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ARCHIVE -- OCT. 2000 (III)

October 31 -- Foster care abuses: taxpayers to owe billions?   Injury lawyers plan a major push to develop damage lawsuits against government on behalf of children harmed under foster care, the New York Times reports.  Florida tobacco-fee magnate Robert Montgomery (see Apr. 12) and other movers and shakers are encouraged by "court rulings that make government agencies easier to sue and sizable jury awards in foster care cases".  A lawyer with the National Center for Youth Law, part of the network of legal services groups that philanthropic foundations, organized lawyerdom, and taxpayers have all had occasion to support generously over the years, is cited saying that "groups like his had become more open to alliances with personal injury lawyers".  Suits often allege that different placement choices or more vigorous intervention by social workers might have prevented beatings, neglect or molestation of youngsters in foster care.  States fear taking the cases to trial: "They're very difficult cases to defend in front of juries because juries often have the benefit of 20-20 hindsight," says a lawyer for the state of Washington, where "government payouts in civil cases in general have quadrupled in six years".  "Some officials, including Kathleen A. Kearney, the secretary of the Florida Department of Children and Families, say such litigation unfairly detracts from continuing efforts to improve child welfare, diverting resources that legislatures, not courts, should control."  (Nina Bernstein, "Foster-Child Advocates Gain Allies in Injury Lawyers", New York Times, Oct. 27) (reg).  See also Aug. 23-24 (billions demanded in lawsuits over Canadian residential schools). 

October 31 -- Tales from the tow zone.   "A Dallas-area jury has ordered Chrysler Corp. and a local dealership to pay $83.5 million to a Texas couple who charged that the defendants misled them on the towing capacity of the Dodge Ram pickup truck they bought."  The couple did not suffer physical injury from the towing-force deficit, but argued that because the vehicle turned out not to be strong enough to pull horse trailers, they lost their equine transport business and the husband subsequently suffered depression.  Nearly all of the award, $82.5 million, was in punitive damages; Texas's limits on that category of damages, much deplored by trial lawyers, make it likely that the actual payout to the couple will not exceed $2.4 million, assuming they prevail in Chrysler's planned appeal.  (Margaret Cronin Fisk, "Jury Tags Chrysler for $83 Million", National Law Journal, Oct. 5).

October 31 -- Fat tax proposed in New Zealand.   The proposal, floated by public health activists down under in the country's Medical Journal, got a cool reception from the Kiwi health minister as well as from people in the farming and meat businesses.  The idea was hailed as worth considering, however, by a medical adviser to the country's Heart Foundation.  It would apply a saturated-fat tax to such food items as butter, cheese, meat and milk, the "full-cream" variety in particular (Al Gore isn't the only one campaigning against the "top one percent"). (Martin Johnston, "Fat-tax plan to reduce disease", New Zealand Herald, Oct. 30). 

October 30 -- Netscape "Best of 'What's Cool'".   Last month Overlawyered.com was one of the picks on Netscape's popular "Cool Sitings of the Day", and this weekend we were featured in its "Best of 'What's Cool'", with another flood of newcomers resulting. 

October 30 -- Ohio high court races.   Buckeye State voters next week will decide on the hotly contested re-election bid of Democratic state supreme court justice Alice Robie Resnick, a key member of the court's 4-3 liberal majority; also seeking re-election is Republican Deborah Cook, who has voted on the opposite side from Resnick in several controversial cases.  Bone of contention number one is last year's decision in which Resnick and three other justices relied on a strained reading of the state constitution to strike down the liability reforms passed by that state's legislature (see Aug. 17 and Aug. 18, 1999), a move highly welcome to the Ohio Academy of Trial Lawyers, which has supported Resnick's re-election.  Also at issue are a series of other Ohio Supreme Court decisions that have outraged the state's business community, including a line of cases holding that commercial auto insurance policies by which companies cover their employees' work-related driving can be made to pay for accidents suffered by the employees and their families in their own cars on their own time.  (Scott-Pontzer v. Liberty Mutual (Ohio PIA); Charles T. McConville, "The Ohio Supreme Court, Your Business and Its Insurance", Ohio Matters (Ohio Chamber of Commerce), Nov./Dec. '99; Ohio Chamber of Commerce Court 2000 page).  In some ways the hard-fought Ohio contest is the mirror image of the one in Michigan, where trial lawyers and labor unions have mounted a major effort to knock off conservative justices Clifford Taylor, Robert Young and Stephen Markman in next week's vote (see Aug. 25-27, May 9, Jan. 31).

MORE: editorials, Cincinnati Post, Sept. 30, and Cleveland Plain Dealer, Oct. 29; Spencer Hunt, "Business, GOP work to boot Resnick", Cincinnati Enquirer, June 25; William Glaberson, "A Spirited Campaign for Ohio Court Puts Judges on New Terrain", New York Times, July 7 (reg); websites of Justice Alice Robie Resnick (incumbent) and challenger Terrence O'Donnell, Justice Deborah Cook (incumbent) and challenger Tim Black.  The Ohio Chamber of Commerce has come under fire for supporting a group that has run hardball advertising against Resnick: Lee Leonard, "Sideswiping political ads ought to be ruled out of bounds", Columbus Dispatch, Oct. 23; Randy Ludlow, "Resnick attack is ugly", Cincinnati Post, Oct. 21 (DURABLE LINK).

October 30 -- Cornfield maze as zoning violation.   Zoning authorities in Snydersville, Pa. have sent a violation notice to father and son farmers Jake and Stuart Klingel.  Their offense?  Carving a maze through their cornfield and opening it to the public. ("Going in Circles?", AP/Fox News, Oct. 6).

October 30 -- $20 million for insolvency trustee?   "Former Securities & Exchange Commission chairman Richard Breeden, 50, could make more than $20 million as the court-appointed trustee of Syracuse's fraudulent, failed Bennett Funding Group. While a judge has the final say, Breeden could get a statutory 3% of what he recovers for creditors, less $642,000 in annual salary and expenses, and less a one-time $250,000 bonus. To investors facing an 82% haircut, he snaps, 'I'm worth every penny of it.'" (Dorothy Pomerantz, "The Informer: Make That Breeden Funding", Forbes, Sept. 4).

October 27-29 -- "Lawyer take all".   Just as lawyers used to be barred from taking contingency stakes in their clients' lawsuits lest they be tempted to push overly aggressive positions on their behalf, so they used to be discouraged from taking equity stakes in businesses they advised, lest they be tempted to assist in regulatory evasion or sharp financial practices.  "In time, the dollar signs got bigger than the ethical misgivings."  Now, following major windfalls obtained by California tech lawyers who took holdings in clients' stock, big law firms on the East Coast are rushing to emulate the practice.  (Chana Schoenberger, Forbes, Oct. 16).

October 27-29 --"Yankees Must Step Up to Plate in Civil Rights Action".   A judge has ordered to trial a case filed against the New York Yankees by a black woman who says she was told she could not enter the stadium restaurant wearing only a tank top, although once inside she noticed white women dressed in that manner.  "The club's dress code, which is printed outside the entrance to the club and on the back of the admission pass, prohibits the wearing of 'tank tops . . . thongs or any other abbreviated attire.'"  Lawyers for the Yankees said the plaintiff, V. Whitney Joseph, was let into the restaurant after she went back to her car and put on a t-shirt, and said the brief inconvenience should not be enough to support a federal lawsuit, but a judge said Joseph should be allowed to reach a jury with her claim that the dress code had been inconsistently applied. (Michael A. Riccardi, New York Law Journal, Oct. 20).

October 27-29 -- Judge rules against Tattered Cover.   Fears about free expression notwithstanding, a Denver judge has ruled that the city's famed Tattered Cover book store can be forced to turn over customer purchase records to narcotics police seeking to identify the owner of two books on drug manufacturing found at the scene of an illegal methamphetamine laboratory (see April 28).  (Susan Greene, "Judge: Cops can seize bookstore records", Denver Post, Oct. 21).

October 27-29 -- Patients' Bill of Wrongs.   "The ground is thus set for an uneasy alliance between the physicians who staff HMOs and MCOs and health care consumer organizations. Both, for different reasons, would like to neuter the managed care organizations by removing from their management teams the power to control physician practice.  Yet by so doing, they do more than remove excessive intervention. They necessarily compromise, perhaps fatally, the critical cost containment functions that these organizations must supply if they are to survive at all. . . . In the short run, physicians will love the creation of a system that promises a restoration of their autonomy and insulates them from the costs of their mistakes after they settle their case out cheaply. . . . But in truth a rather different agenda is at work here, which becomes evident from looking at the one exclusion to the proposed Patients Bill of Rights. It seems not to apply to the United States Government in its role as the provider of health care services through Medicare or Medicaid. The proposals therefore are designed to cripple the private programs which compete in the political arena with government-supplied health care."  (Richard Epstein (University of Chicago Law School), "Managed Care Liability", Manhattan Institute Civil Justice Memo #39, Sept.)

October 26 -- Lab mice paperwork.   "In a couple of years, medical progress could come to a screeching halt when it slams up against new regulations to be written by the Agriculture Department.  The regs will extend the Animal Welfare Act to the millions of mice, rats, and birds used in lab experiments. When that happens, researchers will have to file papers for each individual critter. By the time they get through with the paperwork they might have just enough time to turn out the lights before going home.

"This all results from a settlement the Department made with the Alternatives Research and Development Foundation (an arm of the Anti-Vivisection Society) and Kristine Gausz, a psychology student at (really) Beaver College. Ms. Gausz said in an affidavit that the sight of rats being 'subject to deplorable living conditions' was 'an assault on her senses' that left her 'personally, aesthetically, emotionally, and profoundly disturbed.'... Perhaps the next thing medical researchers should try to find is a cure for the common lawsuit."  ("Leash lawsuit" (editorial), Richmond Times-Dispatch, Oct. 23).

October 26 -- Drunk-driving standards nationalized.  Dealing a blow to principles of local control as well as rural hospitality, the federal government will arm-twist all states into adopting 0.08 blood alcohol standards by 2004 under legislation just signed by President Clinton as part of a transportation bill.   "The .08 percent limit is clearly only a way station on the road to making life miserable for social drinkers. MADD's [Mothers Against Drunk Driving's] Web site now calls for lowering the BAC limit to .05 percent," writes Providence Journal columnist Froma Harrop ("Phonies for .08 - Harassment of social drinkers", Oct. 8; "Clinton signs bill to lower drunken driving standards", AP/Dallas Morning News, Oct. 23).

October 26 -- New unfairness for old.   Don't assume voters or politicians are anti-gay just because they harbor doubts about setting up sexual orientation as a new category in job bias law, as would happen under the proposed Employment Non-Discrimination Act (ENDA).  "Why does the term 'special rights' have such political potency?  Because by now most people have had personal experience with the way employment discrimination laws operate.  Members of protected classes are not equal, they're super-equal, enjoying extra job security and other job-related privileges not afforded the average worker."  Quotes our editor (Robyn Blumner, "Laws Aimed at Correcting Discrimination Have Created New Types of Unfairness", Tribune Media/Salt Lake Tribune, Oct. 20).  See also Nigel Ashford, "Equal Rights, Not Gay Rights", reprinted at Independent Gay Forum.

October 25 -- "Power lawyers may sue for reparations".   More details about the plans of Willie Gary and other lawyers to file lawsuits demanding trillions of dollars in black reparations (see Letters, Oct. 19).  Planned are "a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery's aftermath."  Participants "met last month in Washington at Transafrica, a lobbying group that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed."   Participants include Richard Scruggs, Johnnie Cochran, Jr., Harvard Law's Charles Ogletree, author Randall Robinson, "Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; ... and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year."  Sweet "also plans to sue history book publishers that give blacks short shrift," which suggests that he himself may give the First Amendment short shrift.  "We are a nation of litigators. That's what we do. We go to court," said Harper's editor Jack Hitt.  (Amy Martinez, Palm Beach Post, Oct. 23).

October 25 -- "Laptop lawsuit: Toshiba, feds settle".   Piling on the $1 billion-plus class action settlement, the U.S. government is now extracting money from Toshiba over its flawed laptops.  Still in very short supply: evidence that the glitch caused data loss in any real-world situations (Reuters/ZDNet, Oct. 13, with reader discussion).

October 25 -- South Carolina tobacco fees: how to farm money.   Lawyers who represented the state of South Carolina in the Medicaid-recoupment litigation will get a whopping $82.5 million; it wasn't easy to argue that the mostly pro-tobacco Palmetto State had been instrumental in nailing the cigarette industry, but the lawyers found a golden rationale for large fees in their having been assigned to speak up for the interests of tobacco farmers like those in South Carolina.  Since lawyers representing late-to-sue North Carolina, Kentucky and Tennessee (see May 2) are also reportedly making the we-represented-farmers argument in their own fee quest, the tobacco caper may go down in history as the most richly compensated instance ever of farmer "representation" -- with no need for any control of the attorneys by actual farmers, of course.  The secretive arbitration panel voted along its now-familiar two-to-one lines, with dissenter Charles Renfrew charging that the award was a windfall and "grossly excessive", but as usual being outvoted by the other two panel members.  ("Panel says $82.5 million lawyers' fees are fair", AP/CNN.com, Oct. 24).

October 24 -- Turn of the screw.   Revealing article in Philadelphia Inquirer magazine tells the story in detail of how lawyers whipped up mass litigation against companies that make screws used for bone-setting in spinal and other orthopedic surgery, alleging that the devices caused all manner of dreadful injuries.  As so often the mass client recruiting got under way in earnest after a scary and misleading report on network TV, this time on ABC's "20/20", attacked the product as unsafe.  Since most orthopedic surgeons continued to favor the screws' use, lawyers turned for assistance to a Texas dermatologist who had gone to prison and lost his medical license in the 1980s for illegal distribution of prescription drugs, and who after release had set up shop as a go-between for lawyers who needed medical experts.  After this physician "attended an organizational meeting with plaintiffs' lawyers in Philadelphia, about 20 lawyers with bone screw cases enlisted his services," and he proceeded to locate for them a Florida orthopedic surgeon who then cranked out about 550 opinions for the lawyers' use -- without actually examining the patients on whose behalf they were suing.  "Invariably, [he] concluded, with scant explanation, that bone screws caused injury."  Eventually, Judge Louis Bechtle barred all 550 of the Florida doctor's reports after one of the doctor's employees testified that she'd been ordered to destroy tapes of telephone calls in which the Texas dermatologist/expert recruiter had dictated the language of the medical reports he expected the doctor to submit.

According to other sworn depositions, plaintiffs who rejected lawyers' entreaties to sue were surprised to learn that cases had been filed in their names anyway; this happened, for example, to patients from California, Pennsylvania and Minnesota who did not blame the screws for their health problems. "There were no consequences for the lawyers who filed those suits."  Most of the story is told through the eyes of the best-known defendant in the cases, a company named Sofamor Danek, which chose to fight rather than pay; eventually it enjoyed outstanding success in repelling the suits, losing only one of 3,200 cases it faced, that one currently on appeal.  But its vindication has come at a steep cost: $75 million in legal expenses, and who knows what unquantifiable costs.  No wonder one of its competitors, AcroMed, gave up and agreed to pay $100 million to resolve 5,000 of the actions.  (L. Stuart Ditzen, "The bone screw files", Inquirer magazine (Philadelphia Inquirer), Aug. 27; David F. Fardon, M.D., "President's Message", North American Spine Society, Jan. 1997; "Third Circuit Denies Request for Mandamus Relief in Pedicle Screw Suits", NASS, Jan. 1998).

MORE: The Health Research Group of Ralph Nader's Public Citizen established a clearinghouse for plaintiff's lawyers suing screw manufacturers, among other clearinghouses it runs for plaintiff's lawyers, and whose goals include that of "generat[ing] media attention for the pertinent issue".  Among support groups for those who believe themselves victimized by the devices is Pedicle Screw'd.  The North American Spine Society, a professional organization, was named as a defendant in many lawsuits because of its educational seminars on the use of screws, which lawyers charged were really a conspiracy to promote the devices.

October 24 -- Monitor vote fraud, get sued for "intimidation".   Although ballot box irregularities, 109-percent precinct turnouts and other indicators of vote fraud continue as a very definite problem around the country, "anyone who combats vote fraud comes in for abuse. The Justice Department has become expert at raising cries of 'voter intimidation' at any attempt to monitor polling places. Last week Justice dispatched investigators to Fort Worth, Texas, merely because a political activist there distributed leaflets alleging Democrats were casting absentee ballots on behalf of shut-in voters. When the Miami Herald won a Pulitzer Prize for its reporting on the fraud in that city's mayoral election, the Pulitzer jury noted it had been subject to 'a public campaign accusing the paper of ethnic bias and attempted intimidation.'  Local officials who've tried to purge voter rolls of felons and noncitizens have been hit with nuisance lawsuits alleging civil-rights abuse." (John Fund, "Political Diary: Phantom Voters", Opinion Journal (WSJ), Oct. 23).

October 23 -- Election roundup.  "If you’re a swing voter, vacillating between Bush and Gore, here’s one compelling reason to vote for the former: tort reform," writes New York Press editor Russ Smith in his "Mugger" column.  He cites the recent hot-pickle case (see Oct. 10) and says the "simple solution" is loser-pays ("Gore's Next Move?", Oct. 16 (see item #2).  "If trial lawyers had a dashboard saint, it would be Ralph Nader", but this time around they're not giving him money, lest they take votes away from their favorite: despite Gore's selection of a running mate with strong legal reform credentials, "trial lawyers are so anxious to see the vice president elected, I doubt very seriously if [Lieberman] will make one bit of difference," says ATLA president Fred Baron.  (Bob Van Voris, "The Politics of the Practical", Corporate Counsel/Law.com, Oct. 19).   Governor Bush's proposal to protect educators against needless lawsuits wins applause from New York Post columnist Arnold Ahlert ("Dubya Stood Up To Parents, Too", Oct. 20).  If Vice President Gore in his current demagoguish attack-mode were handed a big bill for his child's orthodontia, he might start railing against "Big Dentistry": "In the end, Gore's cartoonish view of big business does a disservice both to him and to the American people. He knows life is more complicated than he's letting on," write Steven Syre and Charles Stein of the Boston Globe ("Gore proves big on bashing big business", Sept. 28).  And in West Virginia, where asbestos trial lawyer Jim Humphreys had previously been thought a prohibitive favorite for a U.S. House seat after spending an eye-popping $5 million on his campaign, Republican candidate Shelley Moore Capito, daughter of a former governor, is putting up a surprisingly strong race and might pull off an upset in what's shaping up as an unusually strong year for the GOP in the mountain state (Matthew Rees, "Will West Virginia Go Republican?", Weekly Standard, Oct. 23, not online).

October 23 -- Wheelchair marathon suit.   After getting sued last year, the New York Road Runners Club, which organizes the New York City Marathon, agreed to establish a separate division of the race for entrants in wheelchairs, and award trophies to the winners.  That wasn't enough to keep it from being sued again, this time by six disabled entrants who complained that the club violated the Americans With Disabilities Act "by moving the marathon start time for 60 disabled people not in wheelchairs from 8 a.m. to 8:40 a.m.", a less convenient time for some entrants since it might require them to finish after dark.   The man coordinating the wheelchair side of the 26.5 mile event, which will be held November 5, called the new lawsuit "unbelievable" and "truly frivolous."  ("Lawyer Criticizes 'Disabled' Suit", AP/FindLaw, Oct. 19).

October 23 -- No breast cancer link.   A major federal study recently helped lay to final rest fears of an association between silicone breast implants and breast cancer, yet the federal agency in charge seems to have gone out of its way not to publicize the reassuring results.  (Denise Dowling, "Covering up the breast", Salon.com, Oct. 9).  See also Nov. 29; Stuart Bondurant et al, "Safety of Silicone Breast Implants", Institute of Medicine, 1999; "Off the Lawyers' Reservation" (profile of Kathleen Anneken), The American Enterprise, Sept./Oct. 1998).

October 20-22 -- Product liability criminalized?   Green presidential candidate Ralph Nader has called for criminal prosecutions in the Firestone case, where failed tires have been blamed for more than 100 highway deaths.  "A Harvard-Brookings Institution study estimates that the downsizing of vehicles caused by fuel economy standards results annually in 2,200 to 3,900 deaths," notes a Detroit News editorial.  "Consumer advocates like Mr. Nader support these fuel efficiency standards and want them increased, which could kill more people. The question becomes: Should certain consumer advocates be accused of criminal neglect?"  ("How Many Deaths Are Truly Criminal?", Detroit News, Oct. 14).  Cartoonist Henry Payne, of the same paper, has a similar take on the matter of federal mandating of airbags, which turned out to harm numerous children: Oct. 12 (via Junk Science).

The U.S. Congress has rushed to act before its adjournment on a new federal law criminalizing some product safety matters, but the Federalist Society Criminal Law & Procedure Group earlier this month sponsored a discussion on Capitol Hill which took a dim view of the idea.  "Most criminal statutes punish only where there is evidence beyond a reasonable doubt that a prohibited act was performed with mens rea, the guilty mind. ...  the proposed legislation is broad in its importation into penal law of the state of mind and knowledge standards of civil products liability law," argued George Terwilliger (White & Case).  Michael Krauss (George Mason U.) pointed out that the increased use of criminal charges in aviation accidents is now seriously hampering investigations after crashes given participants' reluctance to cooperate and right to invoke the Fifth Amendment against having to testify in cases of criminal (as opposed to civil) jeopardy (see Sept. 6).  Legislation to stiffen criminal penalties in product cases has passed both Houses this month, though its terms do not go as far as some of the earlier proposals. ("U.S. House Passes Tire Legislation", Reuters/FindLaw, Oct. 11).  See also Bob Van Voris, "Tire Deaths: Criminal Acts?", National Law Journal, Sept. 11.

October 20-22 -- CueCat's legal claws.   The CueCat is a new little gadget that works on the principle of a personal barcode scanner; its maker has sent it out free to subscribers of Forbes and Wired, Radio Shack catalogue customers, and others, for the purpose of making advertising more interactive (you scan a barcode on the ad, and a related webpage comes up in your browser).  Realizing that a working personal barcode scanner would have many uses other than ad-linking, Linux programmers promptly reverse engineered the device and published code which makes the CueCat usable for other scanning tasks, such as keeping inventories.  CueCat's maker, a company called Digital Convergence, objects to the reverse engineering and has also made legal rumblings hinting that in its view ordinary consumers may not have a right to use the device for purposes other than the intended one -- even though the general rule is that if someone sends you an item through the mails for free, you're at liberty to use it as you wish.  (Neil McAllister, "The Clause of the CueCat Legal Language Could Shut Down Hardware Tinkerers", SFGate, Oct. 11).

October 20-22 -- Sweepstakes, for sure.  Last month class action lawyers extracted a $33 million settlement from American Family Publishers, plus $8 million in legal fees, over allegedly deceptive practices in its magazine-selling sweepstakes.  "Refunds will be distributed among the more than 143,000 people who filed claims.  The refunds will be allocated in proportion to the claimants' purchases in excess of $40 per year or 'their total purchases influenced by the belief that a purchase was either necessary to win or enhanced their chances of winning,'" though it is not explained how it will be possible to verify claimants' self-reports of having been influenced by such beliefs.  Among the plaintiff's-side law firms expected to split the fees are the Belleville, Ill. firm of Steven Katz (see Nov. 4, 1999) and San Francisco's Lieff, Cabraser.  Time Inc., a defendant in the action and the owner of sweepstakes firm Magazine Associates, will be footing the bill; American Family Enterprises is in Chapter 11 bankruptcy.  (Mary P. Gallagher, "Sweepstakes Class Action Settles for $33M, and $8M in Legal Fees", New Jersey Law Journal, Sept. 19).

October 20-22 -- ABA as liberal lobby.   Boston Globe columnist Jennifer Braceras says it's past time to end the American Bar Association's gatekeeper status in accrediting law schools: "the ABA is not a trade association dedicated to preserving the integrity of the legal profession [but] a political lobbying group that represents the interests of a small, but powerful, liberal elite."  ("Call the ABA what it is: a liberal lobbying group", Oct. 19).

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