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ARCHIVE -- SEPTEMBER 2002 (I)


September 9-10 -- Mississippi doctors win a round.  "[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates." (Adam Nossiter, "Miss. Lawmakers Set Limits on Medical Lawsuits", Washington Post, Sept. 7).  "Mississippi's legislature is the third in less than a year to be called into special session over the issue, an 'extraordinary trend,' said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures."  The fate of the legislation remains uncertain, however.  (Patrice Sawyer, "Plenty of talk, but no action", Jackson Clarion-Ledger, Sept. 8). 

It's far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past.  (e.g. Ohio: Aug. 18, 1999).  Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court's pro-plaintiff tilt has gone too far.  McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court's decisions most hostile to defendants.  (Bobby Harrison, "McRae a lightning rod for business groups", Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)

September 9-10 -- Hiring apple pickers = racketeering.  "A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages.  The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents."  Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well?  The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). ("Racketeering suit vs. apple growers, packers is revived", Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)

September 9-10 -- Free legal services! (except when they aren't).  The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year's terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards.  "Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a familyís payout from the September 11th Victim Compensation Fund, a victims' advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees."  (Timothy Starks, "Schumer Pushes Fees", New York Sun, Aug. 5). (DURABLE LINK)

September 9-10 -- Ignominious wind-down to Norplant campaign.  At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning.  The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer.  In an August 14 ruling, "a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases."  Earlier, a large class of plaintiffs "settled out of court for a payment of $1,500 each", a paltry sum by the standards of what must originally have been expected.  "Notably," wrote U.S. District Judge Richard Schell, "in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and" such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis.  (Pamela Manson, "Federal Judge Dismisses Norplant Damage Claims", Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)

September 6-8 -- "Doctors hope fines will curb frivolous lawsuits".  Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low.  "The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription.  Henry, who declined comment on the fines, filed a notice of appeal Friday. ... Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. ...  'It takes time away from your practice and these things can be emotionally devastating to a physician," Low said.  Attorney Henry is a high-profile local advertiser: "Many in the community know him by the prominent ad on the back of the local phonebook". (Jesse Bogan, San Antonio Express-News, Aug. 5).  (DURABLE LINK)

September 6-8 -- Slippery slope on terrorism compensation.  Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn't we get retroactive compensation for our losses too?  And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others.  (Michael Freedman, "Compensatory Damages", Forbes.com, Sept. 16)(reg). (DURABLE LINK)

September 6-8 -- Update: government can be sued for not warning of Yellowstone thermal-pool dangers.  "A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi's complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park." (see Jun. 26, 2001) ("Judge won't dismiss Yellowstone burn victim's lawsuit", AP/Billings Gazette, Aug. 30)
(DURABLE LINK)

September 5 -- "Disabled Entitled to Same Sight Line in Theaters".  Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. "has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act.  Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable."  Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand.  (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)

September 5 -- Missouri: a judge speaks out.  Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts.  "My story begins around 1985.  By that time it was possible to see major inroads the plaintiffsí lawyers were making in asserting control over the civil justice system.  They exercised tremendous influence in the Missouri legislature, but also in the judiciary.  Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City.  ... The contingent fee has gotten so out of hand something needs to be done.  I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon.  This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts."  There's much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, "Opening Statement", Aug. 16).   (DURABLE LINK)

September 5 -- A Gotham lawyer's complaint.  Outside the courthouse in Brooklyn, the New York Press's Johnny Dwyer transcribes the gripes of a local personal injury attorney who "only wants his first name used -- Dan".  Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren't willing to accept the bad news.  "Plaintiffs have a skewed view on what a case is worth. Iíve never seen a more obsessional group of people. The case becomes their whole life. And itís the newer immigrants that are suing the most -- at least in Brooklyn. ...Thatís become the new American dream."  ("Lawsuits: A Lawyer's Dilemma", New York Press, vol. 15, #36 (recent)).  More: "Jane Galt" and her readers weigh in. (DURABLE LINK)

September 3-4 -- By reader acclaim: "Airline sued for $5 million over lost cat".   "A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. ... 'It's not about the money,' [Andrew] Wysotski said." (AP/CNN, Aug. 29). (DURABLE LINK)

September 3-4 -- "Federal authorities say judge offered illegal payoff".  Pittsburgh: "In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope." Judge Jaffe, who is presiding over thousands of asbestos cases, "said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer's firm $500 per motion in legal fees, or $13,000."  He also said that by holding a mass settlement conference he could "put pressure on defendants to favorably settle the claims. ...Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge." Persky's firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff's attorneys don't sometimes figure as heroes in these chronicles?  (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003(DURABLE LINK)

September 3-4 -- "Crime pays for teenage lout".  Australia: In a decision that "stunned the legal community and victim's groups", a "teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican.  Joshua Fox was a 'grossly stupid, totally irresponsible drunken lout', according to a court assessment. But a [New South Wales] judge said the force used against him was excessive.  Mr. Fox's mother was awarded $18,000 for nervous shock upon seeing her son's injuries." (Steve Gee and Patrick O'Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)

September 3-4 -- 2002's least surprising headline.  [Sen. John] "Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in 'soft money' -- the type of donation soon to be banned, with three-quarters of it coming from trial lawyers."  (Jim VandeHei, "Trial Lawyers Fund Edwards", Washington Post, Sept. 3).  (DURABLE LINK)

September 3-4 -- A breast-cancer myth.  For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York's Long Island.  But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis.  ("Federal study shows no link between pollution and breast cancer", AP/MedLine, Aug. 6; Gina Kolata, "Looking for the Link", New York Times, Aug. 11; "Epidemic That Wasn't", Aug. 29)(both reg)).  See Ronald Bailey, "Cluster Bomb", Reason Online, Aug. 14.  This weekend, in a perhaps surprising development, the New York Times's editorialists joined the chorus ("Breast Cancer Mythology on Long Island", Aug. 31)(reg).
Who should be embarrassed by these developments?  Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, "Elmirans to testify about cancer", Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, "Breast Cancer Activism", Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter).  And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, "Cancer, Inc.", Sierra Magazine, Sept./Oct. 1999). For similar myths about "cancer alley" in Louisiana, see Nov. 8, 2000(DURABLE LINK)


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