensation culture" in school governance [likewise]


• State of UK law blogs, and link to a list of them [Nick Holmes via Kevin O'Keefe]


• Please, please don't: leading consumer group calls for adoption of U.S.-style class action system in which lawyers can represent everyone who doesn't affirmatively opt out [Times Online]

"A man was sentenced Thursday to more than five years in jail for his role in a multistate insurance fraud scheme in which federal prosecutors said he and his wife intentionally ate glass fragments and collected more than $200,000 in compensation." Ronald Evano, 49, and his wife defrauded restaurants, grocery stores, and insurers around the Northeast by claiming there was glass in the food they ate and obtaining liability settlements; they were treated more than a dozen times for glass ingestion, and proceeded to stiff the doctors and hospitals too, declining to turn over any of the settlement money to them. Cultural-sensitivity bonus: "Evano asked the judge for mercy, saying in court that he and his wife are members of the minority Roma community, and needed the money to pay for dowries and other costs associated with the marriages of his sons under cultural practices." ("Man jailed for 63 months in glass-eating fraud scheme", AP/Boston Globe, Oct. 4).

In the Fall 2006 semester, Brian Marquis got a C in his "Problems in Social Thought" class at the University of Massachusetts. Apparently attempting to prove he learned more about the problems than about the solutions, he immediately proceeded to file a federal class action lawsuit alleging that the school, its trustees, his professor, and various deans violated his constitutional right to get an A.

In a rare case of speedy resolution, it took the court just four months from the time the lawsuit was served on the defendants for the court to dismiss the case; that might have had something to do with the fact that Marquis was proceeding pro se, and drafted a semi-grammatical complaint with no legitimate causes of action. (For instance, he listed a racial discrimination statute as one of his causes of action, despite being white and failing to allege that race played any role in the matter.)

Still, that hardly means the suit was cost-free; as one of the defendants put it, "It ended up just wasting a lot of people's time and money." Moreover, Marquis says that he's thinking of appealing. But lest you think that Marquis just had sour grapes, he had a good reason for filing the suit:

Marquis - who salts his comments with "strike that" - acknowledged he was alarmed the C might lower his grade point average and make him less attractive to a law school.

The C has rendered his transcript a "dismal record of non-achievement," his suit said. Marquis, who enrolled at UMass-Amherst in spring 2006, said he has roughly a B-plus average.

(h/t Kerr @ Volokh)

For identifying Overlawyered as one of the top ten legal blogs. We're invited to name our ten favorite. I'd be remiss if I didn't identify Point of Law, our sister blog, but that seems poor sport. Here's my ten, though, of course, Walter's may differ:

• Drug and Device Law Blog: Beck and Herrmann do such a good job covering pharmaceutical litigation in detail that I've virtually stopped posting on the subject. It's one of two blogs where I'd link to every single post they made if it didn't quickly become redundant to do so.


• Insurance Coverage Blog. David Rossmiller's blog is the other one that has occupied the field: he covers insurance litigation so thoroughly that it feels redundant for me to post on the subject, and he affirmatively breaks stories in Katrina litigation and the Scruggs contempt hearing. We're glad to have been able to add David to Point of Law.


• The Volokh Conspiracy: An obvious choice. Intelligent discussion of the law by some of the nation's top law professors, while fairly acknowledging opposing arguments. Is it wrong that I aspire to being a Conspirator?


• How Appealing; WSJ Law Blog; and Above the Law. Three more obvious choices for breaking news, but I read them daily, and I would be remiss if I didn't mention them in my top ten.


• The 10b-5 Daily. Lyle Roberts provides excellent coverage of securities litigation issues.


• Ideoblog. I don't always agree with Larry Ribstein (who also blogs at Point of Law) but his discussion and thoughts on corporate legal issues are always interesting.


• Legal Pad. That's the Roger Parloff version; several blogs have similar names. One of my favorite legal journalists, and the original reporting done on this blog is top notch.


• Prettier Than Napoleon. My top ten has to have one non-obvious choice if it's going to be at all interesting. Only a small portion of attorney Amber Taylor's blog is about legal issues, but her daily posts are provocative, intriguing, and well-written, and the comments section community is surprisingly productive for a blog.

Update: My, this meme is widespread, we're honored to also be selected by The Common Scold, What about clients?, and May it Please the Court. Eric Turkewitz also names us to his top ten, but I have to disagree with his characterization: Overlawyered is a pro-consumer blog, as excessive litigation hurts consumers. We criticize socially wasteful litigation whether it comes from big business or the traditional plaintiffs' bar.

Update: more encomiums from Lowering the Bar; f/k/a; Lawbeat; and QuizLaw.

I'll be on the BBC World Service today to discuss (more).

Hans Bader comments. Overlawyered earlier commented on the Isiah Thomas sexual harassment case October 2.

Covering one's legal posterior in emergency medicine: "This ER doc was about to turn an $800 ER visit into a $4,000 hospital admission. Now imagine this happening all over the country in multiple variations and degrees of absurdity tens of thousands of times EVERY DAY." (Chris Rangel, Sept. 27). Plus: London ambulance driver visits San Francisco, is chagrined to see paramedics engage in elaborate immobilization of minor collision victim (Random Acts of Reality, Aug. 14 and Aug. 16; via KevinMD).

Following breathless press exposes of the "payday lending" business near military bases (they charge high interest rates! It's a bad deal if you've got access to conventional credit!) a new federal law sharply restricts the interest that can be charged to military borrowers. This report from Utah finds lenders responding by simply refusing to make loans to members of the military. A critic of the industry, Linda Hilton of the Coalition of Religious Communities, says she's glad the option is disappearing and recommends that if service personnel find themselves in financial straits "then they ask their church, military relief groups, family or others for help". More great moments in predatory lending law: Oct. 17, 2006 (cross-posted from Point of Law; & welcome Marginal Revolution readers).

Have you noticed the annoying tendency of seat belts in certain vehicles, such as airport limos, to sink so deep into the cushions that you can crack your fingernails trying to pull them out? Now a lawsuit against a Ford dealership seeks to blame that phenomenon for the 1997 injuries that ended the career of Detroit Red Wings hockey star Vladimir Konstantinov and team masseur Sergei Mnatsakanov. The two were seriously injured when their driver, who was driving on a suspended license following a long series of roadway infractions, veered off Woodward Avenue into a tree. Neither of the injured men was wearing a seat belt, which they blame on the "design defect" that prevented the belts from being "easily accessible". The car dealership, Findlay Ford Lincoln Mercury, "argues it did not manufacture the limo or carry out modifications that were made to it and the dealership had no reason to know about or be liable for any alleged defects." (Paul Egan, "Court to hear arguments in Konstantinov crash suit", Detroit News, Aug. 22). Also see Nov. 25 (other litigation arising from crash).

Thanks to Michelle Malkin at her #1 conservative blog for those kind words.

In a major victory for disabled-rights activists, federal judge Marilyn Hall Patel has ruled that the National Federation of the Blind can go to trial against the Target Corp. on charges that its online shopping website should be redesigned to make it easier for blind computer users to use. (Bloomberg, Reuters).

We've covered the Target suit Feb. 8 (with enormous reader discussion), Oct. 4 and Oct. 27 of last year. Existing federal court precedent, in the Southwest Airlines case, discourages the most far-reaching demands for web "accessibility"; the Target case, which is being heard before a judge who's considered relatively liberal, is important because disabled-rights activists hope to use it to counter and eventually reverse the Southwest precedent (see Jan. 8, 2004). For reasons why a victory by the activists might lead to unprecedented infringements on the freedom to conduct business or even publish online, see my May 2000 Reason column and my House testimony of earlier that year, and earlier posts on this site (& welcome Michelle Malkin readers).

• Yet another Apple suit, this time on behalf of user who wishes iPod and iTunes were more compatible with other song vendors and devices [Miami Herald/ILR]


• Fairview Heights, Ill. alderman says town was "deceived" into serving as lead plaintiff in class action against Orbitz, Priceline, Expedia and other online travel firms [Madison County Record]; More: here and here


• "Evasive", "bad faith": federal judge slams health insurance lawyers for stalling suit by docs [Phila. Inquirer; Plus: their side @ Law.com]


• Plastic water guns draw ire of politicos in Albany, N.Y. [Times-Union via Nobody's Business]


• High lawyers' fees said to be pricing middle class Canadians out of the justice system, but it must be said the numbers cited sound pretty low by U.S. standards [Maclean's]


• Flickr makes it easy to grab and reuse strangers' photos, and legal sorrows ensue [NY Times]


• Jack Thompson tries to get federal judge Jordan removed from hearing one of his lawsuits against the Florida Bar [GamePolitics.com; & yet more]


• New at Point of Law: trial lawyers deem "slanderous" ads featuring fictional law firm of Sooem, Settle & Kashin; Business Week cover story on wage/hour suits; John Edwards comes out again for "certificate of merit" med-mal reform; replace your old kitchen cabinets and get lead paint companies to pay; and much more;


• Some New York lawmakers think secondhand smoke is just as bad for you as actually being a smoker [Siegel via Sullum; more on recent smoking bans, complete with culturally-sensitive hookah exception]


• "Disability Math" video explores paradox of how employment fell among handicapped after enactment of the ADA [Dubner, Freakonomics; more (now with more direct Freakonomics link)]


• Class-action lawyers sue over kids' Pokémon card trading craze, claiming it's illegal gambling [Eight years ago on Overlawyered; Milberg Weiss angle here]

Granted: sexual harassment is wrong, and we at Overlawyered do not approve of it. I have no reason to side with one party or the other in the he-said/she-said dispute in the lawsuit against Isiah Thomas, James Dolan, and the owners of the New York Knicks, MSG, though one questions the relevance of Stephon Marbury's sexual exploits with a third party and whether that salacious testimony perhaps prejudiced the jury. But even if one agrees that everything Anucha Browne Sanders alleged occurred? Well, that $11.6 million award—which does not even include a penny of economic damages—is outrageous. Hey, I'll let Isiah Thomas call me a bitch for a hundredth that amount. Given the Supreme Court's command that punitive damages have some reasonable relationship to compensatory damages, it is hard to understand why a jury was allowed to make an eight-digit award when there has yet to be any compensatory damages established.

In Rancho Cordova, Calif., a 50,000-square-foot kids' indoor sports complex has closed operations following a lawsuit over its lack of wheelchair access. A financial angel, however, has offered to donate a $35,000 lift for free, and Basketball Town's executive director is cautiously optimistic, saying there is a 50/50 hope that it might reopen. "The original lawsuit was filed by a Solano County man who is a quadriplegic. He says he was unable to attend his nephew's birthday party on the mezzanine floor last year. Since then, the building's owner and the tenants who run Basketball Town have clashed over who should pay for the retrofitting." Derrick Ross of Suisun City has "filed similar lawsuits against two Northern California businesses in the last two years over Americans with Disabilities Act compliance issues." (Stan Oklobdzija, "Sports complex to close", Sacramento Bee, Sept. 30; Dave Marquis, "Basketball Town's Future in the Air", Oct. 1; Chuck Shepherd's News of the Weird Daily).

On yesterday's radio program, host Hugh Hewitt asked me about the various GOP contenders' stands on liability reform. I replied that for the most part they were clumped pretty closely together in strongly backing federal-level reform measures, the exception being Sen. Fred Thompson who has voted against several Congressional proposals to limit liability and has been backed fairly strongly by plaintiff's lawyers in his campaigns. I added that Thompson has defended his votes on federalist principle and that his arguments on this point deserve a fair hearing; there are often plausible (and even compelling) federalist reasons to refrain from nationalizing areas of liability where the ultimate cost of state-court errors falls within states' own borders rather than being dumped on residents of other states.

Those interesting in pursuing these questions can find more on Thompson's views here, here, and here; on Giuliani's here and here (and ritual disclaimer); on Romney's here and here; and on Rep. Ron Paul's, here (opposes Congressional involvement in malpractice reform on federalist grounds).

For $800,000, one could buy a nice house, two thousand iPhones, about five days' worth of Alex Rodriguez's contract, or 1,700 hours of class action lawyers producing absolutely nothing of any value to anybody.

In January 2006, The Smoking Gun reported that James Frey's A Million Little Pieces memoir had significant inaccuracies. After a few days of denial, Frey admitted that the book was inaccurate. The publisher, Random House, immediately posted a statement to that effect on its website and offered a refund to anybody who was upset. Approximately 12 seconds later, hordes of trial lawyers copied down the allegations from The Smoking Gun's website and rushed to the courthouse to file "consumer fraud" class action lawsuits against Frey and Random House. They demanded... that Random House post a disclaimer and give refunds to anybody who was upset. In a sane world, those lawyers would have been sanctioned for filing a frivolous lawsuit, and then sanctioned again for wasting everyone's time by asking for a remedy that had already been achieved.

But as we know, this world is Overlawyered, so, more than 1,700 hours of trial lawyer time later, Random House agreed to settle the case for "up to" $2.35 million, to cover refunds, costs, and attorneys fees for the up-to-3.5 million people who purchased the book before Frey admitted it was inaccurate.

And now the other shoe has dropped, exactly as Walter predicted in May. The deadline for class members to submit their claims was October 1st, and according to filings by the class lawyers, a grand total of 1,345 people had done so by September 17th; based on past experience, they expected another 250 submissions in the last two weeks before the deadline. Yes, that total would be less than one-half of one percent of those who bought the book -- the alleged "victims" of the alleged "consumer fraud."

But despite this dismal response rate, the class action lawyers have now submitted their fee request... $783,333.33 -- or one third of the imaginary $2.35 million settlement. Plus $14,000 in expenses. The lawyers defend this fee as reasonable on the grounds that they spent those 1,700 hours preparing their case. (h/t The Smoking Gun) $800,000, and 1,700 hours -- for a case where the research was all done by the Smoking Gun before the suit was filed, and the only thing the lawyers had to do was create enough of a nuisance to induce Random House to settle.

For those of you scoring at home, assuming a $15 refund for each claimant, that would be a total recovery of approximately $24,000 for the class members. And $800,000 for the lawyers. Or, in other words, about 3% of the recovery for the consumers, and 97% for the lawyers. Ain't America grand?

Mississippi state auditor Phil Bryant "has issued a demand letter for recovery of the $14 million in legal fees paid by MCI to two law firms in the wake of the state's $110 million settlement with MCI in a 2005 tax fraud case." The Langston and Lundy & Davis law firms "were hired as outside counsel to represent the state by current Attorney General [Jim] Hood. Langston has been identified as one of Hood's largest campaign contributors, a reality that Langston doesn't deny." The two firms were then cut into the $14 million as part of the negotiated settlement, but Bryant says the money belonged to the public and should have gone through the appropriations process. The twist: to enforce the state's rights in the matter, Bryant will apparently have to call on legal support from the office of AG Hood himself, and you have to wonder how cooperative he'll be. (Sid Salter, "Langston: State asks recovery of legal fees", Jackson Clarion-Ledger, Sept. 23; "State parties bring smack down", Biloxi Sun-Herald, Sept. 23). More on the furor: Point of Law, May 13 and May 23, 2005.

Middle linebacker Odell Thurman of the Cincinnati Bengals and Tampa Bay Bucs cornerback Torrie Cox, both suspended for repeat violations of the National Football League's substance abuse policy, filed complaints with the Equal Employment Opportunity Commission alleging discrimination on the basis of being regarded as disabled, with alcoholism being the disability. The Americans with Disabilities Act has been construed to prohibit discrimination against rehabilitated alcoholics, but not to protect current substance abuse. However, the line distinguishing behavior regarded as current from that regarded as past can be hazy. (Len Pasquarelli, "Bengals' Thurman, Bucs' Cox file discrimination claims against NFL", ESPN.com, Aug. 17). Paul Secunda discusses at Workplace Law Prof (Aug. 23).

"Some San Antonio apartment complexes are refusing to rent to people with tattoos and body piercings." How long before someone proposes passing a law against such bias? ("Some SA Apartments Banning Tattoos", WOAI, Sept. 26). More: Coyote.

I'm scheduled to go on shortly after 6 pm Eastern, and Walter is scheduled at 7 pm Eastern on the popular national radio show. Find your local station on-line.

Are you an Overlawyered reader and a student in the greater Washington DC area? Do you have any interest in interning for the new AEI Legal Center for the Public Interest? We're looking for someone to put in 15-20 hours a week on administrative matters, but working at AEI (one of Washingtonian magazine's fifty-five great places to work in DC) also gives one the opportunity to attend amazing public-policy conferences and do some writing as well if one is inclined.

Apply through the AEI website.

"Two Sonics and Storm season-ticket holders plan to file a lawsuit today, accusing the new team owners of defrauding ticket buyers who believed assurances that they intended to keep the teams in Seattle." The franchises have announced plans to move to Oklahoma City, but some fans say it won't be as much fun to watch them in the mean time knowing they're destined to leave. Seattle personal injury lawyer Michael Myers is representing Carolyn Bechtel and Patrick Sheehy in the suit, which was arranged by Save Our Sonics and Storm, a local group trying to block the move. (Jim Brunner, Seattle Times, Oct. 1). Separately, Seattle city officials have sued on different grounds: "The city wants a court order forcing the team to play out its lease at KeyArena through September 2010 instead of paying a cash settlement to leave early." Owners say the team lost $17 million playing in Seattle last year. ("Blame flies as city sues Sonics", Sept. 25).

Adam Liptak's latest Sidebar column reviews the case of an asbestos plaintiffs' lawyers' doctor who should know better, as he testified in the Judge Jack silicosis proceedings. I have uploaded the motion to exclude Dr. Segarra's testimony.

A month ago St. Louis Post-Dispatch columnist Bill McClellan wrote a less-than-respectful column reporting on the course of a controversial defamation suit filed by disbarred local attorney Amiel Cueto. Now Cueto has notified McClellan that he regards him as having acted as an "agent" of the defendant in the suit, the Madison-St. Clair Record, and he's threatening him with compulsory process as a witness. McClellan, whom Overlawyered readers will remember as having been the target of appalling legal bullying from Metro-East plaintiff's lawyers in the past, retains his cheerful tone in a new column. (Bill McClellan, "Amiel Cueto has a gift, or maybe he doesn't", St. Louis Post-Dispatch, Aug. 31; "Accusations, lawsuit make me nostalgic", Sept. 30).

The underlying action arose from an item that ran in the U.S. Chamber-supported Madison-St. Clair Record on Jan. 30, 2006, alleging that Cueto, who served six years in prison on an obstruction of justice conviction, had been spied at a meeting of St. Clair County judges. "Once one of the most powerful lawyers in Southern Illinois, Cueto was said to have 'owned' fifteen of St. Clair County's seventeen judges in the mid-1990s," the column further asserted. Cueto sued the paper, in a hard-fought action currently in process. In other actions, as Ted noted Feb. 26, Cueto has sued the Illinois Civil Justice League and its political action committee over a campaign ad, and a local resident over a letter to the editor in the Belleville, Ill. News-Democrat (Malcolm Gay, "Power Broken", Riverfront Times, Sept. 5; Ann Knef, "Amiel Cueto takes aim at ICJL", Madison-St. Clair Record, Feb. 20; ICJL, Dec. 4, 2006).

Canada has moved toward more liberal allowance of class-action litigation in recent years; it has also, like most non-U.S. countries, chosen to retain its historic principle of "loser-pays", or "costs follow the event", fee shifting. What happens when prevailing defendants seek an award of costs against losing class plaintiffs, assuming that the individual class members cannot be reached for the purposes of assessing costs? In a bitterly fought lawsuit over unclaimed veterans' pension accounts, the federal government in Ottawa went after three class lawyers for C$4 million in costs out of their own pockets. The Ontario Court of Appeal denied its petition, but the lawyers say they feel chilled from organizing more such suits. In all, the federal government spent an estimated C$6 million in legal fees and C$10 million in other costs successfully defending the pension suit. (Randy Richmond, "Ottawa claimed denying justice", London Free Press, Sept. 20). Earlier London Free Press reports by Randy Richmond on underlying lawsuit: "One Last Battle: Dark Politics", Oct. 30, 2006; "An ugly fight for veterans' benefits", Oct. 31.