ARCHIVE -- MARCH 2002
March 8-10 -- Will
EU silence the pipes? Some Scottish members of the European
parliament are warning that new noise regulations could make it unlawful
to play their nation's musical instrument: lowering maximum noise levels
to 87 decibels, as is being proposed, could "silence the bagpipes for the
first time since Culloden". "If this goes through then the Queen
will have to be without her piper every morning who wakes her up at Buckingham
Palace," said Jim Banks, the head of the Piping Centre in Glasgow. "It
is just daft." An EU spokeswoman denied that the authorities in Brussels
wished to suppress bagpipes, but a Tory MEP said the application of the
rules to employment contexts could
result in the end of professional pipe bands. Two years ago the British
defense ministry announced that the din of military brass bands was in
violation of job-safety noise limits (see Dec.
22, 2000) (Hamish Macdonell, "EU threat to noisy bagpipes", The
6)(more on bagpipers in trouble: June
March 8-10 -- Inability
to get along with co-workers. An assembly worker
with bipolar disorder "fired in 1996 following a series of conflicts with
her fellow employees and what court papers termed 'her confrontational
and irrational behavior' with her supervisor" is entitled to sue her employer
under the Americans with Disabilities
Act since the ability to interact or get along with others is "a major
life activity", a federal judge ruled in New York. The employer had
responded to the woman's lawsuit with a counterclaim against her, charging
that her erratic and hostile behavior had cost it $500,000 in losses to
its operations, but Judge Frederic Block suggested that its counterclaim
was "in terrorem tactics" and "a naked form of retaliation"
against "a vulnerable plaintiff who suffers from a significant mental impairment,
for filing her lawsuit," and suggested that he might impose sanctions on
the company for so foolishly imagining that the accusation game might work
in both directions. (Mark Hamblett, "Plaintiff With Bipolar Disorder
Protected Under ADA", New York Law Journal, March
March 8-10 -- Near
and dear to their hearts. Florida trial lawyers are up
in arms over the merest suggestion, from a committee on jury innovations,
that it might be time to start rethinking their
cherished right to kick prospective jurors off panels without offering
reasons or explanations. Thomas Scarritt, chair of the Florida bar's
trial lawyers section, "called any discussion of eliminating peremptory
challenges 'a dangerous move.' Scarritt told the [state supreme]
court 'that is a subject that is near and dear to the hearts of trial lawyers
and we do not think there should be any change whatsoever.'" (Susan R.
Miller, "Juror Power?", Miami Daily Business Review, Feb.
March 8-10 -- Crestfallen
at the news. "Obviously, we're disappointed." --
Len Selfon, director of benefits programs for the Vietnam Veterans of America,
on word that the Institute of Medicine had found no evidence that the herbicide
Agent Orange, to which many veterans were exposed, has contributed to the
risk of a form of leukemia in children ("Washington in Brief: Science Panel
Retreats On Agent Orange Risks", Washington Post, Feb.
28) (via Health Facts and Fears (American Council on Science
and Health), March
March 6-7 -- Updates.
Stories that kept on developing:
* "A judge dismissed a lawsuit Monday that claimed several video
game and movie makers shared blame for the 1999 Columbine High School
massacre. ... [Federal judge Lewis] Babcock said there was no way the makers
of violent games and movies could have reasonably foreseen that their products
would cause the Columbine shooting or any other violent acts. 'Setting
aside any personal distaste, as I must, it is manifest that there is social
utility in expressive and imaginative forms of entertainment, even if they
contain violence,' Babcock wrote." ("Columbine Family's Lawsuit Against
Video Game Makers Dismissed", AP/Tampa Bay Online, Mar.
5)(see April 24, 2001).
* A Southwest Texas University student who bared her breasts at
a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million
default judgment against the makers of a Wild Party Girls video who used
the resulting topless picture of her in their promotions. She continues
to pursue a lawsuit against the E! cable network for airing the "Too Hot
for TV" ads with her image. ("Woman in 'too hot for TV' suit gets
$5 million", Cox/AZCentral, Feb. 27) (Update Apr.
15: default judgment thrown out). And the quest for a very private
Mardi Gras continues as a Florida State University business major "has
sued producers of the 'Girls Gone Wild' videos, claiming they invaded her
privacy and used her image without permission. ... [She] admits in her
lawsuit that she was among the women on the streets and balconies of the
French Quarter last year who removed their tops in exchange for Mardi Gras
beads and trinkets." (Janet McConnaughey, "Coed files suit over nude video",
AP/Polk County Online, Jan.
23)(see Sept. 28, 2001).
At Metafilter, user "Mikewas" has some advice
(Oct. 1) for how a defense lawyer might try such cases after first
determining whether the local jury is of liberal or conservative leaning.
* " In what is being described as a major victory for the so-called
'visitability' movement, two cities in disparate parts of the country [last
month] started requiring all new homes to be accessible to the handicapped."
Besides the expected passage of such an ordinance in Naperville, Ill. (see
6), a new ordinance in Pima County, Arizona "includes the significant
additional requirement of a zero-step entrance." "I thought homes
were for the owners," says University of Chicago law professor Richard
Epstein. A suburban Chicago homebuilder says the added expense could
run as high as $3,000 a house: "it's real easy to spend somebody else's
money," adds J. Mark Harrison, executive director of the Home Builders
Association of Illinois. ("Activists Win New Rules Requiring Handicapped-Accessible
Private Homes", FoxNews.com,
March 6-7 -- Quest
for deep pockets in Ga. crematory scandal. "But while
relatives focus their anger on the Marshes, their lawyers have deeper pockets
in mind -- the funeral homes that sent bodies to Tri-State. The reason
is simple: Funeral homes have more insurance. Lawyers know the Marshes'
assets are likely to be eaten up in criminal court defending Ray Brent
Marsh, the man charged with theft by deception in the Tri-State case.
That leaves the funeral homes, who carry multimillion-dollar liability
policies." (Duane D. Stanford, "Big bucks at stake as lawsuits hit
funeral homes that sent bodies to Tri-State Crematory", Atlanta Journal-Constitution,
March 6-7 -- Washington
eyes your 401(k). At Reason Online, Mike Lynch
explains why the Enron collapse doesn't prove what members of Congress
keep saying it does about the supposed laxity of pension regulation ("Political
(see Feb. 15).
March 6-7 -- Dewey
deserve that much? Dig deeper into your pockets, smokers:
federal judge Jack Weinstein of the Eastern District of New York "has awarded
nearly $38 million in legal fees to New York-based Dewey Ballantine for
representing Blue Cross and Blue Shield in a suit against the tobacco
industry -- more than twice the amount of a jury verdict in the case last
year." (Tom Perrotta, "Dewey Ballantine Given $38 Million Fee Award",
York Law Journal, Mar.
1). (Update Oct.
23, 2004: New York high court derails award and underlying case.) And
Loyola University law professor Dane Ciolino has dropped his challenge
of the $575 million in legal fees private lawyers got for representing
the state of Louisiana in the national tobacco settlement. Terms
were confidential; Ciolino said he is not receiving personal benefit from
the deal. "When they signed on to represent the state, the lawyers
from 13 different firms became Louisiana assistant attorneys general.
The lawyers claimed they acted as independent contractors, not government
employees." (Marsha Shuler, "Tobacco fee challenge dropped", Baton Rouge
March 5 -- Scenes
from a malpractice crisis. "In Las Vegas, more than 10%
of the doctors are expected by summer to quit or relocate, plunging the
city toward crisis. ... In California -- where juries hearing malpractice
lawsuits are limited to maximum awards of $250,000 for pain and suffering
-- [ob/gyn Dr. Cheryl] Edwards' insurance premium this year is $17,000
[it had been $150,000 when she practiced in Nevada]. Because of 1975
tort reform, doctors in California are largely unaffected by increasing
insurance rates. But the situation is dire in states such as Nevada where
there is no monetary cap."
"Doctors in Oregon have been told to brace for 'breathtaking' increases
in malpractice insurance premiums in coming weeks. ... When the Oregon
Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain-
and- suffering awards in malpractice cases, jury awards of $8 million,
$10 million and $17 million swiftly followed. ... The Arizona border
town of Bisbee has lost its hospital maternity ward because four of the
town's six obstetricians can no longer afford to practice. ... Both trauma
centers in Wheeling, W.Va., have closed because their neurosurgeons couldn't
pay their new malpractice premiums. The trauma center at Abington
Memorial Hospital outside Philadelphia faces closure next month as its
doctors scramble to find affordable insurance." (Tom Gorman, "Physicians
Fold Under Malpractice Fee Burden", Los Angeles Times, Mar.
4; also (same story) Boston
Joelle Babula, "Malpractice Crisis: Trauma unit faces cuts", Las Vegas
7). In Mississippi, where trial lawyers hold great sway in many
courts and recently blocked tort reform in the state legislature, an 18-doctor
group of emergency physicians in Hattiesburg two years ago "paid $140,000
for malpractice insurance. Last year, the premium went to $250,000. The
next annual premium would be $437,500 or $475,000..." ("Cost to cover errors
in ER to rise for doctors", Hattiesburg American, Jan.
26). See also Geekemglory blog, Dec.
13. (DURABLE LINK)
March 5 -- Case
for declaring wars, cont'd. "The framers had good reason
to separate the dangerous power to declare (and finance) war from the power
to command the armed forces." Unfortunately, Congress nowadays tends
to abdicate its responsibility by delegating to the White House discretion
on whether to institute hostilities. (Sheldon Richman, "Anything
to declare?", Foundation for Economic Education, Feb.
16) (see Sept. 13, 2001) (via
March 5 -- "Man
awarded $60,000 for falling over barrier". Australia:
"A surfer who fell and injured his back when he stepped over a guard rail
to urinate has been awarded more than [A]$60,000 in compensation.
Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the
Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier
to relieve himself in what he thought was ground level bush." (The
Age (Melbourne), Mar.
4). Update Mar. 8-9, 2003:
March 4 -- 9/11:
grab for the gems. Lawyers have sued large Manhattan jewel
dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other
defendants, seeking to attach proceeds from the sale of the popular gemstone
tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals
with links to Al-Qaeda are widely believed to have engaged in trading in
the gem, which is extensively smuggled out of Tanzania, the East African
country where it is mined. "Yesterday, representatives of STS and
the Tanzanian Mineral Dealers Association vehemently denied any connection
between their industry and al Qaeda. 'My sympathies to the victims,
but this is ridiculous,' said STS owner Sunil Agrawal." Among lawyers involved
in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense
lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, "Tanzanite
Dealers Named in Suit Brought by the Families of Victims", Wall Street
15 (online subscribers only)). See also Ralph R. Reiland, "Lawyers
Lust for 9-11 Gold" (The American Enterprise, Feb.
18). And a great Stuart Taylor, Jr. column from January that
we somehow missed back then: "How 9/11 Shines a Spotlight on Litigation
Lottery", (National Journal/The Atlantic, Jan.
March 4 -- No reply.
Lawyers from Jacoby & Meyers have filed a class action suit against
online payments firm PayPal alleging all manner of atrocities in its customer
service. "PayPal's spokesman said he could not comment on the suit
because his company is in the midst of a [legally mandated] post-IPO [initial
public offering] quiet period." You get to accuse them, and they
can't answer back -- isn't it fun being a lawyer? (Cheryl Meyer,
"Class Action Filed Against PayPal", The Deal, Feb.
March 4 -- A menace
in principle. Under a law that took effect in New Hampshire
last year, police are required to arrest and hold until arraignment anyone
accused of violating a domestic
protective order. So when a woman in the town of Farmington charged
her estranged husband with placing harassing phone calls, they had to haul
him in, even after a visit to his house revealed that he is blind, uses
a wheelchair, and is on dialysis, leaving him not much of a credible threat
to anybody. "Police had to wait three hours for an ambulance to bring
[him] to the jail, but the jail wouldn't hold him because of potential
liability." ("State domestic violence law puts police in bind", AP/Manchester
March 1-3 -- Should
have arrested him faster. "A convicted sex offender wanted
in Florida who fled into the Maine woods from police is complaining that
he got frostbite and lost a few toes because he wasn't
arrested fast enough. Harvey Taylor, 48, who spent at least three
nights in the woods in Mattawamkeag after running from a Penobscot County
Sheriff's detective a few weeks ago, is threatening to sue the detective
for not arresting him promptly." (Mary Anne Lagasse, Flight from
law leads to frostbite, threat of lawsuit", Bangor Daily News, Feb.
March 1-3 -- Too
much Nintendo. "A Louisiana woman is suing Nintendo, alleging
her 30-year-old son suffered seizures after playing video games for eight
hours a day, six days a week." (AP/Minneapolis Star Tribune,
24; Brett Barrouquere, "Woman sues Nintendo in death of her son, 30", Baton
Rouge Advocate, Feb. 23).
March 1-3 -- Batch
of reader letters. We've fallen far behind both on posting
reader letters and in answering our mail (and unfortunately we can't answer
all of it). Still, we've managed to put up a batch
of letters from the closing weeks of last year. Topics include
safe deposit boxes at the WTC, a federal judge's decision striking down
high school sports schedules that put boys' and girls' sports in different
seasons, and discrimination against motorcyclists.
March 1-3 -- Entitled
to jobs that kill? On Wednesday the Supreme Court
heard argument on the case of Echabazal vs. Chevron, which
poses the question: "Does the Americans
with Disabilities Act force employers to hire disabled workers for
a job, even when the position could cause injury or death to the worker?"
The Bush administration and business groups are trying to advance what
turns out to be the controversial proposition that "employers have an interest
in keeping their employees from being hurt or killed." (Michael Kirkland,
"Are disabled entitled to jobs that kill?", UPI, Feb.
27; Warren Richey, "Can a disabled worker put himself at risk?", Christian
Science Monitor, Feb.
27; Marcia Coyle, "Rejecting a Worker", National Law Journal,
Nov. 5, 2001). Update:
Court unanimously rules for defense (see Jun.
March 1-3 -- Launder
mania. Rushed through Congress in the weeks after Sept.
11, the USA Patriot Act "requires every financial institution -- not just
traditional banks -- to monitor and to report suspicious customers to federal
officials." The paperwork and compliance burdens will be enormous,
but there is little assurance that the program will make much difference
in preventing terrorism, which tends to be accomplished on relatively small
budgets. (Krysten Crawford, "On the Home Front", Corporate Counsel,
22) (see Nov. 29, 2001).
March 1-3 -- Welcome
Boortz.com listeners. Popular Atlanta-based broadcaster
Boortz calls this site "one of my frequent stops" in researching his
show (Feb. 27).
He sure does have a lot of listeners -- our traffic on Wednesday, when
he did a segment paying us this tribute and endorsing loser-pays,
was among the best ever.
Another noteworthy bit from his commentary: "Day after day people file
lawsuits just to 'see if we can get the other side to pay something.'
I've been there, folks. I've seen it. I was a member of the
Georgia Trial Lawyers Association and the American Association of Trial
Lawyers. I went to the conventions. I sat in the meetings.
I participated in those discussions where lawyers would say 'I know we
don't have a case --- but maybe they would rather fork over a hundred thousand
or so rather than taking the chance of going to trial. Hell, their
expenses alone would be more than we're asking!'".