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ARCHIVE -- AUGUST 2001 (II)


August 20-21 -- "Man suing after drunken driving crash".  Nashua, N.H.: "Three years ago, a Merrimack man crashed his Jeep in a Londonderry sand pit, killing a friend.  Now, he's suing the pit's owner and the couple who threw the party where he was drinking before the crash.  Albert Gordon, 36, charges Jay and Susan Barrett of Londonderry were negligent in letting him get drunk at a company party and didn't warn him and other guests of the dangers of four-wheeling in the sand pit next door.  He alleges the pit owner, Continental Paving Inc., should have done something to keep people off its property or warn them of the danger."  Gordon was convicted of aggravated driving while intoxicated; prosecutors said his "blood alcohol level after the accident was more than twice the legal limit for driving."  (AP/Boston Globe, Aug. 16) 

August 20-21 -- Jury orders Cessna to pay $480 million after crash.  Sure, go ahead and let trial lawyers swallow the light aircraft industry -- no doubt they'll do a better job running it. Tobacco-fee angle: one of the plaintiff's firms in the case is that of Fred Levin, who hauled in an estimated $300 million representing Florida in the tobacco suit, gave enough to the University of Florida's law school to get it named after himself, and clearly knows how to reinvest his winnings.   (Bill Kaczor, "Pensacola Jury Returns $480 Million Verdict in Plane Crash", AP/TBO.com, Aug. 16; Molly McMillin, "Jury says Cessna is at fault in crash", Wichita Eagle, Aug. 17; Shannon P. Duffy, "Florida Jury Sets $480 Million Verdict in Crash of Defective Plane", The Legal Intelligencer, Aug. 17). 

August 20-21 -- Welcome LinkyDinky, FluffyBunny visitors.  The popular best-of-the-web service LinkyDinky gives us a nod, describing Overlawyered.com as a site that "chronicles the sad (and scary) state of affairs due to our litigious attitudes, including bizarre examples of greed overcoming logic" (Aug. 15).  We've also newly won mention on FluffyBunny.com, which says of us: "Sites like this are always a good read when you're tired of the dozen shark stories, recaps of Chandra Levy timelines and discussions of the obvious" (first Aug. 16 item).  LinkyDinky, FluffyBunny -- could a pattern be developing here?  Also: Australia's Blackstump (Aug. 8) and HalluciNETting; Pop-o-ganda.com ("control- trademark - delete"), RidersForJustice.com ("links of interest to bikers"/"Freedom Fighter" section), Daily Frank weblog (July 26), Teri O'Brien ("speaker, author, motivator"), Laipple family of Tulsa, Okla., GentleWolf.com

August 20-21 -- Updates.  More new developments in familiar stories: 

*  By a 9-5 vote, the Fifth Circuit has paved the way for a new trial for Texas death row inmate Calvin Burdine on the grounds that his lawyer was asleep during parts of his trial.  The dissenting judges argued that Burdine's guilt was clear from his confession and other evidence and that his lawyer's alleged propensity to snooze off made no difference in the case's outcome.   The dissent "also noted that Mr. Burdine waited 11 years before raising the 'sleeping lawyer' claim and even praised [his lawyer's] performance after the trial." (see Feb. 12) (Diane Jennings & Ed Timms, "Court sides with inmate in sleeping-lawyer case", Dallas Morning News, Aug. 14). 

*  In California, a state panel has ordered Judge Patrick Couwenberg off the bench for lying extensively about his background during the process that led to his appointment, despite his lawyer's plea that Couwenberg "is a victim of a mental condition called 'pseudologia fantastica' for which he is undergoing treatment" and which causes him to fib in a compulsive way (see June 7).  (Erica Werner, "Los Angeles Superior Court judge removed from bench for lying", Sacramento Bee, Aug. 16; Sonia Giordani, "L.A. Judge Removed From Bench for Lies About Past", The Recorder, Aug. 17). 

*  "A federal judge has rejected a proposed settlement of an antitrust suit against the National Football League and its member teams over the pricing structure of the 'Sunday Ticket' on satellite television after finding that consumers weren't getting enough money and that the plaintiffs' lawyers were getting too much. ... [The judge said] courts have a duty to reject such settlements so that plaintiffs' lawyers will be discouraged in the future from bringing weak cases." (see June 5).  (Shannon P. Duffy, "Judge Rejects NFL Antitrust Settlement That Pays Lawyers Too Much, Consumers Too Little", The Legal Intelligencer, Aug. 20). 

*  In the eight-year-long saga that has pitted Marilyn Bartlett's demands for handicap accommodation against the resistance of the New York State board of bar examiners, federal judge Sonia Sotomayor has ruled that the board must allow Bartlett four days, rather than two, to complete the bar exam because of her dyslexia and learning disability (see our editor's column in Reason, Feb. 1999) (Mark Hamblett, "Learning-Disabled Woman Wins Added Time for New York Bar Exam", New York Law Journal, Aug. 17; Daniel Wise, "Review of Dyslexic's Bar Exam Ordered by 2nd Circuit", New York Law Journal, Aug. 31, 2000). 

August 17-19 -- Contrarian view on PBR.  "The managed care industry is not complaining that loudly about the latest legislation."  (George M. Kraw, "The Patients' Bill of Rights" (commentary), The Recorder, Aug. 10).  Also: Philip K. Howard, "A Cure for the Patient's Bill of Rights," AEI-Brookings Joint Center for Regulatory Studies Policy Matters #01-18 June; Karlyn H. Bowman, "Public Favors Patients' Bill of Rights, but It's Not a Top Priority," Roll Call, June 28

August 17-19 -- "The arithmetic of arsenic".  U. of Chicago law prof Cass Sunstein, a frequent contributor to the New Republic and mentioned as a possible Supreme Court pick in a future Democratic administration, examines the role of cost-benefit analysis in the recent EPA arsenic controversy, and concludes that reasonable assumptions could have tipped the decision either way: there is "no obvious, correct decision for government agencies to make".   (AEI/Brookings Joint Center for Regulatory Studies, Working Paper 01-10, Aug. -- abstract/full paper (PDF) (see also Apr. 18)) 

August 17-19 -- From the evergreen file: humiliation for dollars.   How much embarrassment would you be willing to put up with on the witness stand just to nab a few thousand dollars more in damages after a fender-bender in which "not even a taillight was broken"?  As much as this Connecticut couple?  (Colleen Van Tassell, "Good Thing It Wasn't A Tow Job", New Haven Advocate, March 11, 1999). 

August 16 -- Bias suits can tap personal assets of innocent higher-ups.  "Victims of housing discrimination have a direct claim on the personal assets of business owners and officers whose employees were at fault and need not go through the usual hurdles to pierce the corporate veil, the 9th U.S. Circuit Court of Appeals ruled on July 31."  The court ruled that a mixed-race couple and homebuilder could file suit against David Meyer, the founder of Triad Realty in Twenty-Nine Palms, Calif., over the discriminatory failure of one of the realty firm's agents to present the couple's bid on a house, and that Meyer's personal assets could be proceeded against if he were the owner or proprietor whether or not it could be shown that he knew anything about the discrimination.  (Gary Young, "Realtor Liable for Agent Bias, 9th Circuit Rules", National Law Journal, Aug. 14). 

August 16 -- "Deputies Sue Diabetic Driver They Beat After Traffic Stop".  Maryland: "Two Frederick County sheriff's deputies are suing a diabetic man they beat after a traffic stop, contending his complaints about the incident hurt their careers.  Eric J. Winer and Jeffrey A. Norris are seeking more than $68,000 from Frederick T. 'Tom' Moore IV of Virginia."  In 1998 officers Winer and Norris chased and blocked Moore's erratic truck on the assumption he was drunk, then beat and doused him with pepper spray and let their dog into his vehicle when he failed to respond to their commands.  It turned out, however, that he had been slipping into a diabetic coma.  "Moore spent four days in the hospital for dog bites and other wounds from the beating."  In their lawsuit, "the officers say the inquiries and publicity portrayed them unfairly.  They contend Moore's criticism of them in media interviews was 'highly offensive,' considering they had 'prevented serious harm, injury and/or death' to Moore."  (WJLA/Yahoo, Aug. 10). 

August 16 -- How Germans see American injury law.  "In Germany, lawyers and the media look upon the American tort system with a mixture of fascination, envy, and horror."  Perhaps surprisingly, the difference between the two systems is not so much in the substantive scope of liability; in fact, German law in some respects is more liberal than American, imposing a "duty to rescue" that American courts have rejected, for example.  Instead, the differences have more to do with damages: ours are both far higher and far more unpredictable.  "It is well documented that the scale of damages resulting from successful tort litigation in Germany is at least one order of magnitude lower than in the US.  Thus, where a broken leg in a car accident in New York City might produce a jury award of $300,000, in Berlin it would produce an award of around $30,000."  At the same time, "in comparison with the German tort system the American system is wildly more unpredictable at every level": many cases result in low compensation or none even though they seem as deserving as the jackpot cases. 

"The Germans find the variation in our damages awards totally unacceptable. ... [They feel] we should give the same amount to people for the same kind of injury.  The Germans enforce a semblance of order with respect to pain and suffering damages by collecting together all the damage awards produced in every trial court in Germany in a given year. This book, called the Tabellen, is published and used by judges and lawyers to estimate what a damage award in a new case should be."  The American system is "actively opposed" to any such approach (more on "scheduled compensation" abroad: Aug. 10). (Anthony J. Sebok (professor, Brooklyn Law School), "How Germany Views U.S. Tort Law", FindLaw.com, July 23) (via Arts & Letters Daily). 

August 16 -- New daily traffic record on Overlawyered.com.  Upwards of 11,700 pages served on Tuesday, helped along by that excellent John Leo column and by our first announcement mailing since we moved the list to Topica (though we bunglingly forgot to include in it a link to this site's front page, an omission we'll rectify in the future).  Thanks for your support! 

August 15 -- John Leo on Overlawyered.com.  The columnist pulls together a fresh batch of "news from the annals of zero tolerance and the continuing campaign to make the culture ever more deranged".  He gives generous credit to the website you are perusing at this very moment, which "reports brightly on the amazing excesses of the litigious society" ("It's a mad, mad world", U.S. News/TownHall.com, Aug. 14).  Some recent zero-tolerance cases he describes, which hadn't made it onto this site yet: "A New Jersey student made a baseball bat in shop class, then was expelled for refusing to hand it over to a teacher as a dangerous weapon.  A National Merit scholar in Fort Myers, Fla., missed her graduation ceremony and was sent to jail after a kitchen knife was found on the floor of her car.  She said the knife had fallen there when she moved some possessions over the weekend.  At a Halifax, Nova Scotia, school, a ban against throwing snowballs also prohibited all arm motions that can be interpreted as possible attempts to throw something at anyone." 

August 15 -- Navegar not nailed.  Pundit/law prof Erwin Chemerinsky was sure that Navegar's sued-over TEC-DC9 weapon, though it sold by the hundreds of thousands, had no legitimate uses whatsoever.  Notes Reason Online's Jacob Sullum: "it was galling how readily anti-gun activists and politicians leaped from the premise that thugs liked a given gun to the conclusion that no one else did".  ("The Evil Gun", Aug. 14; see also "California Dreamin'", WSJ/OpinionJournal.com, Aug. 10; "Gun makers' liability (editorial), Las Vegas Review-Journal, Aug. 7).  And given voter trends in last November's election, many national Democrats are racing to distance themselves from the agenda of the litigate-and-confiscate antigun groups.  "More than any other issue, some analysts say, unease about gun control helped defeat presidential candidate Al Gore in several traditionally Democratic Southern and border states -- any one of which would have been enough to put him in the White House." (Susan Page, "Democrats back off on firearms", USA Today, Aug. 14).  Similarly: James Dao, "New Gun Control Politics: A Whimper, Not a Bang", New York Times, March 11; Juliet Eilperin and Thomas B. Edsall, "For Democrats, Gun Issue Losing Its Fire", Washington Post, Oct. 20, 2000

August 15 -- "Girl from Ipanema is sued over the song she inspired".  "It was as a sultry 18-year-old that Heloise Pinheiro inspired Brazil's best-known tune.  Now aged 57, she is being threatened with legal action by the songwriters' heirs, who claim that her boutique, 'The Girl From Ipanema', infringes their copyright."  (Philip Delves Broughton, Daily Telegraph (U.K.), Aug. 13; "The churls from Ipanema" (editorial), Aug. 13). 

August 13-14 -- Why she's quitting law practice.  Karen Selick, a libertarian attorney who writes a column for Canadian Lawyer and practices in a small community in Ontario, is getting out of the business and explains why on her website.  To begin with, there's the aggravation and emotional wear and tear of matrimonial law, the bulk of her practice.  "Then thereís the state of the law itself.  When I started in this field in 1985, there was at least a modicum of cohesiveness to the case law.  That has now vanished completely.  Not only is the law different from what it was in 1985 -- itís different from what it was last month or last week. Once upon a time, you could give your clients a pretty good idea of the outcome they might expect if they went to court.  Now all you can tell them is that every case is a crapshoot."  And then there's the law's tilt against husbands and fathers, "to the point where representing women in a manner that protects you from negligence suits requires a lawyer to make claims that I consider to be unethical, while representing men means you are perpetually on the losing side."  ("A Twist on Gresham -- Bad Laws Drive Out Good Lawyers", undated, late July). 

August 13-14 -- "Shark-bite victim turns to Cochran".  By reader acclaim: "The family of a highly publicized shark-attack victim mauled while swimming at a Bahamian resort has consulted a famous legal barracuda to represent them in a possible suit against the hotel: Johnnie Cochran." The family of 36-year-old Krishna Thompson "has accused lifeguards at the Our Lucaya Beach & Golf Resort on Grand Bahama of lingering on the beach during the attack. ...  The resort has insisted that lifeguards acted swiftly in pulling Thompson out of the water. The resort's statements were backed by a Bahamian doctor who interrupted his morning stroll to help."  (Tere Figueras, Miami Herald, Aug. 10). 

August 13-14 -- "We often turn irresponsibility into legal actions against others".   Two events in the Tampa Bay area caught the eye of St. Petersburg Times columnist Robyn Blumner: the criticism that greeted the city of St. Petersburg for declining to cancel a free fireworks display in the face of an approaching lightning storm, even though it might tempt residents to go outside; and "a sexual harassment lawsuit filed by Nicole Ferry against the University of South Florida, in which the state of Florida agreed to give her $25,000" for having subjected the student to a sexually explicit photograph (warned of in advance) as part of her university art class.  The two news reports suggest to Blumner that our sense of personal responsibility and resilience is slipping fast, and remind her of a certain website which (among other functions) "documents the way predatory lawyers help people turn their personal failings into lawsuit fodder."  Which cases on this site does Blumner "find most appalling?"  Read the column and find out.  (July 15). 

August 13-14 -- Tobacco: judge cuts Boeken award.  In Los Angeles, Superior Court Judge Charles McCoy has upheld $105 million worth of a jury's $3 billion award to smoker Richard Boeken against Philip Morris (more).  The company has vowed to appeal, citing among other reasons the judge's refusal to admit evidence that would have shed light on Boeken's credibility, in particular his record of criminal convictions on fraud and other charges. (Anna Gorman, "Huge Award to Smoker Cut by Judge", L.A. Times, Aug. 10; Cadonna M. Peyton, AP/Daily Southtown, Aug. 10).  On the evidence exclusion issue, see "Tobacco Giant Cites Plaintiffís Credibility; Courts: Philip Morris Says Smokerís Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion," Los Angeles Times, July 29, summarized in Columbia Law School Faculty In the News, Summer 2001 (scroll to "Prof. Richard Uviller").  See also Paul Campos, "Outrageous verdicts are genteel theft", Rocky Mountain News (Denver)/Jewish World Review, June 9). 

August 13-14 -- Tobacco: Boston Globe on state-settlement aftermath.  Meanwhile, a report from the National Conference of State Legislatures confirms what is already well known, namely that states are spending only a small fraction of their $246-billion tobacco windfall on programs to hector smokers into quitting, propagandize youngsters against the habit, and vilify tobacco-company execs in mass-media ads.  The Boston Globe's coverage strings together many quotes from anti-tobacco activists flaying the settlement as not tough enough, but seems unable to find anyone willing to blast the settlement from the other direction, as an extortive deal premised on bad law, nor anyone who will point out the cozy nature of the alliance between many AGs and trial lawyers with whose firms they often had personal and campaign-finance links.  The story also misses the reason why tobacco companies have found it so easy to recover the settlement's costs in higher prices, namely the settlement's provisions cartelizing the industry and hobbling new entrants (see July 29, 1999) -- but then, none of the groups quoted in the article (anti-tobacco activists, state governments, trial lawyers, tobacco companies themselves) have any interest in shining light in that particular dark corner.  Incredibly, even Mississippi AG Michael Moore and his good friend trial lawyer Dickie Scruggs, who led the whole crusade, now have the nerve to criticize the outcome as "perverse", ineffective and so on.  Is Scruggs saying he was outnegotiated or that he didn't get his clients that great a deal, and if so is he going to give back some of his estimated billion in fees?  (Thomas Farragher, "Little of $246b deal fights tobacco", Boston Globe, Aug. 9).  The same paper reports on the ugly feud over what Massachusetts owes to the law firm Brown Rudnick, which represented the state in the settlement and now says $178 million in fees aren't enough.  "'If you divide what we're getting, which is $178 million over 25 years, and then divide that by [about 50] partners, you'll see that it's certainly significant. But on an annual basis, it's not something that anybody can retire on,' said M. Frederick Pritzker, chairman of Brown Rudnick's litigation department."  (Thomas Farragher, "State, lawyers fight over settlement fees", Boston Globe, Aug. 10).  Daynard-cite dishonor roll: both the Globe's Aug. 9 entry and the L.A. Times's Aug. 10 (see above) quote Northeastern U.'s Richard Daynard on tobacco suits without mentioning his interest as a contingent-fee claimant to state settlement booty (the Globe's Aug. 10 article does mention this in passing, however). 


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