|ARCHIVE -- JAN. 2001 (II)
January 19-21 --
"Wacky warning label" winners. First place in the
fourth annual Wacky Warning
Label contest sponsored by Michigan Lawsuit Abuse Watch went to "a
label on a pair of shin guards for bicyclists: "Shin pads cannot protect
any part of the body they do not cover." Second place? a "label on
a toilet at a public sports facility in Ann Arbor, Michigan warning 'Recycled
flush water unsafe for drinking' ... Honorable mention went to a Texan
who found a label on an electric wood router made for carpenters which
cautions: 'This product not intended for use as a dental drill.'" (Jan.
17; M-LAW site; Andrea Cecil, "Wacky
warnings", FoxNews.com, Jan. 17).
January 19-21 --
Come to America and sue. Lawyers representing survivors
of German victims of last summer's Concorde
crash near Paris airport have now sued Air France, Continental Airlines
and several other defendants. And where have they filed their suit?
Why, in the United States, naturally -- which is thousands of miles from
the crash site, but where we hand out much bigger tort awards than they
do in France. ("Victims' families file suit in Concorde crash",
9; see Sept. 29).
January 19-21 --
Turn off those registers. The Lemelson Foundation,
famously hyperactive in patent assertion
(see Aug. 28, 1999), has sued 135
national retail chains claiming that its patents have been infringed by
their use of bar-code scanning technology. Representing defendants,
Kenneth Chiate of Pillsbury, Madison & Sutro says that if the foundation
prevails it could get a court to issue an injunction against using the
familiar check-out method: "They could put a stop to the whole retail industry
in this country... it could be devastating." (Kirsten Andelman, "Pillsbury
Wins Beauty Contest", The Recorder (San Francisco), Nov.
January 18 -- Annals
of zero tolerance: gun-shaped medallion. "School
officials have suspended a third-grade student under the state's zero-tolerance
law after he brought a 1 1/2-inch-long gun-shaped medallion to class.
The boy apparently found the piece of jewelry in a snowbank and brought
it to Owen Elementary School on Wednesday, school officials said.
'State law takes precedence and requires us to take action even though
it was a toy,' said Donna Poag, director of elementary education for the
Pontiac [Mich.] School District." ("Third-grader suspended for gun-shaped
medallion in school", AP/CNN, Jan. 13).
January 18 -- "Bogus"
assault on Norton. Opponents of Interior Secretary-designate
Gale Norton (Jan. 15, Jan.
5) have absurdly sought to depict her as pro-Confederacy based on a
speech she gave to the Independence Institute. But as Mickey
Kaus points out at Kausfiles.com:
"The more inflammatory charges against Norton based on this speech appear
to be almost totally bogus .... Norton's opponents ask 'Who is "we" in
the phrase "we lost too much"'? But 'we' clearly means 'we Americans who
should believe in states' rights,' not 'we Americans who believe in the
Confederate cause.' ...You might not find her speech convincing, but only
a willful misreading turns it into any sort of secret embrace of the Confederate
cause." (left column, dated Jan.
Meanwhile, the Sierra Club, in what may be another sign of an emerging
working relationship between the more extreme environmental
groups and activist trial lawyers (see Dec.
7), has made it an explicit part of its case against Norton's confirmation
that while a lawyer in private practice she "worked to dissuade state attorneys
general" from turning paint
companies (one of which she was representing) into the "next tobacco".
Other public figures who get in the way of this kind of retroactive expropriation
through litigation should be duly warned: they, too, may turn up on the
Sierra Club's hit list ("NH Sierra Club opposes Norton confirmation", AP/FindLaw,
17). (DURABLE LINK)
January 18 -- What
they did for lead-plaintiff status? A brief filed
by New York's Sullivan & Cromwell last fall alleged that class-action
powerhouse Milberg Weiss Bershad
Hynes & Lerach engaged in some fancy footwork in an attempt to
gain the lucrative lead counsel position in a huge securities class action
against Sullivan's client, Oxford Health Plans Inc. "According to
the brief, Milberg Weiss clients filed 'misleading' affidavits to 'create
the appearance that they had suffered substantial losses' from trading
in Oxford stock. In fact, one of Milberg's two clients reaped a huge profit
from his trading, while the other suffered much smaller losses than others
vying to become 'lead plaintiff' and seize control of the litigation under
the Private Securities Litigation Reform Act of 1995, the brief alleges.
... Milberg Weiss' response ... contends that Sullivan & Cromwell 'distorted
the facts and ignored the law, all the while peppering their papers with
outrageous and unfounded allegations.'" (Karen Donovan, "A Case of
Ill-fitting Oxfords?", National Law Journal, Oct. 3). More
on the case: Peter Elkind, "The King of Pain Is Courting New Trouble",
Fortune, Oct. 2; Cameron Stracher, "Attorneys' Fee-for-All", New
York, Oct. 23 ("S&C is just mad," claims one lawyer, "because Milberg
partners make more money than they do."); Scott Gottlieb, "Presidency or
Health Care Giant, There's a Lawsuit in There Somewhere", WebMD, Nov. 17.
Update: a federal judge rejected the charges; see
January 17 -- "Coming
soon to a school near you". In Washington's alt-weekly
12-18), "Loose Lips" columnist Jonetta Rose Barras reprints the following
letter, which "leaves even [her] speechless":
District of Columbia Public Schools
Office of the General Counsel
Labor Management and Employee Relations
November 16, 2000
Dear Ms. [name withheld]:
On June 23, 2000, you were informed by letter that you would not receive
an offer of employment with the District
of Columbia Public Schools (DCPS)
based on the results of your criminal background check. Based on your subsequent
presentation of documentation that your 1984 charge for Uniformed Controlled
Substance Act, Cannabis was no papered; that your 1984 charge for shoplifting
was nolle prosequi; that your 1984 charge for assault with a dangerous
weapon, razor was no papered; that your 1984 charge for destruction of
government property was nolle prosequi; that your 1986 charge for assault
with a deadly weapon was dismissed; that your 1987 charge for soliciting
for prostitution was nolle prosequi; that your 1989 charge for assault
with a dangerous weapon, razor was no papered; and that your 1992 Uniform
Controlled Substance Act, possession with intent to distribute cocaine
was dismissed. You are eligible for employment with DCPS.
If you have any questions or concerns, kindly contact Labor Management
and Employee Relations at (202) 442-5373.
Acting Director of Human Resources
cc: Alfred Winder
Employee Services and Staffing
Office of the General Counsel
Labor Management and Employee Relations
Division of Security
Official Personnel File
January 17 -- ABA's
toothless ethics proposals. The American Bar Association's
"Ethics 2000" commission wants to revise lawyers' ethical
code, the Model Rules of Professional Conduct. But don't get
your hopes up: the panel shows little enthusiasm for requiring lawyers
to observe basic consumer protection precepts such as the disclosure to
clients of the billing methods they use or of the existence of alternatives
to contemplated legal work. Public comments must be submitted
before May. (David A. Giacalone, "Counselors Oughtta Counsel (Not
Conceal)", PrairieLaw, Dec.
January 16 -- "Holocaust
Reparations -- A Growing Scandal". Back in the September
issue of the American Jewish Committee's journal Commentary, senior
editor Gabriel Schoenfeld laid down a courageous challenge to the prevailing
view of the World War II reparations crusade, pointing out the difficulties
of resolving old title claims to bank accounts, insurance and real estate
even when the holders of financial trusts are acting in good faith; questioning
some reparations activists' insistence on portraying in the worst possible
light the actions during the war of such nations as the Netherlands and
Switzerland; and exploring the often far from constructive role played
by ambitious American lawyers and politicians. Now, in its January
issue, the magazine publishes a "Controversy" in which numerous readers,
including Deputy Secretary of the Treasury and key reparations negotiator
Stuart Eizenstat, react to Schoenfeld's article, and he responds to their
January 16 -- Batch
of reader mail. The latest additions
to our letters page discuss tax farming, things hospital staff do to
so as not to risk being sued, lawyers' monopoly on real estate transactions
(and the state of the courts generally), and where to buy hallucinogens
other than on eBay. Also, an attorney from Louisiana is really upset
with us for our coverage of his client's suit over racetrack payouts.
January 15 --
The Times vs. Gale Norton. "The New York
for reasons that must be assumed to be political, has attempted to smear
Gale Norton, President-elect George W. Bush's choice for secretary of Interior,"
writes Al Knight, columnist with the generally liberal Denver
Times reporter Timothy Egan sought to link Norton, who served as
Attorney General of the state of Colorado, with inadequate law enforcement
efforts in response to contamination from a gold mine in the town of Summitville,
which allegedly led to the "death" of the Alamosa river. Don't miss
Knight's devastating point-by-point correction of Egan's numerous misimpressions:
Knight concludes that "[a]ny mishandling of the [four-year-old] Summitville
litigation can be directly traced to the EPA and to the Justice Department."
(Timothy Egan, "The Death of a River Looms Over Choice for Interior Post",
New York Times,
7 (reg); "Summitville gold mine is cast as a political boogeyman",
Post, Jan. 10; "The blame for Summitville" (editorial), Jan.
11; via WSJ OpinionJournal.com).
National environmental groups'
jihad against Norton may have found a ready ear among some editors in cities
like New York where, to quote Fran Lebowitz, the outdoors consists of the
distance between one's apartment lobby and a taxicab. But it exasperates
many who actually worked with Norton in Colorado, to judge by a report
in Denver's other major paper, the Rocky Mountain News. "'There
was never one iota of reticence to pursue polluters on (Norton's) part,'
said Patrick Teegarden, policy director for the Colorado Department of
Public Health and Environment and himself a Democrat. 'She took her
role in enforcing our laws very, very seriously and did an excellent job
on behalf of this agency.'" On the much-misrepresented "self-audit"
issue (see July 19, 1999 and link
to Schulte, Roth and Zabel
article there), Norton's position was backed by Democratic Gov. Roy
Romer and by the state legislature. (Todd Hartman, "Ex-cohorts deny
Norton was patsy for polluters", Rocky Mountain News, Jan.
14). Some trial lawyers, meanwhile, have it in for Norton because
as a private attorney she counseled a major paint manufacturer on how to
resist the courtroom assault aimed at turning the decades-ago sale of lead
paint into the next tobacco (Douglas Jehl, "Environmental Groups Join
in Opposing Choice for Interior Secretary", New York Times, Jan.
A Jan. 13 Times report, meanwhile, darkly announces that Norton
"has repeatedly challenged some of the laws that she would be obligated
to enforce." As one example, it offers the famous case of Adarand
Contractors v. Pena, in which Norton as AG declined to represent
the state against a suit that "challenged Colorado's support of a law setting
aside some highway contracts for businesses headed by members of minority
racial groups, a provision that Ms. Norton has opposed as unfair."
But Times reporter Douglas Jehl fails to note that higher courts,
including the U.S. Supreme Court, proceeded to rule in Adarand's favor,
confirming Norton's view. Writes Ira Stoll of the invaluable
daily Times-watchdog newsletter, SmarterTimes:
"It's just flat-out false for the New York Times to report this
Adarand matter as proof that Ms. Norton 'has repeatedly challenged some
of the laws that she would be obligated to enforce.' She'd be under no
obligation to enforce those racial set-aside laws as secretary of the interior
-- they are illegal and unconstitutional, as federal courts have repeatedly
ruled. She was right to have challenged them." And Stoll observes
that the Denver Post's Al Knight "noted in a column that in opposing
some of the state's affirmative action policies in 1995, Ms. Norton was
'doing precisely what the law requires her to do, make sure that the state
is behaving in a lawful manner with minimal exposure to discrimination
lawsuits.'" (Douglas Jehl, "Norton Record Often at Odds With Laws She Would
Enforce", New York Times, Jan.
13 (reg); SmarterTimes, Jan.
a letter to the Times). (DURABLE
January 15 -- "Killer's
suit alleges job discrimination". Committed to state
psychiatric care since the 1978 killing of his wife and stabbing of his
daughter and grandmother, Richard L. Greist is now suing the hospital where
he's a resident for allegedly discriminating against him by refusing to
hire him for a job as clerk. His suit charges that Norristown State
Hospital and the Pennsylvania Department of Public Welfare violated the
with Disabilities Act as well as the Constitution's Equal Protection
Clause. "Greist has been found to have paranoid schizophrenia and
mixed-personality disorder." He is being represented by attorney
Neil O'Leary. (Kristin E. Holmes, "Killer's suit alleges job discrimination",
Jan. 4) (more on killers' rights: Jan.
7, 2000, Sept. 24, 1999).
January 12-14 --
Hunter sues store over camouflage mask. Gregory
Abshier, 42, of Kent City, Michigan, was paralyzed three years ago when
he fell out of a tree stand used for bow hunting. He's now suing
retailer Meijer Inc. for selling him the camouflage mask he was using at
the time, claiming he was overcome by fumes
from its dyes. He's being represented by the Southfield law firm
of well-known litigator Geoffrey Fieger. Also named in the
suit is Hunter's Specialties Inc., of Cedar Rapids, Iowa, makers
of the mask. (Doug Guthrie, "Paralyzed hunter sues Meijer over camouflage
mask", Grand Rapids Press, Dec. 26).
January 12-14 --
The Kessler agenda. Critics used to say former food
and drug chief David Kessler had a more extreme antilibertarian agenda
on tobacco than he let on at the time, and you know what? They were
right. He's now out with a new book (A Question of Intent)
arguing that the government should prohibit the sale of cigarettes to persons
not already confirmed smokers (after all, wasn't alcohol prohibition a
roaring success?) and that it should establish a nonprofit monopoly enterprise
to sell the things. (Duncan Campbell, "US call to ban cigarette sales",
January 11 -- By
reader acclaim. Among recent stories submitted by
* Latest McDonald's coffee lawsuit: Teresa Reed of Murphysboro,
Ill. says her ankle was burned on New Year's Eve 1998 when the hot
beverage spilled out of a cup holder in her mother's car.
She's suing the local McDonald's operator, along with Wal-Mart for selling
the cup holder, another company for making
it, and -- best detail -- her mom, asking $450,000. What, no
suit against the automaker? (Karen Binder, "McDonald's Being Sued;
Couple Allege Coffee Was Served Too Hot", Southern Illinoisan, Jan.
8; "McDonald's Sued Over Spilled Coffee", AP/Washington Post,
9) (more on hot beverage suits: Aug.
10 and list at end).
* In Vancouver, B.C., a
"man who became a slave to crack cocaine is suing
his alleged dealers, claiming they 'owed a duty of care' to their customers
and should have known their activities could cause harm. " (Greg
Joyce, "Cocaine-addicted man files court claim, suing alleged dealers for
damages", CP/Ottawa Citizen, Jan. 3; "Crack addict sues dealers
for lack of care", Ananova.com, Jan.
* As expected, Baltimore lawyer-Orioles owner Peter Angelos (asbestos,
lead paint) has sued companies connected
with the cellular phone industry charging that radiation from the devices
causes cancer, despite a further ebbing of the always-tenuous scientific
backing for that proposition (National Cancer Institute, "No Association
Found Between Cellular Phone Use and Risk of Brain Tumors", press release,
21; Steven Milloy, "Junk science: Studies steal cell phone lawyer's
Christmas", FoxNews.com, Dec. 22; Chris Ayres, "Vodafone sued over brain
cancer", The Times (London), Dec.
28; "Cancer scare hits cell firms", CNNfn, Dec.
28; Richard Baum, "Mobile phone firms face fresh suits over tumours",
Reuters/ FindLaw, Dec. 28). Update Oct.
1-2, 2002: court dismisses case.
January 11 -- In
the gall department. Napster Inc., the company that
made a huge success by encouraging its users to take a casual approach
toward other people's intellectual
property, went to court last month to file a trademark-infringement
suit. It's suing a souvenir apparel-maker for allegedly selling T-shirts
and other items bearing its well-known logo without its consent.
(Benny Evangelista, "Napster Sues Firm for Trademark Violations", San Francisco