ARCHIVE -- AUGUST 2001
August 10-12 --
Smile-flag lawsuit. Dr. Patricia Sabers, a dentist in
Sarasota, Fla., sometimes flies a colorful pennant adorned with smiles
outside her office, but now a rival dentist, Mitchell Strumpf, is suing
her, saying the smile on her flag is a distinctive design that he registered
as a service mark some years
ago and which he thus has the exclusive right to display in the area. "Sabers
said her generic-looking flag comes from a dental supply company catalog".
Sabers "should get her own service mark," said Strumpf's attorney, Michael
Taaffe. "It's not a laughing matter." (Kelly Cramer, "Smile logo brings
frowns", Venice Herald-Tribune, July 31).
August 10-12 --
Perils of extraterritorial law. Elite opinion in the U.S.
has been relatively uncritical toward the idea of putting unpopular foreign
leaders on trial outside their home country for outrages committed in their
official capacities, but the policy could easily backfire against us given
that there are an awful lot of people and factions around the world aggrieved
at the United States and its leaders, observes the former chief of staff
of the Senate Foreign Relations Committee (Pat M. Holt, "The push for human
rights could hurt Americans", Christian Science Monitor, Aug.
2). And agitation continues for a lawsuit against the U.S. in
international courts to blame us for global warming and our failure to
back stronger steps against it (Andrew Simms, "Global Warming's Victims
Take U.S. to Court", International Herald Tribune, Aug. 7).
August 10-12 --
School email pranksters to Leavenworth? Sen. Robert Torricelli
(D-N.J.) recently introduced a bill called the School Website Protection
Act of 2001 which would provide that anyone who "knowingly causes the transmission
of a program, information, code, or command, and as a result of such conduct,
intentionally affects or impairs without authorization a computer
of an elementary school or secondary
school or institution of higher education" will to go federal prison for
up to 10 years." Critics say the bill "is worded so vaguely it would
turn commonplace activities into federal crimes to be investigated by the
U.S. Secret Service." "Sending one unsolicited e-mail affects a computer,"
says Jim Dempsey, deputy director of the Center for Democracy and Technology.
"If I send an e-mail to my student's teacher and I didn't have her permission,
I violate the act." ("Senator Targets School Hackers", Declan McCullagh,
Wired News, Aug.
August 10-12 --
New in Letters. The operator of an online pet store writes
in to amplify our coverage of his recent suit against participants in a
hobbyist listserv (more).
August 10-12 --
U.K.: Labour government proposes curbs on malpractice awards.
In Britain, the newly reelected Labour government of Tony Blair is proposing
to limit skyrocketing awards in medical
malpractice cases against the National Health Service. It wants
to adopt "fixed tariffs of compensation", i.e. prescheduled amounts for
types of injury that can be looked up in tables in lieu of individualized
argumentation. Also in the works is a shift to in-kind awards,
such as the provision of future nursing services, instead of large lump
sums. "The Government is keen to cut the amount paid in lawyers'
fees -- which often exceed the damages awarded by the courts."
"The tariff scheme is similar to one brought in by the previous Tory
government -- amid stiff Labour opposition -- to cut the cost of criminal-injuries
compensation. Mr Milburn [Health Secretary in the Blair Cabinet]
is determined to take an axe to the spiralling cost to the health service
of legal claims which he believes are being driven by profiteering lawyers.
'We need to get the lawyers out of the operating theatres and off the backs
of doctors -- and get doctors out of the courts,' said a Health Department
aide. 'The amount of litigation is rising and causing distress not
only to NHS staff but also to patients who find themselves drawn into protracted
and upsetting legal battles.'" The Bar Council, representing barristers,
has already attacked the proposals. (Joe Murphy and Jenny Booth,
"Labour blocks big payouts to victims of NHS blunders", Sunday Telegraph
August 9 -- Why
we lose workplace privacy. Employers are monitoring their
employees' email, web surfing logs and hard drives more than ever these
days, and the number one reason is to protect themselves from lawsuits.
"Almost every workplace lawsuit today,
especially a sexual harassment case,
has an E-mail component," says one expert. Plaintiffs' lawyers subpoena
hard drives in search of sexually oriented jokes or other material they
can use to build a case, and rather than leave themselves vulnerable many
companies conduct pre-emptive searches before disputes arise. (Dana
Hawkins, "Lawsuits spur rise in employee monitoring", U.S. News &
World Report, Aug.
August 9 -- "Nudist
burned while fire-walking files lawsuit". "A nudist
whose feet were burned while fire-walking has filed a lawsuit that accuses
event organizers of leading participants to believe the stunt was safe."
The suit by Eli Tyler of El Cajon claims that the organizer "told participants
the walk would be 'a safe and spiritual experience'" but that seven participants
were hospitalized with severe burns to their feet. The owner of the
resort where the event took place, who is also named as a defendant in
the action, "said participants were warned of the dangers and each agreed
not to sue if they were injured." (AP/Sacramento Bee,
August 9 -- Forbes
on lead paint suits, cont'd. The "suits claim the companies
misrepresented the paint
as safe for use around children. Evidence? In 1920 National Lead told retailers
to be nice to children because they might someday be customers. More: In
1930 the company distributed coloring books with poems and a cartoon drawing
of its Dutch Boy character. Hard to imagine children having much
influence on paint purchases." (Michael Freedman, "Turning Lead Into Gold",
May 14 (reg)).
August 7-8 -- Victory
in California. By a 5-1 margin, the California Supreme
Court has ruled that crime victims cannot sue gun
manufacturers over criminals' misuse of their wares. In doing
so it reinforces a trend so clear that some day it might even sink in to
the folks over at the hyperlitigious Brady
Campaign: "Every state high court and federal appellate court in the
nation to consider such lawsuits has ruled that makers of legal, non-defective
guns cannot be sued for their criminal misuse." ("California Supreme Court
Says Gunmaker Not Liable in Killing Spree", AP/Fox News, Aug. 6).
August 7-8 -- Wrong
guy? Doesn't seem to matter. Antonio Vargas, a bus
driver in Northern California, has the same name as an Antonio Vargas who
owes child support in San Bernardino
County, in Southern California. He's been trying to disentangle himself
from attachments, process servers and other legalities aimed at the other
Mr. Vargas, but with at best temporary success -- and it's been going on
for twenty years, he says. An official with the desert county
acknowledges that Mr. Vargas's protestations of being the wrong guy were
probably ignored for a while; so many men falsely use that excuse that
why should they listen?, seems to be the official's reasoning (Dan Evans,
"It's the wrong Vargas", San Francisco Examiner, Aug.
August 7-8 -- Trial
lawyers vs. OxyContin. The breakthrough pain medication,
a timed-release opioid, has brought unprecedented relief to sufferers from
advanced cancer and chronic disease but can result in addiction if improperly
prescribed and is unusually easy to abuse on purpose: users crush the time-release
capsules into a powder that yields a heroin-like high when snorted or injected.
Now, amid public alarm about its emergence as "hillbilly heroin", lawyers
have filed billions of dollars in claims against the drug's
manufacturer, Purdue Pharma, distributor Abbott Labs, and other companies;
they're also advertising heavily for clients, and the state of West Virginia
has stepped in with its own suit. Well-known Cincinnati tort lawyer
Stanley Chesley, of breast-implant and hotel-fire fame, is "working with
a group of lawyers from Ohio, Kentucky and West Virginia on similar cases."
If such litigation drives the drug off the market, a million or more legitimate
users may be forced back to lives of agonizing pain, but that won't be
the lawyers' problem, now, will it?
SOURCES: "Maker of OxyContin is hit with lawsuits", AP/Baltimore
July 27; Paul Tough, "The Alchemy of OxyContin: From Pain Relief to Drug
Addiction", New York Times Magazine, July
29 (reg); National Clearinghouse
for Drug and Alcohol Information; Amanda York, "1st Ohioan named in
Oxy suit", Cincinnati Enquirer, July
10; Norah Vincent, "A New 'Worst' Drug Stirs Up the Snoops", Los Angeles
19; Eric Chevlen, "A Bad Prescription from the DEA", Weekly Standard,
4; "W.Va. files first state suit against OxyContin firms", AP/Charleston
Mail, June 12; Common
Sense for Drug Policy; "Oxycontin Lawsuit Aims For Class-Action Status",
Roanoke Times, June
more links (Google search on "Oxycontin + lawsuits"). If you
click on "OxycontinInfoCenter.com",
a sponsored link on Google, you
get "Oxycontin law info and lawyers who specialize in Oxycontin litigation"
(see also July 25).
August 7-8 -- Dotcom
wreckage: sue 'em all. Class
action firms are suing not only investment banks and directors of failed
but also executives and lenders. (Joanna Glasner, "Bankrupt? So What?
Lawyers Ask", Wired News, Aug.
August 7-8 -- "Judge
orders parents to support 50-year-old son". "In what could
turn out to be a landmark decision, a Ventura County Superior Court judge
ordered a Ventura couple to support their 50-year-old son indefinitely.
Judge Melinda Johnson ruled two weeks ago that James and Bertha Culp of
Ventura pay their son David Culp $3,500 a month for living expenses because
he is incapable of supporting himself. Culp suffers from depression
and bipolar disorder." The son had practiced as an attorney for 19
yearss, but his practice fell apart and he went on disability. "Johnson
based her ruling on state law, Family Code section 3910(a). It states that
'the father and mother have an equal responsibility to maintain, to the
extent of their ability, a child of
whatever age who is incapacitated from earning a living and without
sufficient means,'" language which the judge called "unambiguous on its
face". Representatives of the National Alliance for the Mentally
Ill called the decision a "bad judgment" that could "set a terrible precedent".
(Leslie Parrilla, Ventura County Star, Aug.
August 6 -- "Airline
restricts children flying alone". America West Airlines,
changing its previous policy, has announced that it will no longer allow
children of 11 years or less to fly alone on connecting (as opposed to
nonstop) routes. Last month a young girl traveling from L.A. to Detroit
was mistakenly allowed to board a connecting flight to Orlando, and it
took nearly a day before she was reunited unharmed with her father.
The father, Bill McDaniel, said he was thinking of hiring a lawyer and
suing because the airline's proffered
free ticket and other compensation was not enough. So now all families,
including those who believe their kids can handle the responsibility, stand
to lose a freedom that saves them a lot of money as well as hassle (Channel
3; "Airline Puts Young Girl On Wrong Plane", July
August 6 -- Big
fish devour the little? After hobbyists on a listserv
dealing with aquatic plants criticized one online pet store for allegedly
"horrible" service and worse, its operator proceeded to sue various individual
posters who he says defamed his company
with such comments. His complaint
asks for $15 million in compensatory and punitive damages. (Aquatic
Plants Mailing List listserv; discussion;
forums; Usenet rec.aquaria.freshwater.plants)
(see letter to the editor from Robert Novak, owner of PetsWarehouse.com,
10)(see extensive update on case May
August 6 -- When
trial lawyers help redesign cars. Class action lawyers
suing GM over its old C/K full-size pickup trucks are venturing onto what
you might think is perilous ground by proposing a retrofit change to the
design, with effects on performance that can't be foreseen with complete
certainty. Aren't they worried that if the design turns out to malfunction
in some way they'll be held responsible for the consequences? (Well,
no, they probably aren't, since they'll just find some way to blame the
carmaker if that happens.) (Dick Thornburgh (former U.S. attorney
general), "Designing Ambulances and Retrofitting Class Actions", National
Law Journal, July 18).
August 6 -- Mailing
list switch. If you've been on the list to receive our
periodic announcements of what's new on Overlawyered.com, you should
by now have received an email from Topica.com, our new list-hosting service,
inviting you to continue your subscription. To do so, just respond
to their email. If you take no action you'll automatically
be dropped from the list as ListBot closes down. If you discarded
or didn't receive the Topica email, or would like to join the list for
the first time (it's free), just visit our mailing
Another logistical note: we've now established a separate archives page
that makes it easier to navigate Overlawyered.com's archives without
repeatedly having to download large pages. Just as we encourage you
to bookmark our search page if you
expect to perform frequent searches at our site, so we encourage you to
bookmark the new archives page
if you expect to browse our archives often.
August 3-5 -- "Lawyers
pay price for cruel hoaxes". "Two Florida lawyers, whose
paternity hoaxes last year cost families of four Alaska Airlines crash
victims hundreds of thousands of dollars to rebut, finally will have to
pay for a smidgen of the damage they inflicted." Attorneys Robert Parks
and Edgar Miller of Coral Gables, Fla. filed suits on behalf of four distinct
sets of supposed secret Guatemalan heirs claimed to have been fathered
by men who perished on the doomed flight
without direct heirs (see Nov. 29, 2000,
10, 2001). The suspiciously multiple nature of the filings was
noticed only by chance, and the outraged families of the deceased had to
spend hundreds of thousands of dollars to fend off the phony heirs' claims.
Now, Parks and Miller have agreed in a court-ordered mediation to pay $225,000
toward the families' costs; Seattle lawyer Harold Fardal, who assisted
their claims, will help split the cost, though it doesn't begin to cover
the expense the families faced in rebutting the claims. "Miller, by his
own admission, has [represented survivor claims] as many as 100 times before,
mostly in Central and South America."
To investigate the phony claims, the surviving Clemetson and Ryan families
sent investigators to Guatemala, where the supposed secret heirs lived.
"But an investigator and a court-appointed guardian found that the birth
records were forged. They found that the alleged grandmothers couldn't
keep the girls' names straight, couldn't say where their own daughters
were born or how they died, couldn't remember their own addresses and had
no knowledge of the details alleged in the inheritance claims. In
February, DNA tests proved the girls weren't related to the men."
The families now say they may file a complaint with the Florida
bar against Parks and Miller. (Candy Hatcher, "Lawyers pay price
for cruel hoaxes", Seattle Post-Intelligencer, Aug.
2; "Claims against two Flight 261 victims thrown out" (AP), Feb.
7; "Heirs claimed in Flight 261 twist" (AP), Nov.
According to Seattle Post-Intelligencer columnist Candy Hatcher,
Seattle attorney Mark Vohr, who later withdrew from the case, sent the
same photograph of two little Guatemalan girls to two different
families against whom he was pursuing secret-heir claims. And: "The
woman who was providing temporary housing for the girls and their 'grandmothers'
said she was working with a 'lawyer' in Florida who had helped her when
both her husbands died in aviation disasters in Central America.
The 'lawyer' turned out to be an investigator for the Florida lawyers."
("False claims add to the agony of a tragedy", Feb.
26). See also Richard Marosi, "Unexpected 'Heirs' of Flight
261", L.A. Times, Jan. 31, no longer online at Times site
August 3-5 -- More
from Judge Kent. Yesterday we linked to a scorching opinion
by Judge Samuel Kent of the U.S. District Court for the Southern District
of Texas, excoriating what he saw as incompetent pleadings by the lawyers
on both sides of a maritime injury case. Reader Keith Rahl points
out that this is just the most recent in a series of colorful opinions
from Judge Kent's pen, and directs our attention to two of them that have
been reprinted at The Smoking Gun: one in which he orders a change
of venue (to the District of Columbia) for a suit that lawyers for the
of Bolivia had filed in his Galveston courtroom against the tobacco
industry; and this
one turning down a defendant's request to transfer a case to Houston
due to claimed travel inconveniences.
August 3-5 -- Dra-clonian.
By a margin of 265 to 162, the U.S. House of Representives has voted "to
approve the Human Cloning Prohibition Act of 2001. It would impose
steep criminal and civil penalties on any individual violating the ban
-- even scientists who create cloned human cells solely for research purposes.
The penalties make participation in human cloning in any way -- from creating
cloned human cells to patients receiving medicine based on such research
done abroad -- subject to a felony conviction that could bring a 10-year
prison term and, if done for profit, civil penalties of more than $1 million."
(Megan Garvey, "House Approves Strict Ban on Human Cloning", L.A. Times,
1; Kristen Philipkoski, "What Side Effects to a Clone Ban?" Wired
1) The best critique we've seen of the stampede to legislate
has come from Virginia Postrel at her VPostrel.com
(several entries in recent weeks; also check out her new commentary on
August 2 -- Fee
fights. They're worse than catfights, aren't they?
Lawyers are snapping and swatting at each other over the fee spoils of
several dubious but lucrative mass-tort cases. "Wallace Bennett,
former associate dean at the University of Utah's law school, is suing
well-known lawyer Robert DeBry, claiming his old friend is cheating him
out of money he earned while they worked together on national breast implant
litigation. ... Bennett was part of a legal team that included former U.S.
Sen. Frank E. Moss and former Utah Supreme Court Justice D. Frank Wilkins.
... [He] alleges breach of contract, intentional breach of fiduciary duty,
conversion and fraudulent transfer of assets, and usurpation of business
opportunities." (Elizabeth Neff, "Former U. of U. Dean Sues Ex-Law
Partner Over Fees", June 28, Salt Lake Tribune, no longer online
on Tribune site but Googlecached).
The breast implant campaign
was based on charges of systemic illness soon refuted in scientific studies,
which didn't stop trial lawyers from cashing in a $7 billion settlement.
Meanwhile: "Several of the plaintiffs' lawyers in the massive Orthopedic
Bone Screw case are putting the screws to each other as an ugly battle
has erupted" over how a court divided $12 million in fees deriving from
a $100 million settlement by Acromed Corp. Among the charges flying:
fraud, contempt of court and abuse of process. (More on the bone
screw litigation: Oct. 24, 2000.)
(Shannon P. Duffy, "Disgruntled Lawyers Sue in Louisiana to Get Bigger
Share of Bone Screw Fees", The Legal Intelligencer, July 18).
Last but certainly not least, anti-tobacco prof. Richard Daynard has followed
through on his pledge to sue legal sultans Richard Scruggs and Ron Motley,
claiming they'd promised to cut him in on a 5% contingency share of the
maybe $3 billion they stand to haul in from the tobacco
caper. "In his role as intellectual godfather of tobacco litigation,
Daynard has been quoted in news articles hundreds of times -- though always
as a public health advocate, never as a private litigator." (see April
21, 2000). Scruggs and Motley "said that if Daynard had indeed
been a member of their legal team, his attacks on a settlement proposal
favored by their clients, the states, would have been a serious ethical
lapse." (Myron Levin, "Tobacco Wars' Huge Legal Fees Ignite New Fight",
Los Angeles Times, May 20, reprinted
August 2 -- "Baskin-Robbins
lawsuit puts family in dis-flavor". The Janze family of
Alamo, Calif. is surprised to have gotten such a disrespectful reception
in the press and on the Web for its lawsuit against the ice cream chain
over a frozen confection strewn
with fizzy "Pop Rocks", a scoop of which they say sent their 5-year-old
daughter Fifi to the hospital. "Shrek Swirl" is "one of several ogre-related
treats tied to the animated movie 'Shrek'." Baskin-Robbins spokeswoman
Debra Newton "said the Janzes' complaint has been the only one reported
to the company. 'What we can tell you is that we have absolutely
no indication that there are any safety concerns whatsoever with Shrek
Swirl,'" Newton said. (Claire Booth, Knight-Ridder/Bergen County
(N.J.) Record, July 19).
August 2 -- "Ouch",
they explained. It's every lawyer's nightmare: to be the
target of a judicial opinion as scathing as this one from federal judge
Samuel Kent (S.D. Tex.). Neither side's attorney gets out unscorched
(Bradshaw v. Unity Marine, June 26, reprinted
at National Review Online).
August 1 -- Batch
of reader letters. Latest
assortment covers everything from exploding Pop-Tarts and special-ed
"mainstreaming" to small claims reform, IOLTA and zero tolerance, and includes
an explanation of an unusual photograph sent in by a reader.
August 1 -- "Businesses
bracing for flood of lawsuits after state court ruling".
"If you wear glasses, use a hearing aid or take medication for high blood
pressure, you now may be legally disabled in California." Sacramento's
homegrown version of disabled-rights
law is even more sweeping than the federal Americans with Disabilities
Act, and the divergence has been widened by a new state law that "significantly
broadens the definition of disabled and throws open the courthouse doors
to workers with a wide range of diagnosable ailments -- from depression
to chronic back pain." Things got even dicier "when a state appeals court
in Los Angeles ruled that the new law applies retroactively to potentially
thousands of cases that arose before Jan. 1, when the law went into effect.
Employers are bracing for an onslaught of claims, warning that the statute
signals open season on business." (Harriet Chiang, "Businesses bracing
for flood of lawsuits after state court ruling", San Francisco Chronicle,
29; Mike McKee, "California Disability Rules Declared Retroactive:
State Supreme Court May Have to Referee", The Recorder, July