ARCHIVE -- AUGUST 2001
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.
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)
trademark - delete"), RidersForJustice.com
("links of interest to bikers"/"Freedom Fighter" section), Daily Frank
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.
* "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,
* 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.
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,
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
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
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,
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,
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,
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,
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,
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.
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.
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
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.
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
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
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).