June 10-11 -- New
Orleans cleanup continues. "It was bad enough that New
Orleans personal injury attorney Curtis Coney Jr. was illegally paying
'runners' to solicit accident victims, paying them $500 for each ambulance-chasing
referral. When his secretary was subpoenaed to testify before a federal
grand jury, Coney compounded his problems by urging her to lie about the
payments, even though she was the one who usually doled them out. ... In
a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded
guilty to 10 counts of 'structuring' referral payments to hide them from
the state and federal governments, one count of conspiracy and one count
of obstruction of justice for pressuring [the secretary] to lie. As part
of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail
sentence for Coney." The lawyer's guilty plea is among the fruits
of "a 4-year federal investigation of personal injury attorneys, a quietly
unfolding case that has resulted in more than 20 convictions". Targeted
along with attorneys and "runners" are "medical providers who exaggerated
or falsified injury claims in order to secure lucrative insurance settlements."
(Michael Perlstein, "Lawyer guilty in referral scheme", New Orleans Times-Picayune,
May 16). (DURABLE LINK)
June 10-11 -- Bounty-hunting
in New Jersey. The administration of Gov. Jim McGreevey
has retained a flamboyant private plaintiff's lawyer to pursue claims seeking
to hold businesses legally liable for wastes
left over from the state's industrial past. Although Allen Kanner
is initially donating his services for free, it is expected that he will
take a contingency stake in some or many of the state's financial recoveries.
Also being hired is a politically well-connected law firm named Lynch Martin
Kroll, associated with one of the state's Democratic power brokers.
Together, Kanner and the Lynch firm "are scouring state files for possible
'natural resource damage' claims. Such claims -- little used in the state's
past -- require polluters to go far beyond simple cleanups by making them
pay the public for things such as lost fishing time, lost tap water, injured
wildlife and soiled scenery." (Alexander Lane, "State retains enviro-lawyer
who gets polluters' attention", Newark Star-Ledger, May 11). More:
5, 2004. (DURABLE LINK)
June 10-11 -- The
Rule of Lawyers reviewed. In the June Commentary,
Washington attorney and Findlaw columnist Barton Aronson contributes a
generous appraisal of our editor's latest book. (DURABLE
June 9 -- "Silver's
wreck". Our editor has an op-ed piece in today's New York
on the impending demise of auto leasing in New York state, wrecked by the
state's archaic "vicarious liability" law whose chief defenders include
the state trial lawyers' association and Assembly Speaker Sheldon Silver
(Walter Olson, New York Post, Jun.
9). Our earlier coverage of the issue is here.
June 9 -- "Families
of teens killed in crash after rave sue U.S. government".
"Family members of five teens who died when their car careened off a cliff
after an all-night rave party have filed a suit against the U.S. government
for issuing the event's permit. 'If you knowingly allow use of your land
for a drug party and people get killed, we allege you are partially responsible,'
said Andrew Spielberger, a West Hollywood-based attorney representing the
families." (AP/Sacramento Bee, Jun. 1). (DURABLE
June 9 -- The intimidation
tactics of Madison County. Four business groups held a
press event in Madison County, Ill.,
last week to unveil the latest report depicting the county's courts as
a paradise for plaintiff's lawyers (U.S. Chamber of Commerce, "The
Rogue Courts of Madison County" (PDF)). What happened next?
Local plaintiff's attorney Bradley M. Lakin promptly slapped
them with a subpoena demanding that their executives testify in a would-be
class action case against Ford Motor on alleged paint defects. "Subpoenas
are for witnesses who know something about the case," said Victor E. Schwartz,
general counsel of the American Tort Reform Association. "In this situation,
ATRA knows nothing. It is clear the subpoena power is being used to squelch
ATRA from speaking out about Madison County and its inequities as one of
the leading 'judicial hellholes' in the United States." Last year
ATRA published a report entitled "Justice
for Sale: The Judges of Madison County". ("ATRA Says Subpoena Power
Should Not Be Used To Squelch First Amendment Rights", ATRA press release,
6; Illinois Civil Justice League,
which was one of the subpoenaed groups along with ATRA
and the national and Illinois
Chambers of Commerce, has links). Updates Jul.
12: subpoenas dropped and Jul.
26: sanctions motions dropped.
And St. Louis Post-Dispatch columnist Bill McClellan turns the
spotlight on a recent Madison County class
action settlement involving Sears tires: "If you have a receipt showing
you purchased an AccuBalance from a Sears auto center between 1989 and
1994 and are willing to take the time to request a claims form and fill
it out and send it in, you could get $2.50 for each tire, up to a total
of $10. Of course, who keeps receipts from 1989? You still might be eligible
for $1.25 a tire, up to a total of $5. If Sears does not have a record
of your purchase, you will be eligible only for a $3 Sears coupon. Of course,
there will be forms to fill out under threat of perjury. Things are a little
better for the lawyers who 'represented' you. The settlement says that
their legal fees cannot exceed $2.45 million." McClellan is bold to tackle
this subject, since when he criticized lawyers from the same class-action
firm in 1999 they came after him with a lawsuit, later dropped (see Nov.
4, 1999)(Bill McClellan, "Just like your tires, wheels of justice may
be out of balance", St. Louis Post-Dispatch, Jun. 4). (DURABLE
June 6-8 -- New
legal ethics weblog. David Giacalone, formerly of PrairieLaw,
has started a new weblog, ethicalEsq?,
specializing in "client-centered legal ethics". He's already posted
on several issues of interest, including Common Good's early-offers proposal
3), the case for requiring lawyers to disclose more fully to clients
the circumstances of their representation (Jun.
3), and (citing this website) the still-unfolding battle in a New York
courtroom over whether Judge Charles Ramos has authority to review and
correct outrageous tobacco fees (May
31; on tobacco fees, see Daniel Wise, "Judge's Power to Review $625M
Tobacco Fee Award Challenged", New York Law Journal, May
28). (DURABLE LINK)
June 6-8 -- Claims
consciousness in Utah. To promote a contemplated April
Fool's Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published
in local papers a tall tale about how wandering Vikings had left precious
ancient artifacts in a local cave. Most residents seem to have gotten
the joke, but various readers in the nearby town of St. George stepped
forward to lay claim to the supposed treasure found in the cave, several
of them saying "their ancestors had been part of the settlement and had
owned some of the artifacts. ...When Sherratt explained the whole story
was made up to promote the festival, the St. George residents accused him
and other officials of a cover-up." (Paul Rolly and JoAnn Jacobsen-Wells,
"Ad Flap Is Stranger Than Fiction", Salt Lake Tribune, May
26). (DURABLE LINK)
June 6-8 -- Hiker
cuts off use of his name. Equipped
to Survive, a wilderness gear site, recommended a pocket-sized emergency
beacon by referring to a recent survival story that received worldwide
publicity: "Your survival should not require you to amputate your own arm,
as Aron Ralston was recently forced to do in order to escape being trapped
by an 800-lb. boulder." Before long the site's proprietor received
this cease and desist letter
(PDF format) dated June 5 from Ralston's lawyer demanding that the reference
be removed as in violation of the hiker's "right of publicity" under state
statutes. There followed this rude
reply from the website proprietor, inviting the lawyer to "stick your
ridiculous cease and desist demand where the sun don't shine". Now
cut that out, boys, there's no reason we can't be polite. (DURABLE
June 4-5 -- Blaming
murder on flat tire. A 19-year-old woman, having stopped
to change a flat tire at the side of the road, is taken away and murdered
by a local man. According to a lawyer for her family, the Ford Motor
Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder.
A court dismissed the case against the two companies on grounds that they
could not have found harm of this sort foreseeable enough to trigger a
legal duty of care, but the family's lawyer, Richard Rensch, is appealing
to the Nebraska Supreme Court. (AP/KETV, Jun. 3; "Murder victim's
parents say flat set off tragic events", Fremont (Neb.) Tribune,
3). (DURABLE LINK)
June 4-5 -- Fox
News "The Big Story". Our editor was interviewed on screen
for a piece that Fox News's "The
Big Story" is preparing on the search for deep pockets in litigation.
It's tentatively scheduled to run Wednesday, but these things are always
subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE
June 4-5 -- Malpractice:
juggling the stats. In the course of an otherwise standard
feature package on the medical malpractice
crisis (Daniel Eisenberg and Maggie Sieger, "The Doctor is Out", Time,
9, and sidebars) Time gives credence to a newly issued report
asserting that doctors' malpractice premiums are actually rising fastest
in states without damage caps (Jyoti Thottam, "A Chastened Insurer", Jun.
1). Very curiously, the new report (from Weiss Ratings, "an independent
insurance-rating agency in Palm Beach Gardens, Fla.") is described as compiling
figures for median premiums and payouts (the numbers compared with
which half of the data points are higher and half lower) rather than averages,
even though this is a field where the outliers (giant awards, unusually
litigious specialties) drive the debate and the dollar figures. CalPundit
(Jun. 2) spots
this anomaly and opines: "this is so obviously the wrong statistic to use
in this case that there must be some kind of axe to grind here" (via Jonathan
Adler, NR Corner).
A table laying out the (very large) differences between malpractice
premiums between Los Angeles (where doctors practice under California's
MICRA damages cap) and three litigious jurisdictions elsewhere in the country
(Miami, Long Island, Detroit) indicates that MICRA confers its greatest
benefit by far on the most litigation-prone specialties: for example, the
average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn
$ 88,593, but it's only $24,599 for an internist and $15,639 for a dermatologist
Malpractice Premium Comparison", California Physician (California
Medical Association)) (PDF format)(CMA's MICRA
Resource Center). For a more reliable reading of the crisis and
its relation to damage caps and the insurance market, check out the report
issued by the U.S. Department of Health and Human Services this spring
("Addressing the New Health Care Crisis: Reforming the Medical Litigation
System to Improve the Quality of Health Care", Mar.
3; Senate testimony by Deputy Secretary Claude A. Allen, Mar.
How big an impact do the "outlier" cases have, the small number of gigantic
verdicts that almost vanish from the calculation when per-case outlays
are calculated as a median? Among recent examples are the $78.5-million
verdict against an Orlando hospital for failing to figure out that a woman
visiting its emergency room was suffering from a bizarre undiagnosed tumor;
thought to be the largest medical malpractice award in Florida history,
it has "become the symbol of juries run amok" in the view of critics of
the system. (William R. Levesque, "Tremors still felt from whopping
jury award", St. Petersburg Times, Jun.
2). And in a result vocally criticized by appeals judges even
as they felt obliged to uphold it, a Manhattan jury's $40 million malpractice
award against one of the city's premier hospitals, New York-Presbyterian,
has been blown up to $140 million by a law mandating that annual interest
of 4 percent be added to awards "even if the jury has already adjusted
the annual amount for inflation. Critics say that means a double adjustment
for inflation in some cases, like this one." (Richard Perez-Pena, "New
York Hospitals Fearing Malpractice Crisis", New York Times, Jun.
3). (DURABLE LINK)
June 4-5 -- "Rape
defendant asks $20,000; found fly in mashed potatoes".
"If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams
could be sentenced to 112 years to life in prison. It would be his third,
and last, trip to state prison, authorities say." What has upset Williams
recently, however, is the insect impurity he says he found in his prison
dinner. He "is seeking $20,000 to ease the 'mental stress and anguish'
he said finding the fly inflicted upon him. 'It's been almost a month since
this occurred,' Williams wrote last week in the claim, 'and I still only
pick at my food .... I'm losing weight and am unable to eat properly.'"
The sum demanded was fair, according to his complaint, since public venting
of the allegations "would cost the county 'a great deal more both financially
and in bad publicity.'" (J. Harry Jones, San Diego Union-Tribune,
3). (DURABLE LINK)
June 3 -- An important
litigation skill. From Gail Diane Cox's "Voir Dire" column
in the National Law Journal, Nov.
4, 2002 (scroll down to "Jargon Watch"): "Blamestorming:
Variant of brainstorming. Sitting around in a group discussing a mistake
and how to make someone responsible for it, preferably a deep-pocket defendant.
Synonym: Litigation initiation." Maybe a session of this sort was responsible
for the naming of Shell Oil as a defendant in the Rhode Island nightclub
fire (see May 30-Jun. 1). (DURABLE
June 3 -- "Resumé
spam saddles employers". It's common these days for employers
to receive hundreds, thousands or even milllions of resumés via
email from hopeful job-seekers. Federal regulations on the books since
the 1970s, however, require most larger companies to preserve records of
all job applications, the most important reason being to furnish evidence
in case they are someday investigated for possible discrimination.
Under the strictest interpretation of the rules, companies with more than
fifteen employees must keep on file any resumé sent to them -- even
if "the applicant misspells the company's name, applies for a job not listed
or is simply not qualified." The result: a large and ever-growing
paperwork/compliance burden on American business. (Bill Atkinson, "Resume
spam saddles employers", Baltimore Sun, May 22; Michelle Martinez,
"Who Really Is An Applicant When Recruiting Online?", PeopleClick.com,
See Shirleen Holt, "Résumé spam is tiring those hiring",
Seattle Times, Jan.
19; Katherine Harding, "The new scourge: Résumé spam",
GlobeTechnology.com (Globe & Mail, Canada), Jan.
8 ("Companies that advertise jobs on-line are finding their e-mail
boxes crammed with irrelevant responses", some from applicants who blast
out responses to every job listed on a posting board). (DURABLE
June 2 -- Updates.
Further developments in cases we've covered:
* Citing its recent jurisprudence bringing constitutional due process
limits to bear on punitive damages, the U.S. Supreme Court has instructed
lower courts to reduce a $290 million award against Ford Motor in the Romo
case; the case arose from a Bronco rollover in central California, and
we've had quite a bit to say about it over the four years since it went
to trial (see Oct. 24, 2002 and links
from there) (David Kravets, "High Court Reduces Damages in Car Crash",
AP/Yahoo, May 19; Bob Egelko, "Key ruling on punitive damages", San Francisco
* The Los Angeles Zoo has transferred Ruby, its female African elephant,
to a Tennessee zoo notwithstanding a pending lawsuit (see May
16-18) complaining that the move would disrupt Ruby's bond with her
elephant "best friend"; an attorney who had gone to court seeking a temporary
restraining order against splitting the two elephants complained that zoo
authorities had acted "like thieves in the middle of the night". (Carla
Hall, "Despite Protests, L.A. Zoo Sends Elephant to Tennessee", Los Angeles
27) (via SoCalLaw, May
* The Supreme Court of Hawaii has reversed a jury's award of $2 million
to an auto service manager fired over what his employer considered credible
charges of sexual harassment (see Mar.
10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii,
Ltd., Supreme Court of Hawaii, Nov.
27, 2002; see Jeffrey Harris, "Law Watch: Preventing Harassment Trumps
Keeping Promises", Hawaii Business, Feb.
* In a humiliating defeat for backers of anti-gun litigation, a federal
"advisory" jury in Brooklyn has refused to hold manufacturers liable for
inner-city gun crime in the much-publicized
case brought by the NAACP before judge Jack Weinstein. "The panel of
12 jurors issued a finding of no liability for 45 of the defendants and
was unable to reach a verdict for the remaining 23 manufacturers or gun
dealers". (Mark Hamblett, "Federal Advisory Jury Declines to Find Gun Industry
Liable", New York Law Journal, May
15; Katherine Mangu-Ward, "No Smoking Gun", WeeklyStandard.com,
8). Update Jul.
20: judge dismisses lawsuit entirely. (DURABLE