April 10 — “The love children of Flight 261”. “Families of four men killed in the crash of Alaska Airlines Flight 261 en route from Puerto Vallarta, Mexico, claim they are victims of a cruel scam. Attempting to cash in on multimillion-dollar wrongful-death lawsuits, claimants in Guatemala said the men had all secretly fathered children in that country. The families say the lawyers representing the phony heirs knew, or should have known, their clients’ claims were fraudulent.” We covered this story (via the San Francisco Chronicle and Aero News Network) back on Nov. 29, but this new piece adds some telling details: for example, two of the (genuine) survivor families say they had to spend $200,000 to fend off the supposed Guatemalan heirs, and they wonder why the American lawyers who represented those claimants shouldn’t be held financially accountable for the harm their lawyering inflicted, especially since two of these lawyers — Robert Parks and Edgar Miller of Coral Gables, Fla., — just happen to have represented all four sets of supposed secret Guatemalan children to file claims in connection with Flight 261 (Bob Van Voris, National Law Journal, Apr. 9). (& see Aug. 3).
April 10 — Canada’s secret legal aid. In the United States, the Legal Services Corporation subsidizes litigation efforts meant to push the law in a “good” or “progressive” ideological direction, and has accordingly long met with criticism from those of us who are not convinced that the proposed changes in the law are always so great and wonder why everyone’s tax dollars should be handed over to one side of these debates to pursue essentially ideological court struggles. Our neighbor to the north has hit on a handy way to keep its aid program for “law-reform” litigation from being as controversial as ours: it simply refuses to disclose the recipient list (Scott Edmunds, “Recipients of Ottawa’s legal aid kept secret”, Canadian Press/National Post, Feb. 26).
April 9 — By reader acclaim: “Clowns told to get custard pie insurance”. Clowns in Britain are “terrified to the tips of their red noses” that unappreciative patrons will sue them over injuries from thrown pies and water-squirting, or more hazardous acts such as those involving fire and unicycles. Ian James, who heads the performers’ trade union, says that while none of his colleagues in the United Kingdom have yet been sued, “we are worried now that British audiences may be becoming like American, ready to sue anyone for anything.” (Alan Hamilton, “Stop clowning around, clowns told”, The Times (UK), April 6; Reuters/Yahoo, Apr. 6).
April 9 — Plastic cup blamed for child’s autism. A “personal injury lawyer is threatening a lawsuit alleging a plastic drinking cup caused a child’s autism … Dallas-based lawyer Brian R. Arnold wrote Playtex Products, Inc. in January alleging that a toddler became seriously ill and, eventually, ‘began to exhibit autistic behavior,’ after drinking from a plastic spill-proof cup made by Playtex. Arnold claims the spill-proof cup was designed in a defective manner that allowed bacteria and mold to build in the cup. Alleging the bacteria caused the child’s condition, Arnold accused Playtex of negligence in distributing a defective cup and demanded $11 million in damages.” Although the causes of autism remain unknown, “there is a network of ‘experts’ who are ready, willing and able to support such a wild claim”. (Steven Milloy, “Quack Attack! The Case of the Dangerous Sippy Cup”, Fox News, Apr. 6).
April 6-8 — “Court upholds workers compensation for drunk, injured worker”. “A man who got drunk on a business trip and suffered severe frostbite after passing out in very low temperatures should be entitled to worker’s compensation, the Wisconsin Supreme Court ruled Wednesday. The court in a 4-3 decision upheld the ruling of the Wisconsin Industry Review Commission, which said William Larsen was in northern Wisconsin expressly for work, but it also reduced Larsen’s compensation by 15 percent, since he was injured while he was intoxicated.” (“Court upholds workers compensation for drunk, injured worker”, AP/Milwaukee Journal Sentinel, Apr. 4; Jessica McBride, “Worker prevails in frostbite case”, Apr. 4).
April 6-8 — Suing “The Sopranos”. “An Italian-American lawyers group says it will sue the makers of HBO’s ‘The Sopranos’ series today for offending the ‘dignity’ of Italian-Americans by implying most of them are mobsters. … [citing] Section 20 of Illinois’ Constitution [which] reads in part: ‘Communications that portray criminality, depravity or lack of virtue in . . . a group of persons by reason of or by reference to religious, racial, ethnic, national or religious affiliation are condemned.”” (Abdon M. Pallasch, “Stung by ‘Sopranos'”, Chicago Sun-Times, April 5; Matt Zoller Seitz, “Advocacy group claims series runs afoul of the law”, Newark Star-Ledger, Apr. 5) (Update Sept. 21-23: judge dismisses; Jul. 12-14, 2002: case dropped after appellate court upholds dismissal).
April 6-8 — Target: Alka-Seltzer. Until November, phenylpropanolamine (PPA) “was a ubiquitous ingredient in over-the-counter cold remedies and diet aids found in practically everyone’s medicine cabinet,” including Alka-Seltzer, Contac, Tavist-D, Robitussin, Acutrim and many more. Now it’s been withdrawn following a study suggesting that its use may correlate with a slightly elevated (though still very small) risk of stroke. Trial lawyers, who expect thousands of suits to result, are vigorously advertising for clients who suffered strokes and had previously used common over-the-counter remedies containing PPA — and if it isn’t easy to sort out the genuine propter hocs from a haystack of specious post hocs, well, that’s what we have jury trials for, right? (Bob Van Voris, “Plaintiffs Rev Up New PPA Drug Lawsuits”, National Law Journal, March 19; FDA information page; list of OTC products (Aphanet)).
April 5 — Selling out the class? “Angry plaintiffs’ lawyers have accused other members of the plaintiffs’ bar of colluding with H&R Block and Beneficial National Bank to settle litigation allegedly worth more than $1 billion for just $25 million.” The underlying litigation charged that Block violated federal truth-in-lending laws and state laws by not adequately disclosing to its customers that it got a referral fee and other financial benefits when they took out “Refund Anticipation Loans”. Now a group of plaintiffs’ lawyers allege that with the litigation reaching a dangerous stage in other courts, Block negotiated a quick and confidential settlement of the class claims with a group of Chicago plaintiffs’ lawyers who cut the deal without conducting discovery or consulting with experts. The Chicago lawyers heatedly deny that the settlement was collusive; a federal district judge found in their favor, rejecting the objectors’ arguments and approving the settlement, but the objectors have appealed to the Seventh Circuit. (Elizabeth Amon, “Class Action ‘Collusion’ Claimed in H&R Block Appeal”, National Law Journal, Mar. 26) (see also Dec. 3).
April 5 — “Lungren now a paid advocate for his former foes”. Former California Attorney General Dan Lungren since leaving office has been “doing something that has surprised detractors and admirers alike. He’s being paid to help his longtime political adversaries — a group of plaintiffs’ attorneys. Lungren, a Republican, testified late last month that he has earned $204,000 in 11 months as an expert witness and consultant to the Castano group of 60 law firms. The firms are trying to win billions of dollars in lawyer fees for their role in suing tobacco companies.” At the time, Lungren opposed having the state hire private tort firms to sue — “We are simply not selling tickets to a lottery for law firms,” he said in 1997 — but now he testifies that the lawyers’ efforts were vital. “It’s further proof that the tobacco fee awards are so astronomical that there’s enough money for everybody, even Lungren,” said John Sullivan, president of the Civil Justice Association of California, which criticizes litigation excesses. (Bill Ainsworth, San Diego Union-Tribune, March 14 — search on “Castano”).
April 3-4 — Patenting the web? A small Chicago firm named TechSearch holds a patent which it believes entitles it to exclusive rights over some of the basic image-serving processes underlying the World Wide Web, which means that it considers all the rest of us as infringing on its property by publishing sites like, well, like this one. It manufactures nothing and has no lab; instead, its business plan consists of demanding money from companies to “license” their web use, and it has extracted payments in the $30,000-$80,000 range from several big firms including Walgreen and Sara Lee. It has also sued Intel Corporation for libel and slander because an Intel spokesman told the Wall Street Journal that it “exists solely for the purpose of purchasing patents and extorting funds from another company.” (Ian Mount, “Would You Buy a Patent License From This Man?”, eCompanyNow, April). Critics “fault the PTO [Patent and Trademark Office] for approving ‘inventions’ that are obvious, trivial or simply representative of the Internet version of well-known business practices”. (William C. Smith, “Patent this!”, ABA Journal, March). The report that Bill Gates is staking an intellectual property claim to the numbers “0” and “1” is, however, a parody (Microsoft Patents Ones, Zeros”, The Onion). Not a parody: the St. Louis Business Journal purports to sell, for $5 a throw, the right to link to the articles it has made publicly accessible on the Web (iCopyright clearance form).
April 3-4 — Asbestos claims bankrupt W. R. Grace. Another historic name in American industry goes the way of Owens Corning, Armstrong World Industries, GAF and many others. According to the Washington Post, “Grace’s asbestos liabilities largely stem from commercially purchased asbestos added to some of its fire protection products. The company said it stopped adding any asbestos to its products in 1973. Grace to date has received more than 325,000 asbestos personal injury claims and has paid $1.9 billion to manage and resolve asbestos litigation. In 2000, asbestos claims against Grace increased 81 percent from 1999 with even higher increases for the first three months of 2001.” According to Grace and other defendants, most new claims entering the system are filed by persons who have no illness or impairment but seek financial compensation simply for having been exposed to the mineral. “We believe that the state court system for dealing with asbestos claims is broken, and that Grace cannot effectively defend itself against unmeritorious claims,” said company president Paul J. Norris.
As lawyers redirect claims against remaining defendants, each new bankruptcy increases pressure on those still solvent. Leading wallboard maker USG, which says it stopped making products containing asbestos 25 years ago, took an $850 million charge in January to cope with spiraling liability. Three years ago Sealed Air Corporation, maker of bubble wrap, bought a W.R. Grace subsidiary that made plastic packaging; although that subsidiary had never been involved with asbestos, lawyers are now going after Sealed Air on the theory that all of Grace’s liabilities should convey to it along with the business it bought. “To an indeterminate degree, the threat of lawsuits could be driving the widening of spreads between corporate and government bonds, says John Puchalla, a Moody’s economist.” The rising capital premium needed to overcome aversion to legal risk in turn raises the cost of doing business in the United States, the Economist of London points out, in a recent survey of rising American litigation costs (“The people v. America Inc.”, The Economist, March 22).
SOURCES: Sabrina Jones, “W.R. Grace files for bankruptcy”, Washington Post, April 2; “Asbestos Litigation Costs Burden Grace”, March 19; “Lawsuits Cloud Grace’s Future”, March 7; “Alarm Sounded Over Asbestos in Insulation”, Aug. 15, 2000; Tom Shean, “USG Corp. takes $1 billion hit from asbestos suits”, Norfolk Virginian-Pilot, Jan. 12. Among the many other companies facing widening claims are auto parts maker Dana Corp. and building materials maker Georgia-Pacific.
April 3-4 — Trademark litigation hall of fame. “The Detroit-based Love Your Neighbor Corp. has sued a charity, Love Thy Neighbor Fund Inc. of Fort Lauderdale, Fla., for trademark infringement. … Among the allegations is the complaint that Love Thy Neighbor caused Love Your Neighbor to suffer ‘lost sales and profits it would have made but for these wrongful acts.’ At least 40 U.S. organizations use ‘love thy neighbor’ in their names.” (National Law Journal, via Progressive Review, April 2). Update: June 20 (lawyer writes menacing letter to activist who criticized case)
April 3-4 — “State running background checks on new parents”. Bound to happen dept.: “A new state program intended to protect newborn babies runs background checks on their parents to determine whether they have a history of child abuse that resulted in termination of their parental rights.” “The whole idea here is prevention,” said an official with the state’s Family Independence Agency, which certainly boasts an Orwellian name. “We want to identify those parents who have been abusive in the past and try to head off any possible incidents of future abuse.” (AP/Detroit Free Press, March 23).
April 2 — Lawyers (and docs) block cleanup of Gotham crash fraud. New York’s wide-open climate of accident fraud (more) results in some of the highest car insurance rates in the country. But most ideas for doing something about it, such as stiffening penalties for fraud ringleaders and requiring timely notice of claims to automobile insurers so they can better investigate dubious allegations, face likely defeat in the state Assembly in Albany, where trial lawyers are leading donors to the Democratic majority. Nor does it help that organized doctors join with lawyers in resisting attempts to regulate the running up of hugely inflated bills for post-accident therapies, which are then foisted on auto insurers. (Steven Malanga (Manhattan Institute), “Albany’s War on Drivers”, New York Post, March 29).
April 2 — Priest can sue church over circumstances of suspension. A Massachusetts appeals court has reinstated several claims in a lawsuit by a former priest who “charged he was slandered when his diocese made public an alleged extramarital sexual relationship and subsequent suspension.” The Rev. James Hiles had sued the state’s Episcopal diocese after it suspended him following charges of sexual misconduct; a lower court judge threw out much of his suit, citing a longstanding doctrine by which courts are supposed to refrain from interfering in church administration. A state appeals court, while agreeing that Hiles could not sue over his removal as such, reinstated his action against church officials for allegedly conspiring to vilify him, Hiles’s attorney having argued that defamation is a “secular tort” which courts should feel at liberty to address even in a context of church administration. The case now goes back to the lower court. (Denise Lavoie, “Court says case not just a church matter”, AP/San Francisco Chronicle (SFGate.com), Mar. 28; Michael Paulson, “A Brockton ex-rector wins part of suit against diocese”, Boston Globe, Mar. 29).
April 20-22 — Quite an ankle sprain. Michele Nations, 26, who sprained her ankle five years ago when she tripped into a hole at a municipal park in Tucson, has now been awarded $450,000 by a local jury. Nations’ attorney “says the case hinged on the city’s responsibility to post adequate warning about burrowing animals [such as squirrels and gophers] and to provide a safe alternative to dodging holes and caved-in tunnels.” An attorney for the city differs, and calls the outcome astonishing: “You would think in a park — in a natural space — people should have to watch where they’re going.” (April 19: Maureen O’Connell, “Gopher hole may cost city $450K”, Arizona Daily Star; “Jury awards Tucson woman who stepped into hole at a park”, AP/Arizona Republic). (DURABLE LINK)
April 20-22 — Thank you, Your Honor. The May Brill’s Content has a cover story (teaser only online) entitled “Human Portals: How people with an obsession — and a website — are upstaging big media”. It tells how weblogs, link-rich sites regularly updated and often zeroing in on a specialized theme, are the new Big Thing in online media; typically “curated by one person”, according to editor in chief David Kuhn, they “could teach big media portals a lot about engaging their audience”. Happy to read all this, we were particularly pleased to turn to the sidebar feature in which the magazine surveys a group of public luminaries about their favorite websites, which range from eBay (Nora Ephron) to 10KWizard.com (Gretchen Morgenson). And here’s Alex Kozinski, distinguished federal judge on the Ninth Circuit U.S. Court of Appeals, on his favorite: “Overlawyered (overlawyered.com) provides pointers to legal-system horror stories: the accused rapist who pockets disability checks for his ‘sexual compulsion’; the drunk who climbs a voltage tower and sues the utility company when he gets injured; the guy who murders his mom and sues his shrinks for not stopping him. The site is run by Walter Olson, who likes nothing better than reporting on legal overkill, and he’s compiled serious research tools for anyone interested in trends and abuses within the civil litigation system.” Thank you, Your Honor! (DURABLE LINK)
April 20-22 — Comparable worth in Maine. Despite widespread criticism of the idea from economists and others, Maine has enacted new rules opening private employers to a serious threat of legal action if they pay less to a worker of one gender than to a worker of the opposite gender “for comparable work on jobs with comparable requirements related to skill, effort and responsibility”. Some other states have had “comparable worth” or “pay equity” laws on the books, but Maine is the first to enact regulations giving such laws serious teeth. “We won”, said an official with the state AFL-CIO. “The business community has not awakened to the fact that this is going to cost them.” Disagreements are all but inevitable as to whether (say) secretaries’ work should be regarded as just as valuable as that of (say) truck drivers, and the Maine law will allow lawyers to march into such controversies with class action suits for unlimited damages — won’t that be fun? The state chamber of commerce did not oppose the enactment. (“Equal pay advocates tout new state rules”, AP/Bangor Daily News, April 4; “Maine Becomes First State Requiring Pay Equity”, Women’s ENews, April 3 (via Freedom News Daily); Maine Equal Justice Partners, 2000 Docket Report (scroll down to “Pay Equity”)).
SEE ALSO May 17, 2000; Diana Furchtgott-Roth, “Suicide Mission: The Union Push for Comporable Worth”, Capital Research Center Labor Watch, Dec. 1999; Lawrence W. Reed, “Comparable Worth or Incomparably Worthless?”, Mackinac Center, Sept. 6, 1994. The late Clarence Pendleton Jr., chairman of the U.S. Civil Rights Commission, called comparable worth “the looniest idea since Looney Tunes came on the screen” (Simpson’s Contemporary Quotations #519). (DURABLE LINK)
April 20-22 — “Lie-tery winners”. All sorts of basically decent people, from cops to grandmothers, would never think of shoplifting or forging checks but do seem to think it’s okay to lie in lawsuits. “Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial — especially witnesses in tort cases. … the oath has become virtually meaningless,” writes Kirkland & Ellis partner Michael Jones (“Lie-tery Winners”, National Law Journal, March 22).
April 18-19 — Mistletoe dangerous even when absent. LeRoy Crawford says his female boss at the New York Stock Exchange behaved seductively and made remarks such as “if there were mistletoe, I would give you a kiss,” when giving him a Christmas bottle of cologne. Things went from bad to worse, and he now wants $1 million in compensatory damages and $1 million for “special damages as a result of physical and mental injury”. (Peter Noel, “Sex on the floor”, Village Voice, April 11-17).
April 18-19 — Randomness of case assignments questioned. San Francisco assigns cases for pre-trial motions to one of two judges, and it seemed that the plaintiff’s firm of Wartnick, Chaber, Harowitz & Tigerman kept getting lucky by drawing the more favorable judge to hear its asbestos cases. Lucky, indeed: over the past two years, 94 percent of the firm’s cases were assigned even numbers, instead of the odd numbers that would have sent the cases to the other judge. (Dennis J. Opatrny, “Playing the Numbers”, The Recorder, April 9).
April 18-19 — “Guests sue inn for overbooking”. When five Massachusetts couples arrived at Vermont’s romantic Woodstock Inn for an investment club weekend last April, they found the inn had inadvertently overbooked its rooms, and three of the couples had to stay at a local B&B. The inn proprietors were terribly apologetic and treated all five couples to the weekend’s lodging for free, as well as giving them a free dinner. Nonetheless, four of the couples are suing for a sum “substantially in excess of $25,000” in a Boston court. (AP/Boston Globe, April 17).
April 18-19 — Tempest in an arsenic-laced teacup? President Bush deserves credit for standing up to demagogues by pulling back this bad regulation: Steve Chapman, “Who’s really poisoning our drinking water?”, Chicago Tribune, April 12; George Will, “The costs of moral exhibitionism”, Washington Post, April 15; Jason K. Burnett and Robert W. Hahn, Brookings/AEI Joint Center study, “EPA’s Arsenic Rule: The Benefits of the Standard Do Not Justify the Costs”, abstract, Jan. 2001; Mercatus Center (George Mason U.) Public Interest Comment series, Sept. 19, 2000; Michael Kinsley, “Bush is right on arsenic. Darn!”, Washington Post, April 13; Michael Y. Park, “Study: Arsenic Rule Would Have Increased Deaths”, FoxNews.com, April 17; Nick Schulz, “Poisoner-in-Chief Is Saving Lives”, American Spectator Online, April 17; Diane Rehm show transcript (National Public Radio), March 28.
April 17 — Reparations: take a number. National Journal columnist Stuart Taylor Jr. traces the link between demands for compensation for century-old evils such as slavery and colonization and legal battles over liability for decades-ago sales of products like lead paint and asbestos (“Paying Reparations for Ancient Wrongs Is Not Right”, The Atlantic/National Journal, April 11; our take, Reason, Nov. 2000). The group of lawyers mapping out slavery-reparations suits are scheduled to huddle on strategy today in Washington, and say they plan to name businesses as well as the U.S. government as defendants (Jamal E. Watson, “Lawyers plan suit for slavery reparations”, Boston Globe, April 13). The conservative magazine Insight has given uncritically positive coverage to demands for compensation over Japan’s World War II mistreatment of American servicemen, despite the clear laying to rest of such claims by postwar treaty. You’d think victims of the crimes of communism over its long reign would be even better placed to score positive ink in the conservative press, but we seem to hear little about them — not that we would want to load up the reparations bandwagon even further, you understand (Stephen Goode, “New book documents Japanese exploitation”, Insight, undated).
April 17 — A Pulitzer for Dorothy Rabinowitz. The Wall Street Journal editorialist, whose searing commentaries on dubious child-abuse prosecutions have helped expose some of the most glaring injustices to flow from sentimentalism and credulity in our legal system, snags one of this year’s Pulitzer Prizes for her commentaries on American society and culture (Yahoo Full Coverage — Pulitzers). OpinionJournal.com keeps an archive of her media criticism; her articles on abusive prosecution, when online at all, are found at far-flung corners of the web (“A Darkness in Massachusetts” -I-, -II-, -III- (RickRoss.com); more columns on Amirault case; “Through the Darkness” (the Grant Snowden case, forever linked with the name of Janet Reno) (DennisPrager.net); Wenatchee case -I-, -II-).
April 16 — “Woman settles hot pickle lawsuit with McDonald’s”. Or at least its local franchisee: “A woman who claimed she was permanently scarred by a hot McDonald’s hamburger pickle has settled her lawsuit against the restaurant chain. MAR Inc., which does business as McDonald’s in Knoxville, admitted no wrongdoing in the agreement signed by a judge Thursday. Other details of the settlement are to remain confidential. ” (see Oct. 10, 2000) (AP/CNN, April 13).
April 16 — New batch of reader letters. Our correspondents tell why the law makes it perilous to hire a home renovation contractor in New York, ask about buying T-shirts from us, wonder whether Indian-derived place names such as Wichita and Massachusetts are next up for abolition, lament American law’s resistance to the obvious fairness of the loser-pays principle, and hail a Supreme Court decision upholding employment arbitration.
April 16 — Big numbers. It is a truth universally acknowledged that if the injuries resulting from a transportation accident are sufficiently severe, a wealthy business must have been at fault. Teledyne Continental Motors of Mobile, Ala. has agreed to pay $27 million to settle a suit on behalf of survivors of five skydivers killed in the crash of a Cessna, though its attorney said the company’s oil tube design does not cause engine failure as the plaintiffs alleged (Joe Lambe, “$27 Million Settlement in Skydiving Plane Crash”, DropZone.com, March 16; “Poor Preflight Probably Killed Skydivers: NTSB”, Aero-News.Net, June 29, 2000). An Indiana appellate court has upheld a $55 million jury verdict against the Kroger Co. over a truck accident at a company terminal, rejecting the company’s contention that the award was excessive and in conflict with workers’ compensation laws (the injured man, a truck driver, worked for a wholly owned subsidiary of the large grocery chain). (Margaret Cronin Fisk, “Finding No Direct Employment Relationship, Indiana Appellate Court Upholds PI Award”, National Law Journal, March 28). A Los Angeles jury has just voted $55 million against General Tire, a unit of Germany’s Continental Gummi-Werke, over a “tread separation” accident (if you thought those were unique to Firestone, think again). (Myron Levin, Los Angeles Times, April 14; “Jury orders tire maker to pay $55 million”, AP/CNN, April 14). Among the plaintiff’s lawyers in the case was Brian Panish, famed for his 1999 feat in getting another L. A. jury to award $4.9 billion against GM, later reduced to $1.2 billion. And another well-known maker of replacement tires, Cooper Tire, got hammered the same week for $10 million in El Paso (“Jury OKs $10M Award Vs. Cooper Tire”, AP/FindLaw, April 13). Also see Margaret Cronin Fisk, “Two Tire Companies Punctured by Juries”, National Law Journal, April 24, with more details about both tire cases.
April 13-15 — It was the bar’s fault. “A 20-year-old Jamison man, who was shot last summer, says a Warminster bar is partially to blame for the incident. Had he not become drunk from alcohol consumption that night, Martin Joyce’s judgment would not have been impaired, he would not have approached an unknown man for change and he would not have been shot, alleges a suit filed in Montgomery County Court.” (John Corcoran, “Intoxication caused judgment error, suit claims”, Doylestown, Pa. Intelligencer-Record, April 11).
April 13-15 — Anti-Ritalin lawyers still acting out. Despite some early setbacks, tobacco-veteran lawyers including Richard Scruggs, John Coale and Marc Saperstein continue to seek megabucks damages against drugmaker Novartis (formerly Ciba-Geigy) over the widespread prescribing in schools of Ritalin, the drug meant to combat attention deficit disorder, hyperactivity, and related conditions. There’s a strong case to be made against the thoughtless overuse of this drug, but how characteristic of our litigation system that it proposes to take decisions about its use out of the hands of both medical professionals and parents, instead inviting the lawyers to shop around until they find a few sympathetic courts and a jury or two willing (effectively) to ban the drug through punitive damages. PBS “Frontline” covered the issue recently (“Medicating Kids“) and its website includes a section on the litigation (“ADHD Lawsuits“) which points out a noteworthy recent development: on March 8 of this year federal judge Rudi Brewster threw out a suit seeking class-action status on behalf of everyone in California who had used or bought Ritalin, and also “ruled that activities by defendants intended to advance the medical understanding, diagnosis and treatment of ADHD were free speech protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.” This latter is significant because efforts by businesses to engage in medical promotion or policy defense of products, trade association activity etc. are now routinely sued over by trial lawyers in themselves (conspiracy! public brainwashing! tobacco all over again!) and anti-SLAPP statutes might prove useful in rebuffing such causes of action.
MORE: Sept. 18 & Sept. 22, 2000; Nancy Shute, “Pushing Pills on Kids?”, U.S. News, Oct. 2, 2000; Shankar Vedantam, “A symptom of the times? ADD, Ritalin focus of suits”, Philadelphia Inquirer, Dec. 11, 2000; Bob Seay, “Ten Questions for the Lawyers”, About.com ADD site, Sept. 16, 2000.
April 13-15 — “2000’s Ten Wackiest Employment Lawsuits”. Gerald Skoning of Chicago’s Seyfarth Shaw compiles an annual roundup of the most bizarre cases in employment law. Among this year’s highlights: a Minneapolis woman took a job in a sex-toy store and then filed a hostile-environment harassment lawsuit because of all the dirty talk she had to listen to; an Ohio court allowed a worker at a mental health facility to proceed with his reverse disability-discrimination claim that he had been singled out for mistreatment as the only employee at the facility without a mental disability; and a Boeing employee claimed that the company’s objection to his working in the nude was a failure to accommodate his religion, shamanism (“2000’s 10 Wackiest Employment Lawsuits”, National Law Journal, March 29).
April 12 — Zero-tolerance spiral. The WSJ‘s OpinionJournal.com “Best of the Web” feature has lately made it a special project to collect reports of zero tolerance excesses, which are fast mounting beyond our ability to record them. F’rinstance, there are the school officials in West Annapolis, Md., who have banned kids from playing tag during recess, citing the school’s “no-touching” policy (Kimberly Marselas, “City school bans students from playing tag”, Annapolis Capital, March 26); and the honor student given an in-school suspension in West Monroe, La., for drawing a GI Joe-style commando with canteen, knife and grenades (Emeri O’Brien, “3rd-grader suspended for drawing”, Monroe, La. News-Star, March 24; “Soldier drawing gets wide attention”, March 27). A 16-year-old student at Legacy High School in Broomfield, Colo. “may be charged with a felony after school officials found an unloaded BB gun in his car.” (Christine Reid, “Student may face felony charge over unloaded BB gun”, Scripps-Howard, April 8). And in the continuing search for ways to build character in the leaders of tomorrow, some favor snitchlines: “Cedar Rapids police are believed to be the first in Iowa to create a student hot line to take tips on illegal activity. Teens who call about classmates they believe to have alcohol, drugs or weapons on school property get $50 if the police recover anything.” (Kate Kompas, “Teen crime hot line offers cash”, Des Moines Register, April 5).
April 12 — “The Last Tycoon”. This Baltimore City Paper profile from last August, which we missed at the time, says contingency fees to Peter Angelos’s law firm topped $100 million for asbestos work on behalf of Bethlehem Steel workers alone, with more riches expected to flow in from fen-phen, lead paint and those supposedly deadly cellular phones. “When it comes to Baltimore’s politics and finances, it seems, almost nothing happens without Peter Angelos. … in 1999, 10 lawyers and lobbyists were registered with the State Ethics Commission on his behalf.” The minority leader of the state house describes the Orioles owner’s power in Annapolis as “absolutely magical” and “amazing … It’s all based on huge amounts of money flowing [from] Peter Angelos’ pocket and into the coffers of the Democratic Party.'” (Molly Rath, Baltimore City Paper, Aug. 16, 2000)(more).
April 11 — Lost his live client, had to substitute dead one instead. In St. Louis, where lots of dead people are registered to vote, “a dead man was listed as the chief plaintiff in a lawsuit filed on Election Day in November,” according to the L.A. Times. “He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge — successfully — to keep city ballot boxes open late. … The lawyer who filed the suit explained the mix-up by saying he had intended the plaintiff to be Robert ‘Mark’ Odom, an aide to a Democratic candidate for Congress.” However, “Odom had voted, without a wait, by the time the suit was filed,” and the papers had been prepared with his name on them. But as California judge William W. Bedsworth suggests, this supposed explanation if anything makes the case more egregious: the lawyer “‘explained’ how he filed a suit on behalf of a dead person by saying that the plaintiff turned out not to have had his rights violated, and the only available person with the same name happened to be dead. And this caused not the batting of an eyelash in St. Louis. No immediate suspension, no call for disbarment, no investigation into how he got a judge to sign this thing”. (“Meet Me in St. Louis”, The Recorder, April 9).
April 11 — Update: “metric martyr” convicted. In the first such prosecution in Britain, greengrocer Steven Thoburn of Sunderland has been convicted of violating a 1985 compulsory metric system laws by selling bananas in pounds and ounces (see Jan. 22) (“‘Metric martyr’ convicted”, The Guardian, April 9; “Bananas” (editorial), Daily Telegraph (editorial), April 10; footrule.org, of which the late Jennifer Paterson (TV’s “Two Fat Ladies”) was an honorary member).
April 30 — Michigan prisoner sues for recognition as Messiah. “A prisoner who claims he is God has sued the U.S. government, the state of Michigan, a book publishing company, a radio program and several others.” The case of inmate Chad De Koven, 43, reflects a more serious problem: in spite of reforms at both the federal and state level that have aimed at curbing unmeritorious suits by those behind bars, “Michigan Assistant Attorney General Leo Friedman heads a division of 19 lawyers who do nothing but handle prison litigation.” (Crystal Harmon, Bay City Times, March 28). Update May 14: judge dismisses case in 22-page opinion.
April 30 — “States Mull Suit Against Drug Companies”. Latest nominee for Next Tobacco designation are the folks who’ve allegedly charged too much for saving our lives: “In an action modeled on their 1998 class action lawsuit against the tobacco industry, at least six states are poised to go to court to try to force pharmaceutical companies to lower prescription prices … Attorneys general in Florida, Georgia, Maine, Massachusetts, Nevada and Texas are among those considering legal action, officials from some of the offices said. … A catalyst for state legal action is Florida businessman Zachary Bentley, who is going from state to state urging state attorneys general to sue drug manufacturers.” Bentley, himself a disgruntled competitor of the drug companies, says they overstate the average wholesale price of many drugs so as to boost what Medicare and Medicaid programs will pay for them. “Under whistleblower and federal False Claims laws, Bentley gets a portion of any settlement that results from what he’s revealed.” (Mary Guiden, Stateline.org, April 2)(more on False Claims Act: July 30).
April 30 — “Radio ad pulled after lawyers object”. Following protests from the state bar association, the Kentucky transportation department last month agreed to stop airing a traffic-safety radio ad based on a well-worn lawyer joke. The joke? “A car full of lawyers turned over right in front of old man Jenkins’ place. He comes out and buries them all. The sheriff asked old man Jenkins, ‘You sure they were all dead?’ ‘Well,’ says Jenkins. ‘Some said they weren’t. But you know how them lawyers lie.”’ The ad urged motorists to slow down so as not to meet a similar fate. (Jack Brammer, Lexington (Ky.) Herald-Leader, March 27).
April 27-29 — Victory in Albany. Unanimous, long-awaited, and devastating: by a 7-0 vote New York’s highest court yesterday rejected the most important elements of the much-hyped lawsuit Hamilton v. Accu-Tek, which seeks retroactively to tag gun manufacturers with liability for criminal misuse of their products. Answering two questions 
certified to them by the federal Second Circuit, the jurists of the New York Court of Appeals declined to impose a new legal duty of gun manufacturers toward anyone who might fall victim to post-sale misuse of guns, and also ruled out the application of “market-share liability”, the adventurous theory by which plaintiff’s lawyers were attempting to impose liability on gunmakers without having to show that their guns figured in particular shootings. Both rulings stand as a reproof to activist federal judge Jack Weinstein, who had kept the Hamilton suit alive despite many indications that it had no grounding in existing law. (Joel Stashenko, “Court says gun manufacturers not liable”, AP/Albany Times-Union, April 26; “N.Y. Gun Ruling Could Have National Impact”, AP/FoxNews.com, April 27; John Caher, “New York Rules Gun Manufacturers Not Liable for Injuries”, New York Law Journal, April 27; read full opinion (PDF) — Firearms Litigation Clearinghouse site).
Other judges have lately thrown out of court municipal antigun suits filed on behalf of New Orleans and Miami (Susan Finch, “N.O. gun suit shot down”, New Orleans Times-Picayune, April 4; Susan R. Miller, “Appeals Court Halts Miami-Dade Suit Against Gun Industry”, Miami Daily Business Review, Feb. 15). And the Florida legislature has voted on largely partisan lines, with Democrats opposed, to join 26 other states in spelling out explicitly that cities, counties and other subdivisions of state government have no authority to file recoupment actions against gun makers and dealers over criminals’ misdeeds (“Florida Legislature Votes to Insulate Gunmakers”. Reuters/Yahoo, April 25; see also Charlotte Observer, April 26) (N.C. bill). Unfortunately, judges have recently allowed novel anti-gunmaker suits to proceed in Chicago and Atlanta; and as the gun-control-through-lawyering crowd knows too well, even a few eventual breakthroughs for their side may be enough to ruin this lawful industry (Todd Lighty and Robert Becker, “Gun victims’ lawsuit against firearms industry can move forward”, Chicago Tribune, Feb. 15).
MORE: Jeff Donn, “Maker of the .44 Magnum turns to golf putters and teddy bears”, AP/Minneapolis Star Tribune, April 14 (after the failure of its attempt to cut a deal with its legal tormentors, S&W struggles to stay afloat; one lawsuit had cost the company $5 million just to be dropped from the case); Tanya Metaksa, “Smith & Wesson’s Deal With the Devil”, FrontPage, April 12; Kris Axtman, “Gunmakers not about to run up white flag”, Christian Science Monitor, Dec. 15. Politicians have begun to move away from reflexive antigun sloganeering as election results have made clear that the supposed antigun consensus in American public opinion is no consensus at all (Michael S. Brown, “Gun Control: What Went Wrong?”, FrontPage, April 26).
April 27-29 — “Iowa Supreme Court says counselors liable for bad advice”. “A high school guidance counselor can be held responsible for giving wrong advice to a student that damages the student’s educational goals, the Iowa Supreme Court ruled Wednesday.” Katie, bar the door! (AP/CNN, April 26).
April 26 — “Legal action prolongs whiplash effects: experts”. Yet another study, this time from researchers at the University of Adelaide, Australia, finds that after auto accidents people experience more pain and quality-of-life deterioration if they are pursuing litigation (Australian Broadcasting Corporation, April 12) (see April 24, 2000). Also see Kevin Barraclough, “Does litigation make you ill?” British Medical Journal, March 31.
April 26 — Judge offers “court phobia” defense. Court-appointed special masters found that Los Angeles County Judge Patrick Murphy took more than 400 days of unjustified sick leave at taxpayer expense since 1996. They were not “impressed with what they called his ‘evolving defense,’ which began with claims that his political opponents were behind the accusations and ‘matured’ into a defense that he was disabled because of a ‘phobic reaction to judicial activities.'” (Sonia Giordani, “Los Angeles Judge’s ‘Court Phobia’ Defense Falls Flat”, The Recorder, April 12).
April 26 — The law must be enforced. In St. Cloud, Florida, 12-year-old Derrick Thompson tried to cross a street against the traffic and got hit by a truck, to onlookers’ horror. Dazed and bleeding, Derrick got another surprise minutes later when town police handed him a ticket for jaywalking. (Susan Jacobson, “Ticket seen as insult to injury”, Orlando Sentinel, April 13).
April 25 — While you were out: the carbonless-paper crusade. Some people are convinced their health has been damaged by ordinary workplace exposure to the chemicals present in carbonless paper, the material used in pressure-sensitive memo slips and similar office supplies. (“Carbonless Copy Paper — The Injury and Information Network”, carbonless.org). Although the product’s makers, such as Appleton Papers and the Mead Corporation, deny that there’s anything to be feared from working with receptionist’s pads or other multiple forms, a number of news reports have uncritically accepted the idea of a causal link between the paper and the ills complained of — to MSNBC’s Francesca Lyman, for example, “probably thousands” have fallen victim to the scourge, showing how “a seemingly benign product could leave a trail of damage”. (“The carbonless paper caper”, MSNBC, Jan. 17 (page now removed, but GoogleCached); see also Keith Mulvihill, “Sick of Paperwork? Some Office Workers Say It’s the Paper”, New York Times, Sept. 26, 1999 (reg); Tracy Davidson, WCAU-TV Philadelphia “Consumer Alert“). Inevitably, those who feel victimized are filing suits against companies that manufacture the product.
None of the activists have figured more prominently in news stories than Brenda Smith of Virginia Beach, Va., who filed suit in 1993 over a variety of symptoms including “headaches, sinus and allergy problems, skin and eye irritation, sore throats, respiratory infections, bronchitis,” and others, which she believes resulted from exposure to the chemicals in carbonless paper at her job. “The potential for litigation from worker’s compensation to product liability is huge,” she told The American Enterprise. However, the magazine also unearthed one extra little fact which the earlier press reports had neglected to mention: that “the health-afflicted Brenda Smith was addicted to cigarette smoking, which she admitted to TAE when we bothered to ask. Apparently some reporters didn’t think that fact advanced their story.” (“Scan”, The American Enterprise, April/May (scroll down to “Smoking Gun”)) See also Bob Van Voris, “Scents or Nonsense?”, National Law Journal, Nov. 6, 2000. NIOSH review (PDF — very long)(& see letter to the editor, May 18).
April 25 — Value of being able to endure parody without calling in lawyers: priceless. When MasterCard sent its lawyers to do a cease and desist routine on rec.humor.funny over a tasteless parody of its “Priceless” ad campaign, list founder Brad Templeton posted this tart riposte on NetFunny.com (April).
April 24 — Put the blame on games. The lawyer for survivors of a murdered Columbine teacher has sued 25 media companies, mostly makers and distributors of video games whose violence he says incited the perpetrators of the crime. Attorney John DeCamp claims to be “100 percent on the side of the First Amendment” when he isn’t filing actions like this, and equally predictably says it’s not really about the money, which isn’t keeping him from demanding that the defendants fork over $5 billion-with-a-“b”. (Kevin Simpson, “Slain teacher’s family launches suit aimed at media violence”, Denver Post, April 21). Update Mar. 6, 2002: judge dismisses case.
April 24 — Pennsylvania MDs drop work today. “Hundreds of physicians from Southeastern Pennsylvania plan to shut down their offices and leave their hospital posts [Tuesday] to go to Harrisburg to insist that lawmakers enact insurance-tort reforms and give them relief from soaring malpractice-insurance premiums. … According to the Pennsylvania Medical Society, obstetricians in the Philadelphia region pay an average of $84,000 yearly in malpractice insurance, while the same doctors in New Jersey pay about $58,000, and in Delaware, $52,000. Neurosurgeons pay $111,000 for coverage in Philadelphia. If their practices were in New Jersey, the rate would be about $75,000.” (see Jan. 24-25). Timothy Schollenberger, president of the state trial lawyers’ association and evidently a man given to bold denials, says the protest is misplaced: “tort law is not a significant factor in making [malpractice] premiums rise or fall”. Kind of like an oil sheik denying that OPEC crude price hikes have anything to do with the cost of gas at the pump, isn’t it? (Ovetta Wiggins, “Doctors to protest premium increases”, Philadelphia Inquirer, April 23).
April 24 — Bush’s environmental centrism. The press has decided to make President Bush’s supposed anti-environmentalism the story du jour, but in fact “on almost every environmental issue, Bush has upheld the Clinton-Gore position.” (Gregg Easterbrook, “Health Nut”, The New Republic, April 30).
Among Bush proposals to meet with support from many centrists and Democrats is the one for a year-long moratorium on pressure groups’ use of endangered-species lawsuits to drive the agenda of the Fish and Wildlife Service; see Bruce Babbitt, “Bush Isn’t All Wrong About the Endangered Species Act,” New York Times, April 15 (reg); Michael Grunwald, “Bush Seeks To Curb Endangered Species Suits”, Washington Post, April 12 (“The litigation explosion has been so bad, we couldn’t even list species that were going over the edge,” said Jamie Rappaport Clark, who directed the service under Clinton. “We asked the courts to let us set our own priorities, but they wouldn’t budge.”)(see Dec. 4, 2000).
April 24 — Washington Post editorial on cellphone suit. We’ve appended highlights from yesterday’s refreshingly blunt Post editorial (“More Dumb Lawsuits”) to the item below on the Angelos onslaught against mobile telephony. Is it too much to hope that the New York Times or L.A. Times will someday start being even half as editorially sensible about litigation issues as the Post is?
April 23 — Sorry, wrong number. As expected, Baltimore tort tycoon Peter Angelos filed suit against 25 defendants including Nokia, Motorola, Ericsson, Verizon, Sprint and Nextel accusing them all of concealing the brain-frying horrors of cellular telephone use. “The suits do not claim that anyone has actually suffered an illness.” (Peter S. Goodman, “Angelos Suits Allege Cellular-Phone Danger”, WashTech.com/ Washington Post, April 19). In an editorial bluntly titled “More Dumb Lawsuits”, the Washington Post declares, “There is now a new way to satisfy the bemused foreigner who asks why a nation so proudly founded upon the rule of law is marked by such contempt for lawyers. Just tell the foreigner about the litigation against cell-phone makers that Peter Angelos began on Thursday.” Moreover, Angelos is demanding a remedy (free headsets) that “makes no sense … Mr. Angelos is seeking to replace a situation in which consumers are free to buy headsets if they choose with one in which they indirectly are forced to pay for them — and to pay Mr. Angelos’s fees into the bargain.” (April 23). Update Oct. 1-2, 2002: court dismisses case.
April 23 — Seventh Circuit rebukes EPA. A U.S. Court of Appeals has rebuked the Environmental Protection Agency, dismissing the Superfund suit in which the agency sought permission to enter and dig up the 16-acre property of John Tarkowski, a disabled and indigent building contractor in Wauconda, Ill. Tarkowski’s habit of accumulating surplus materials, from which he has constructed his house, has annoyed many of his upscale neighbors, but repeated investigations have failed to find any serious contamination on his property. Rejecting the government’s arguments, the appeals court held that EPA “sought a blank check from the court. It sought authorization to go onto Tarkowski’s property and destroy the value of the property regardless how trivial the contamination that its tests disclosed.” And: “In effect, the agency is claiming the authority to conduct warrantless searches and seizures, of a particularly destructive sort, on residential property, despite the absence of any exigent circumstances. It is unlikely, even apart from constitutional considerations, that Congress intended to confer such authority on the EPA.” (“U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy Elderly Wauconda Man’s Property”, press release from Mayer, Brown & Platt (whose Mark Ter Molen represented Tarkowski pro bono), Yahoo Finance/Business Wire, April 20).
April 23 — If I can’t dance, you can keep your social conservatism. The town of Pound in Virginia’s coal-mining western corner has an ordinance on the books that bans public dancing without a permit. Bill Elam is defying the law by operating his Golden Pine nightclub, while local clergy hope the town sticks to its guns: “I can never see a time when dancing can be approved of, especially with people who are not married,” said one. (“Virginia town outlaws dancing”, Nando Times, April 16).