December 8-10 --
Vicarious criminal liability? Suburban Detroit prosecutors
are pressing charges of involuntary manslaughter against 49-year-old cook
Terry Walker, who hails from the palindromically named town of Capac in
Michigan's rural Thumb. It seems Walker sold a chrome-plated 9mm
semiautomatic gun to a friend without having the friend provide a purchase
permit for it as required by law. The friend resold the weapon and
it eventually wound up in the hands of Ljeka Juncaj of Sterling Heights,
a stranger to Walker, who used it to kill a police officer in Warren while
in custody following a drug arrest. "Macomb County Prosecutor Carl
Marlinga said he hopes Walker will become the vessel for a lesson to gun
owners by telling them that if they fail to properly sell a gun and it
is used in a crime, that is as bad as committing the crime." Outraged
Capac townspeople think that idea is crazy, and are taking up a collection
for Walker's defense. (Kim North Shine, "Punishment of ex-owner debated",
Detroit Free Press, Dec.
December 8-10 --
Florida's legal talent, before the Chad War. Wall
Street Journal's Collin Levey pulls together highlights from the pre-November
legal careers of prominent Florida attorneys assisting Democrats in their
legal efforts. Dexter Douglass, "David Boies's right hand", had
been among those who represented the state in the tobacco
lawsuit; Henry Handler, who "brought suit against the butterfly ballot",
also had filed a class-action lawsuit
against the Florida Marlins "on behalf of season-ticket holders who claimed
the team injured them by 'losing too much'"; Gregory Barnhart, who represented
the Democratic National Committee in recount litigation, is past president
of the Florida Trial Lawyers Association; and Harry Jacobs, who "launched
the lawsuit to throw out 10,000 absentee ballots in Seminole County", had
fought a "high-profile war against Florida rules preventing lawyers from
on television (a k a electronic ambulance chasing)." ("Gore's
Bombastic Barristers", Opinion Journal,
December 8-10 --
Sylph esteem. Krissy Keefer has filed the first
case under San Francisco's new law banning discrimination on the basis
of height and weight, saying the prestigious San Francisco Ballet School
rejected her 8-year-old daughter Fredrika as an applicant because it considered
the girl's size and shape inappropriate for a ballerina. The school
says its purpose is to train professional dancers, not to provide recreation,
and says it accepted only 29 percent of the 1,400 student applications
it received last year (Edward Epstein, "Girl Fights For a Chance To Dance",
San Francisco Chronicle, Dec.
December 8-10 --
"Armstrong World Files for Chapter 11 Amid Battle With Asbestos Lawsuits".
The building and construction materials concern "tried a number of approaches
to manage its asbestos liability, including negotiating broad-based solutions
and supporting efforts to find a legislative resolution. But the number
of cases filed and the cost to settle cases have continued to increase."
Lenders pulled the plug after the bankruptcy of Owens Corning earlier this
fall made clear that even large companies that operate with success in
unrelated businesses can face financial ruin if they sold asbestos-containing
products decades ago (see Nov. 27,
6; DowJones/ CFO, Dec.
6; AP/MSNBC, Dec. 6;
and bankruptcy news site).
December 8-10 --
Welcome WorldNetDaily readers. We linked to and
briefly excerpted Jon Splatz's "LawyerClysm" article on Nov.
22, and the full version appears
here. (Ralph R. Reiland, "Lawyered to death", WorldNetDaily,
9). We also got a mention from Doug Camilli in his Montreal Gazette
column on Thursday (Dec.
7) and were featured on Yahoo "Cool Links" as one of Leya's "Surfer's
December 7 -- Promising
areas for suits. Among the National Law Journal's
annual roundup of hot new causes of action that lawyers are suing on: cases
charging employers with breaking promises
(which may be only "implied" promises) made in job interviews; injuries
over foul balls and other hazards in sports stadiums, long barred by the
(fast-shrinking) old doctrine of assumption
of risk; suits against relatives for failing to prevent gun-related
injuries; suits over workplace injury against consultants (HR, security)
and other third parties who, unlike the direct employer, may not be able
to invoke the litigation shield of workers' comp laws; laser eye surgery
complications; negligent failure to provide defibrillation equipment in
public places; "[l]awsuits against owners, leasers and drivers of trucks
over accidents caused by trucker fatigue"; suits against sports doctors;
and claims against trade associations, such as the one that recently obtained
an $11 million verdict against the National Spa and Pool Institute on an
allegation that its voluntary standards for diving boards should have been
more stringent (Margaret Cronin Fisk, "New Century, New Causes", National
Law Journal, Nov.
December 7 -- "Woman
drops suit alleging she caught herpes from mannequin".
It now develops that Brenda Nelson (see Oct.
11) of Hammond, Ind. has consulted a second doctor and been told she
does not have herpes after all, and she has accordingly dropped her suit
against the American Red Cross alleging that she contracted the malady
by pressing her lips to those of a first-aid mannequin, says her attorney,
Jerry Jarrett. The executive director of the local Red Cross said
he doubted the disease could have been transmitted in the claimed manner
anyway: "'Everyone here gets a separate mannequin. Nobody gets behind someone
else in line. Staff and volunteers wash the mannequins down with warm,
soapy water with a little bit of bleach in it after each class," said the
director, whose name is Wayne Wigglesworth. (AP/FindLaw, Dec. 5).
December 7 -- No
more "naughty". Organizations that train and represent
British nursery staff have put out the word that misbehaving tots are not
to be called "naughty", "bad boy", "silly" or "stupid", such terms amounting
to stigma-laden "labeling". Some nursery staff have also asked
parents to avoid using the terms in correcting their own children.
Others call it "political correctness gone mad". (Martin Bentham,
"'Naughty' is banned from the nursery", Sunday Telegraph (London),
December 7 -- Trial
lawyers vs. hog farms. Various lawyers active in
and other mass litigation are filing nationally coordinated lawsuits against
hog farms in seven states over their purported porcine
pollution atrocities. An environmentalist group led by Robert
Kennedy Jr., Water Keeper Alliance, will provide the media-friendly face
for the effort. Fifteen law firms are kicking in $50,000 apiece to
get the assault underway. (Philip Brasher, "Environmentalists Target
Hog Farms", AP/Los Angeles Times,
Dec. 6). For more on hog
farm litigation, see Sept. 12, 2000
and Oct. 4, 1999. And the New York
Times reports today that the hog farm effort is expected to serve
as the pilot case in a new alliance between environmental groups and leading
trial lawyers, which will involve the filing of mass tort suits in an effort
to wrest policymaking away from the Environmental Protection Agency and
Congress, i.e., the units of government that have some occasion to consult
the views of actual voters (Douglas Jehl, "Fearing a Bush Presidency, Groups
Plan Pollution Suits", New York Times (reg), Dec.
7). "In one court filing, the plaintiffs said that the cleanup
[of North Carolina hog farms] would require restoration of 3.7 million
acres of wetlands at a cost of no less than $40,000 an acre -- or roughly
$148 billion for these damages alone." The major defendant in the
case, Smithfield Foods, has a total market capitalization of almost exactly
one-one-hundredth that sum, at $1.48 billion (Motley Fool profile, SFD).
May 7, 2001: judge throws out first two
suits; Apr. 15, 2002: RFK Jr. embarrasses
himself in Iowa; Jul. 3-9, 2002: federal
judge throws out suit and imposes sanctions on plaintiffs.
December 6 -- You
deserve a beak today. Okay, so Katherine Ortega
of Newport News, Va. says she found a crispy chicken head in her order
of McDonald's fried chicken wings, and by now pictures of the handsomely
breaded ornithological exhibit have been beamed round the world.
But what are the damages? (Especially since Ortega didn't eat
the offending morsel, and people in other countries do eat chicken's heads.)
A local plaintiff's injury lawyer, Stephen H. Pitler, told the Newport
News paper: "It looks to me that there’s a legal wrong ... people might
be psychologically scarred for a very long time". On the other hand,
a liability defense lawyer said that it really wasn't much of a case: "no
more than a couple thousand dollars", which by the standards of the U.S.
legal system, you will understand, really counts as nothing at all. (Peter
Dujardin, "Chicken-head incident has ruffled feathers", Newport News (Va.)
30; David Koeppel, "You deserve a beak today", FoxNews.com, Dec. 1).
The Newport News paper added: "Some wondered how urbanized Americans have
become so far removed from the process of killing what they eat that the
mere sight of a natural piece of an animal – one that is consumed every
day elsewhere in the world -- could cause such emotional scarring."
Right on schedule, local TV station WVEC reports that the Ortegas have
now hired an attorney; they're refusing McDonald's request to examine the
object in question; and they "said their children now refuse to eat chicken
and that their youngest child has had a nightmare about the fried chicken's
head." ("Fried chicken's head flies the coop", WVEC-TV (Hampton Roads),
5; "Inspectors investigate fried chicken's head", Dec. 5).
December 6 -- Bear
market. New York Observer tells how Bear
Stearns lost a nine-figure jury verdict to a wealthy investor who'd suffered
major losses in his account, in a case that has other brokerages more than
a little nervous (see June 9-11) (Landon
Thomas Jr., "Meet the Great de Kwiatkowski, the Man Who Was Awarded $164
Million From Bear Stearns", New York Observer, Nov.
December 6 -- Safer
but less free. Three years ago Gail Atwater of Lago
Vista, Tex. was arrested, handcuffed in front of her children and hauled
off to jail for ... non-seat-belt use. Now her case has reached the
U.S. Supreme Court. (Amanda Onion, "Soccer Mom at Highest Court",
ABCNews.com, Dec. 1).
December 5 -- California's
lucrative smog refunds. "Five law firms, including
one that donated nearly a quarter-million dollars to the governor, will
split $88.5 million in state taxpayer money for a lawsuit returning smog
fees to residents who registered out-of-state vehicles in the 1990s.
"An arbitration panel in Sacramento made the award, among the largest
attorneys' fees ever paid by the state.
"'I'm going to be exploring every option I have to freeze this payment,'
state Controller Kathleen Connell said Thursday. 'No one can recall any
settlement that even comes close. I'm deeply distressed.'...
"The money will come from $665 million allocated by Gov. Gray Davis
and the Legislature for refunds to people who paid the $300 fee. ...One
of the law firms that will claim a share of the $88.5 million is Milberg,
Weiss, Bershad, Specthrie & Lerach. Bill Lerach and his firm, with
offices in New York and San Diego, have been among Davis' major
donors, giving him $221,000 during his 1998 election campaign, and
$20,000 this year." ("Five Firms to Split $88.5 Million for Smog
Lawsuit", AP/DowJones.com, Dec. 4; Google
search on Lerach + smog fee). (Update June
22-24, 2001: judge strikes down fee; Aug.
21, 2004: second arbitration panel awards $23.7 million).
December 5 -- Do
as we say, cont'd: arbitration clauses. "Lawyers
appear to be quick to sue almost anyone except other lawyers, a lawyers'
"Lawyers Weekly USA reported Thursday that a growing number of
lawyers are putting fine print in fee agreements shielding them from being
sued by a client if they botch a case.
"The Boston-based national newspaper for small law firms said lawyers
instead prefer that such disputes go to private arbitration because arbitration
is faster and cheaper, decisions are often made by other lawyers rather
than juries, and there's no public record." (UPI/Virtual New York,
December 5 -- Might
fit in at Business Week. "[Cartoonist Ted]
Rall does freelance work as well, which includes a monthly cartoon for
magazine, called 'Business as Usual.' 'Actually, it's one of my favorite
gigs because it's really anti-corporate, anti-business... I basically trash
capitalism in Fortune.... I have no business being in Fortune,
you know, it's ridiculous. I'm a Marxist, basically.''" (Morika Tsujimura,
"Cartoonist Rall Comes Out of Left Field", Columbia Daily Spectator
(Columbia University), Dec. 4) (via Romenesko/Poynter Media
December 4 -- Burying
old hatchets. The decay of the principle of statutes
of limitation underlies a host of troublesome legal actions in areas ranging
from slavery and WWII reparations to recovered-memory child abuse charges
to Indian land claims, argues our editor in his latest Reason column
(Walter Olson, "Stale Claims", November;
Paul Shepard, "Lawyers Plan Slave Reparations Suit", AP/Excite, Nov. 4).
Not everyone who has suffered historical dispossession is in a position
to profit from the law's willingness to reopen old grievances: "Germany's
highest court ruled on Wednesday that east Germans stripped of property
during 60 years of dictatorship under first Nazism and then communism were
not entitled to further compensation." (Reuters/FindLaw, "Court Rejects
East German Land Compensation", Nov.
December 4 -- Endangered
list. "The Fish and Wildlife Service says it can't
add more wildlife to the endangered
species list this year because it has to spend so much time and money
defending lawsuits from environmentalists. ... The service is swamped by
lawsuits from environmental groups demanding 'critical habitat' designation
for some of the 1,225 species in the U.S. already listed as threatened
or endangered. A critical habitat ruling describes the area where a species
either lives or could live." ("Agency: Lawsuits Stymie Conservation",
AP/FindLaw, Nov. 21).
December 4 -- Exotic
dancers in court. In Scranton, Pa., a jury has "ordered
a nightclub to pay $363,153 to a stripper who was badly burned while performing
her fire-breathing routine. ... [In 1994 Patricia] Ryan accidentally dribbled
a mixture of 151-proof rum and salt onto her chest and suffered second-degree
burns. She alleged that the [Cabaret Nightclub's] employees did not provide
adequate safety equipment or come to her aid quickly enough." Ryan
is now 36 and is enrolled at Harvard University, according to the story.
("Burned Stripper Wins $363,153 Award ", AP/Newsday, Nov. 16). And
in Cleveland, a lawyer for Jodi Ketterman has objected to a judge's plan
to order an electronic monitoring bracelet attached to her ankle in lieu
of bond in a pending criminal case, saying the bulky device would interfere
with her work as an exotic dancer (Karl Turner, "Exotic dancer’s lawyer
says bracelet too much to wear", Cleveland Plain Dealer, Sept.
28). More exotic dancer litigation: Aug.
14, July 26, May
23, January 28.
December 1-3 --
Hauling commentators to court. Both left and right
these days seem increasingly inclined to drag pundits of the opposite camp
into litigation. White House aide Sidney Blumenthal, pursuing his
defamation suit against Matt Drudge, is demanding that numerous conservative
commentators submit to interrogation under oath about the case; the list
is said to include John Fund, Arianna Huffington, Ann Coulter, David Horowitz
and Tucker Carlson (David Carr, "Blumenthal-Drudge Legal Grudge Match Drags
in a Who's Who of Right-Wing Commentators", Inside.com, Nov.
29; Michael Ledeen, "An Open Letter to the Blumenthal 25", National
Review Online, Nov.
21). Meanwhile, the litigious conservative group Judicial Watch
has announced that it is going to "monitor" hostile columnists Joe Conason
and Gene Lyons "among others, to make sure they do not violate the rights
of American citizens," which might easily be mistaken for a not-very-veiled
intent to seek grounds to sue them (Greg
Lindsay, "Judicial Watch, Clinton Administration Scourge, Targets Salon
Writers Conason and Lyons", Inside.com, Nov.
21). And the World Wrestling Federation, under fire from the
social-conservative Parents Television Council, has sued PTC alleging "a
multi-faceted pattern of tortious and fraudulent activities" based on its
efforts to get corporate advertisers to drop their support of WWF broadcasts
("Grudge Match", Opinion Journal (Wall Street Journal), Nov.
December 1-3 --
Batch of letters. The latest additions to our letters
page have to do with why the EEOC's chairman asked to stop the tape during
a John Stossel interview; the Florida election debacle; and the Derrick
December 1-3 --
Burned by a hired witness. Lawyers around the country
hired Gary S. Stocco of the National Burn Victim Foundation to testify
as a courtroom expert on burn injuries, for both prosecution and criminal
defense as well as in civil cases. But his resume was "filled with
embellishments and false qualifications", and listed two degrees from an
outfit that "requires no course work and mails out degrees for cash".
Now he faces up to 20 years in prison after being convicted in Prince William
County, Va., south of Washington, of perjury and obtaining money under
false pretenses. One DA called Stocco a hired gun, while another
said he "sets out to tip the scales of justice toward whoever is paying
him." Sentencing is scheduled for January.
"According to transcripts of testimony in several jurisdictions, Stocco
said he had investigated hundreds of child-abuse cases as a state police
officer in New Jersey and had attended surgical procedures for burn victims.
But Gary Gardiner, a Prince William detective, said yesterday that Stocco
had instead patrolled parking lots and hadn't been involved in any criminal
investigations or surgeries.
"Each time Stocco was allowed by a judge to testify as an expert witness,
it boosted his qualifications. It's a cycle that worries prosecutors."
(Josh White, "Roving Burn 'Expert' Was False Witness", Washington Post,
3. See also New
Jersey legislative commission (scroll halfway down), June 17, 1998;
Georgia Firefighters Burn Foundation bulletin
board; USA Today).