ARCHIVE -- NOVEMBER 2002
November 8-10 --
By reader acclaim: "Father files suit after son fails to win MVP award".
"A Canadian father is suing the
New Brunswick Amateur Hockey Association after his 16-year-old son failed
to win the league's most
valuable player award. Michael Croteau is seeking about $200,000
in psychological and punitive damages from the association. He also demands
that the MVP trophy be taken from the winner and given to his son, Steven."
("Father sues team for not naming son MVP", AP/ESPN, Nov.
7; Shawna Richer, "Father files suit after son fails to win MVP award",
and Mail, Nov.
7). (DURABLE LINK)
November 8-10 --
Welcome Weekly Standard readers. The magazine's
"Scrapbook" feature generously refers to us as "One of [its] favorite sites"
("The Scrapbook: DeWayne Wickham, Wellstone, and more", Nov.
11)(requires print sub + reg) in the course of hailing a Miami federal
judge's recent ruling that the Americans with Disabilities Act does not
require website operators to redesign their offerings for the convenience
of blind customers (see Oct. 22).
November 8-10 --
Asbestos opinions. The Supreme Court has just heard oral
argument on Norfolk & Western Railway Co. v. Ayers, a
case raising the question whether railroad workers who have not in fact
developed cancer from exposure to asbestos
can nonetheless sue under federal law for fear of same (Dahlia Lithwick,
"Supreme Torts: How to get paid a million dollars for your phobias.", Slate,
6; Marcia Coyle, "Litigating Over the Fear of Cancer", National
Law Journal, Oct.
30). The recent massive combined asbestos suit in West Virginia
has served to expose the rift between plaintiffs' counsel whose clients
are seriously sick, and those whose strategy leads them to recruit other
kinds of clients (Lisa Stansky, "Unusual Clash in Asbestos Case", National
Law Journal, Oct.
31). In the latest of several scorching columns he has written
on the controversy, Stuart Taylor, Jr., charges that "lawyer-plutocrats
continue to obscenely enrich themselves by using massive asbestos lawsuits
and a disgracefully dysfunctional litigation system to extort billions
of dollars from American consumers every year. The lawyers blackmail mostly
blameless companies, while cheating the real victims of asbestos.
This scandal in turn dramatizes how our lawsuit industry often operates
as an engine of injustice -- and as a drain on the economy, an inadequate
vehicle for compensating people actually harmed by corporate wrongdoing,
and a transparent fraud in its pretensions to punish those responsible
for such wrongdoing." ("Greedy Lawyers Cheat Real Asbestos Victims",
Journal/The Atlantic, Oct.
1). See also James A. Lacey, "Asbestos Suits: Worse Than Enron",
9. (DURABLE LINK)
November 8-10 --
Munched zoo animals, gets six months severance. "A German
zookeeper, fired last month for eating animals in a town zoo, has been
awarded six-months severance pay after reaching a settlement in a labour
court. The town of Recklinghausen, north of Cologne, fired the zookeeper
after he was caught barbecuing five Tibetan mountain chickens and two Cameroonian
sheep at the zoo, popular with children who were allowed to stroke the
animals. ... Germany's laws make it extremely
difficult for employers to fire workers." ("Animal feast zookeeper
win pay claim", Yahoo/UK Reuters, Nov.
7) (DURABLE LINK)
November 8-10 --
"Lawyers Fight Over Louima Case Fees". Continuing the
tawdry saga last aired in this space July
24, 2001: "The Abner Louima police brutality case resurfaced in federal
court Wednesday, as attorneys disputed the distribution of nearly $3 million
in attorney fees amid accusations of slipshod lawyering, client poaching
and greed. Johnnie L. Cochran, Peter Neufeld and Barry S. Scheck
have filed a motion to prevent Louima's first two lawyers -- Carl W. Thomas
and Brian Figeroux -- from receiving any portion of the fees associated
with the record $8.75 million settlement Louima received from New York
City." (Tom Perrotta, New York Law Journal, Oct.
18; "Louima's first team of lesser-known attorneys seek share of $3
million", AP/CNN, Oct.
18). "According to Scheck's testimony, the relationship between
the two groups of lawyers was tense from the very beginning, with members
of both teams launching racial slurs." ("Lawyers Fight Over Fees
From Louima Settlement", (WNBC-TV, Oct.
17). (DURABLE LINK)
November 7 -- Some
election results. The Senate results, as will be surmised,
were a spectacular rout for organized trial lawyer interests, which had
spent heavily to defend Democratic control of the upper chamber.
(Another key litigation lobby ally, Sen. Dick Durbin (D-Ill.) (Jul.
7, 2000) did not face serious challenge and won easy re-election.)
Of the three extremely wealthy trial attorneys who ran for U.S. House seats
in West Virginia and Florida (Oct. 11-13),
all lost by margins of 60-40 or worse (Humphreys,
And all of the nationally publicized state supreme court races seem to
have been resolved in a manner favorable to litigation reformers.
Mississippi Supreme Court Justice Chuck McRae, widely viewed as symbolizing
his court's runaway-litigation faction (Sept.
9-10), lost badly, actually coming in third in a three-way race with
23 percent of the vote. (Antoinette Konz, "Dickinson takes high court
position", Hattiesburg American,
6). Despite a nasty ad campaign against them (Nov.
1-3), Maureen O'Connor and Evelyn Stratton won convincing victories
for seats on the Ohio high court, whose balance of power may shift as a
result. Judges Robert Young (Michigan) and Harold See (Alabama),
who have drawn trial lawyer fire in the past, were both re-elected, albeit
narrowly in See's case.
races, on the other hand, there was little to cheer about, with trial-lawyer-backed
candidates pulling out mostly narrow victories in Michigan, Oregon and
Tennessee. We never expect much good news to come out of attorney
general races, and were unsurprised to see New York's Eliot Spitzer and
Connecticut's Richard Blumenthal glide to re-election; we're also expecting
the worst from Illinois's incoming Lisa Madigan (Jan.
7). But we note GOP takeovers of the AG's office in Michigan
and Florida, as well as retention of the crucial Texas post. (full
list at NAAG site)
A footnote: one of the engineers of the great 1998 tobacco heist, Florida
Attorney General Bob Butterworth, was term-limited and deigned to run instead
for a state senate seat in Broward/Palm Beach, but lost to the Republican
candidate (WSVN-TV, Nov.
6). This continues the series of political pratfalls by which
key players in the tobacco affair -- the list includes former attorneys
general Hubert Humphrey III of Minnesota, Dan Morales of Texas and Scott
Harshbarger of Massachusetts, and Minnesota private attorney Michael Ciresi
-- have come up short when they tried to run for other offices. (DURABLE
November 7 -- Scourge
of the Super-Size order. The hullabaloo over suing fast-food
chains has been great publicity for Washington-based law prof John Banzhaf,
who finds himself the subject of a profile in the Washington Post
(Libby Copeland, "Snack Attack", Nov.
3), not to mention all the publicity furthered by his own
website and its obesity links.
Less respectful views are offered by syndicated columnist Doug Bandow ("Lawyers
run amok", TownHall, Nov.
5) and Southern restauranteur Robert St. John ("In state's legal climate,
'I could sue, ... retire to Hawaii'", Hattiesburg American, Oct.
15). (DURABLE LINK)
November 6 -- Notation
on Scruggs' court file: to be "kept away from the press".
"Even as famed Pascagoula trial lawyer Dickie Scruggs testified in Hattiesburg
Tuesday in a lawsuit over legal fees from asbestos
litigation, records of the lawsuit were being withheld from the media
by Jackson County officials. The file for the case ... contains the
original complaint in the lawsuit between Scruggs' firm and Merkel &
Cocke, a Clarksdale law firm that also handled asbestos cases in the 1990s.
Scruggs believes that Merkel & Cocke owes him money for a case that
the firm and Scruggs worked on together. ... A handwritten note attached
to the court file in Jackson County, found by a Sun Herald reporter, said,
'This file is being kept away from the press/media, etc., but is not under
seal per Court Order...' The word 'not' was underlined twice for emphasis."
(Beth Musgrave and Karen Nelson, "Scruggs' case file being kept away from
media", Biloxi Sun-Herald, Oct.
30). The next day county officials relented and agreed to let
the newspaper see the file ("Court opens Scruggs file to newspaper", Oct.
31). The paper's editorialists call the withholding of the file
"brazen" and "no innocent mistake". ("Public records are not private
property of government officials" (editorial), Oct.
31). (DURABLE LINK)
November 6 -- Choirgirl
vs. cathedral. In Britain, a judge has dismissed the complaint
that 13-year-old choirgirl Pollyanna Molloy filed against the Dean and
Chapter of Lincoln Cathedral
(consecrated 1092) after she was passed over for a "cope", a senior chorister
position. Molloy says she was "utterly destroyed" to learn that a
less experienced girl had been chosen for the honor, and her lawsuit claims
damages for mental anguish. Molloy's parents say they plan to appeal
the judge's order. ("Judge throws out choirgirl's writ", Lincolnshire
30; Jonathan Petre, "Girl sues cathedral for choir honour 'snub'",
10). (DURABLE LINK)
November 6 -- "Google
sued over search ratings". "Top billing in Google search
results has become so coveted that one Web hosting company is suing for
it. Search King, an Oklahoma City-based Web site network and advertising
seller," claims in its federal complaint that the popular search service
"purposefully reduced Search King’s value, as well as that of Web sites
hosted by Search King," by downgrading its rankings. "According to
the complaint, the Web hosting company in August started the PR Ad Network
-- an advertising network in which it sold text links on the popular Web
sites to get them a better listing in Google’s results." Google has
recently been reported to have cracked down on "link farm" techniques by
which sites are artificially
induced to link to each other for purposes of boosting the beneficiaries'
search results. (Stefanie Olsen, ZDNet, Oct.
22). (DURABLE LINK)
November 4-5 --
Campaign roundup. As we prepare to vote:
* Election Day is just the start: "both major parties have recruited
unprecedented armies of lawyers -- at least 10,000 on the Democratic side
-- for possible recount battles but also to keep an eye on voting procedures.
...The campaign's tone also shows the indelible mark of the 2000 election.
The [Florida] recount battle signaled that lawyers can be as important
as voters in shaping the outcomes of tight races." Elections expert
Larry Sabato says we "may not know for sure who controls the House and
Senate until December or January." (Gail Russell Chaddock, "As vote
arrives, lawyers are ready", Christian Science Monitor, Nov.
4). More: John Fund, "Have You Registered to Sue?", OpinionJournal,
* Medical malpractice reform
has flared as an issue in races across the country. A very small
sampling: the Tennessee governor's race (Bill Poovey, "Hilleary says malpractice
suit awards need a limit", Knoxville News-Sentinel, Nov.
1); the Texas attorney general's race (Jim Belew, "Abbott touts solution
for healthcare", Conroe Courier, Oct.
31); the Oregon governor's race ("Governor hopefuls respond to readers",
Salem Statesman-Journal, Oct.
28 -- scroll to near end); the Ohio high court races ("Taft says a
GOP high court will fix malpractice problems", Toledo Blade, Oct.
31; the Maryland governor's race ("Maryland medical society turns against
Townsend", Baltimore Sun, Oct.
31); Pennsylvania's 13th District U.S. House race (John Anastasi, "Doctors
group backs tort reform supporters", PhillyBurbs.com, Nov.
3); the Florida governor's race (Mary Ellen Klas, "Candidates clash
on medical liability", Palm Beach Post, Oct.
16); and Mississippi state legislative races (Matthew Coleman, "Lawyers'
group targets Lincoln County senator", Brookhaven (Miss.) Daily Leader,
* In Connecticut, attorney Martha Dean has taken up the thankless task
of running against the Northeast's most successful political demagogue,
Attorney General Richard Blumenthal, and has been making a spirited job
of it (Edmund H. Mahony, "Attorney Takes On A General", Hartford Courant,
19; Ray Hackett, "GOP challenger: Blumenthal's high-profile cases waste
tax dollars", Norwich Bulletin, Oct.
28; "Dean says Blumenthal should stop Microsoft suit", AP/WSFB-TV,
3). In news coverage no longer online, Dean has assailed Blumenthal
for his continued denials that there was anything wrong with the way he
picked his former law partners for the fabulously lucrative job of representing
the state in the tobacco litigation (see Feb.
3 and Feb. 16, 2000).
* Of donations to federal candidates
this election cycle by California's 40 biggest law firms, which mostly
represent corporations and other large institutions, 62 percent of the
money has gone to Democrats, 35 percent to Republicans. (Jason Dearen,
"Big-Firm Backing", The Recorder, Oct.
29; "By the Numbers"). What, you thought it would be any different?
* In West Virginia's hotly contested House race, asbestos plaintiff's
lawyer James Humphreys, "who made $10 million from his successful law practice
last year, has spent $5.2 million of his own money in his quest to unseat
Republican Shelley Moore Capito. Two years ago, the Charleston Democrat
spent $6.1 million of his own cash in a narrow loss to Capito." Make
him spend it all, Shelley! (Karin Fischer, "Humphreys' top contributor
is himself", Charleston Daily Mail, Oct.
24; "Bush pre-election drive stops in W.Va.", Huntington Herald-Dispatch,
1; "Elections 2002: West Virginia House rematch", UPI, Oct.
More: A Washington Times editorial reminds us that trial
lawyers have staked many, many chips on Michigan AG and gubernatorial candidate
Jennifer Granholm; her GOP opponent, Lt. Gov. Dick Posthumus, "as the majority
leader of the state senate tenaciously pushed the 1995 tort reforms through
the legislature, and has been the personal-injury lawyers' Public Enemy
No. 1 ever since." ("Lawsuit abuse", Nov.
4; see Oct. 9). Those following Missouri
politics will want to check out retired judge Ralph Voss's website
calling for voters to reject several incumbent judges. And here's
of local webloggers who will be following key races across the country
(courtesy DailyPundit). (DURABLE
November 4-5 --
"Lawyers who sue to settle". L.A. Times profiles
local attorney Morse Mehrban, a major user of California's bounty-hunting
charter Proposition 65, whose
exploits include filing 400 separate claims against candle makers and more
than a dozen against fireplace log makers, claiming their products emit
toxic fumes when burned. "A group of Los Angeles-area hardware stores
paid Mehrban $27,500 last year to settle a lawsuit claiming that discarded
metal filings from key-duplicating machines posed a threat of lead contamination."
A Los Angeles judge who dismissed one of Mehrban's cases -- against a hotel
for failing to post signs warning that cigarette smoke in public areas
of the hotel was toxic -- "likened the lawsuit to 'racketeering.' ... Though
[Mehrban] bills his time at as much as $400 an hour and drives a Mercedes
roadster, he says he's not in it for the money."
"The plaintiff in many of Mehrban's suits is Consumer Cause Inc., which
describes itself as a statewide advocacy group. Its mailing address is
the Brentwood home of Mehrban's mother, Rafat Efraim, who for a time was
listed on state incorporation records as the group's only officer. According
to Mehrban, Consumer Cause now has five officers, including his mother
and fiancee. He declined to identify the other officers." In one case Mehrban
filed, "the manufacturer's lawyer called Mehrban's mother to the witness
stand during a pretrial hearing in an effort to show that Consumer Cause
was a mere front for Mehrban's legal practice. Efraim speaks only Farsi
and testified through an interpreter. Asked the name of the consumer group,
she replied: 'Help the customers.' Efraim said she did not know whether
it had any other officers."
However, the Times reports that Mehrban has also represented
clients whose independent existence will be familiar to some of our readers,
including the National Coalition of Free Men (on whose behalf he filed
suit recently against Los Angeles County, saying it was being discriminatory
by maintaining a commission on women's issues but not one for men's) and
the National Council Against Health Fraud (on whose behalf Mehrban went
to court over the effectiveness of homeopathic remedies; numerous favorable
mentions of Mehrban turn
up on QuackWatch and he is listed on QuackWatch's Legal
Advisory Board). According to the Times, Mehrban is currently
in court suing dentists on the claim "that the mercury in silver fillings
could cause birth defects and diseases". We wonder how that sits
with his friends over at the NCAHF, which recently voiced
agreement with the view of the American Dental Association that a different
lawyer's West Coast suit against mercury fillings constitutes "an egregious
abuse of the legal system." (see Jul. 16).
(Monte Morin, Los Angeles Times, Oct.
26). For more on Prop 65 litigation, see Daniel Blackburn, "The
be-all, catch-all", San Luis Obispo New Times, Mar.
7. (DURABLE LINK)
November 4-5 --
Self-defense, of course. Former policeman Eddie Myers
fired 36 shots at Emma Horton from three different guns, hitting her 14
times. Last month a jury acquitted Myers on grounds of -- what else?
-- self-defense. "This is a runaway jury and crazy verdict," said
Holmes County District Attorney James Powell III. Defense attorney
Chokwe Lumumba disagreed, saying Myers was reasonably in fear of his life:
Horton, who was an assistant police chief and Myers's sister-in-law, was
armed and Myers said she had reached for her gun. When found, "Horton
was armed, but her gun was found strapped in its holster on her body."
(Jimmie E. Gates, "Ex-cop offers apology to family", Jackson Clarion-Ledger,
23). (DURABLE LINK)
November 4-5 --
You breached my privacy, says serial killer. Australia:
"Serial killer Ivan Milat could receive up to $40,000 in compensation over
alleged breaches of [New South Wales] privacy laws, State Parliament heard
yesterday. Milat has lodged a complaint with the NSW Privacy Commission
over the public release of x-rays taken last year when he swallowed three
razor blades, 24 blade staples and a nail-clipper chain. Milat claimed
he did this in protest at his solitary confinement but prison authorities
believe the killer was hoping for a transfer to a medical facility from
which to escape.... Milat, who is serving seven life sentences for the
murder of seven backpackers between September 1992 and November 1993, stood
to gain up to $40,000 in compensation if his complaint was upheld, he said.
... 'Milat believes as a result of those x-rays becoming public, that his
personal rights have been impinged,' [Corrective Services Minister Richard
Amery] told Parliament." (Linda Silmalis, "Milat's compo bid could
pay $40,000", Sydney Morning Herald, Oct.
30). (DURABLE LINK)
November 4-5 --
"Resounding victory" for Microsoft. Last Friday's ruling
was a rebuke to activist state attorneys general and others who'd wanted
to pursue the technology company
to the bitter end. "U.S. District Judge Colleen Kollar-Kotelly embraced,
with minor changes, the settlement struck last winter aimed at addressing
Microsoft's violations of antitrust laws. ...And she all but ridiculed
the states for the legal theories they put forth to justify tougher restrictions
on the Redmond, Wash., company." (Jonathan Krim, "Judge Accepts Settlement
in Microsoft Case", Washington Post, Nov.
2; Dennis J. Opatrny, "Reaction Mixed on Microsoft Decision", The
4). (DURABLE LINK)
November 1-3 --
WHO demands pretzel de-salting by law. "Far from just
encouraging people to leave aside the salt pot to prevent high blood pressure,
governments should resort to legislation to cut the amount of salt in processed
the World Health Organisation (WHO) said Wednesday." The transnational
agency for years has been pushing governments to restrict tobacco, which
seems to have whetted its activist spirit. ("East Less Salt -- By Law,
Says WHO", AFP/Discovery Health Channel, Oct.
30). In Australia, "Take-away [take-out] chains may face pressure to
end cheap deals on super-sized meals under a radical plan to be proposed
to the Federal Government to combat obesity. Commercial television
networks could also face new restrictions on screening fast-food and confectionery
advertisements, especially to children." (Fia Cumming, "New laws
target fast food", Sydney Morning Herald, Oct.
13). See also Andrew Ferguson, "Tobacco Lesson for McDonald's in Fat
War", Bloomberg.com, Sept.
10 (interview with John Banzhaf); Iain Murray, "Slaughtering the Fatted
Calf", TechCentralStation, Aug.
19. (DURABLE LINK)
November 1-3 --
Mudslinging in Ohio high court races. Trial lawyers and
labor unions have been funding attack ads against two Republican candidates
for the Ohio Supreme Court, incumbent Justice Evelyn Stratton and Lt. Gov.
Maureen O'Connor, in a campaign so ugly that it has drawn a formal condemnation
from the Ohio State Bar Association. "The ad, produced by the Citizens
for an Independent Court political action committee, depicts laughing businessmen
in suits inside a limousine, as a narrator states Justice Stratton and
Ms. O’Connor are on 'their side.'" (Jim Provance, "State bar assails
ad in Ohio court race", Toledo Blade,
22; Emily Heller, "Attack ads, big money set tone again this year",
Law Journal, Oct.
28). Ohio GOP chairman Bob Bennett identifies an element of hypocrisy:
"The same trial lawyers who funded this ad were outraged only two years
ago when similar tactics were used against Justice [Alice Robie] Resnick,"
one of their own favorites. (Liz Sidoti, "Group's ad links GOP Supreme
Court candidates to big business", AP/Akron Beacon Journal, Oct.
16)(see Oct. 30, 2000).
On judicial races in
other states, see "Courting the Vote", National Law Journal, Nov.
1 (fewer big fights between trial lawyers and their opponents than
two years ago, Mississippi and Ohio aside). (DURABLE
November 1-3 --
"Mom who drugged kids' ice cream sues". "A Phoenix mother
who admitted lacing her
daughters' ice cream with prescription tranquilizers is suing a health
care provider and others, saying they are responsible for her drug-induced
delirium at the time. Jodi Lynn Henry, 38, who was acquitted in July
of attempted murder charges, filed a medical malpractice claim in Maricopa
County Superior Court against Jewish Family Services, a nurse practitioner
and ValueOptions, a mental-health care provider." (Carol Sowers,
Arizona Republic, Oct.
30). (DURABLE LINK)