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ARCHIVE -- MAY 2003 (II)

May 20 -- Suing 'til the cows come home.  From a Forbes article on why the city of Fresno, Calif. and its surrounding Central Valley are so economically depressed: "Then there is the assault from the greenies. In Fresno's surrounding counties, the Center on Race, Poverty & the Environment [a unit of the federally funded California Rural Legal Assistance -- ed.] has used lawsuits to halt 125 new and expanded dairy projects since 1998, projects that would have increased the state's milk cow population by a third."  (Lynn J. Cook, "Economic Death Valley", Forbes, May 26).  See also Larry Serpa, "Dairies can coexist with environment", Visalia Times-Delta, Nov. 3-4, 2001; Michael Boccadoro, "Activist groups do more to cause poverty than cure it", Dairy Business, Feb. 2002, both reprinted at DairyCares site.  (DURABLE LINK)

May 20 -- "A Grand Façade".  "[Few Americans] have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens."  (W. Thomas Dillard, Stephen R. Johnson, and Timothy Lynch, "A Grand Façade: How the Grand Jury Was Captured by Government", Cato Institute Policy Analysis #476, May 13 (executive summary; full paper in PDF format)) (DURABLE LINK)

May 19 -- Sauce for the gander dept.  Texas: "A major criticism of class-action lawsuits is that the public often gets nothing but coupons while their lawyers wind up with millions of dollars. If a proposed law makes it through the Legislature, the lawyers may be getting coupons, too.  Sen. Bill Ratliff, R-Mount Pleasant, is proposing that lawyers who win class-action suits get the same thing that their clients get. If half the award to the clients is in coupons and discounts, the lawyers will get half their fees in coupons and discounts, too."  (Terry Maxon, "Bill would give attorneys same class-action payout as clients", Dallas Morning News, May 5)(via Houston Citizens Against Lawsuit Abuse). (DURABLE LINK)

May 19 -- "Lawyers spoil fun".  Georgia: "Families and kids who found summertime fun and enjoyment each year at the Krystal River Water Park in Evans will have to find somewhere else to cool off in the months ahead.  The park is closing up shop because its liability insurance costs jumped from $8,000 a month to a whopping $58,000 a month. Customers couldn't possibly afford to pay the higher admission price park owner Ken Edwards would have to charge to offset the 700-percent premium increase." (Augusta (Ga.) Chronicle, May 11).  (DURABLE LINK)

May 19 -- "Law firms in tobacco suit seek $1.2b more".  Massachusetts: "As Beacon Hill grapples with a fiscal crisis, the lawyers who worked on the state's lawsuit against the tobacco industry are demanding the state now pay them an additional $1.25 billion in legal fees.  In recent court filings, four law firms, led by Brown Rudnick Berlack Israels of Boston, asked a Superior Court judge to enforce a contract that called for the lawyers to be given 25 percent of whatever proceeds Massachusetts received in the case. ... The lawyers' push to obtain more of the tobacco funds [on top of the $775 million they have already been awarded] has roiled the legal community in Massachusetts and nationally, with some worrying that the case will reinforce an image of avarice that dogs trial lawyers."  (Frank Phillips, Boston Globe, May 4)(see Jan. 2-3, 2002).  (DURABLE LINK)

May 16-18 -- Go ahead and have your Oreos (for now).   The San Francisco lawyer who announced that he was suing Kraft/Nabisco (see May 13) now says he's dropping the action and "only wanted to get the word out about the dangers of unlabeled fats contained in the popular black and white cookies. ...[']Now everybody knows about trans fat.' He expressed no remorse for using California courts as a publicity tool."  (Ron Harris, "SF lawyer says he's dropping suit against Oreo cookies", AP/San Francisco Chronicle, May 14).  Bloggers Brian Peterson (May 13) and Timothy Sandefur (May 14) have their doubts about whether it's actually consistent with legal ethics to file lawsuits in search of free publicity for causes, while George Mason University law professor David Bernstein, an old friend and collaborator of ours who's just launched his own law blog, notes that (like it or not) lawsuits are often extraordinarily effective as bids for attention (May 15, archives busted, scroll down).  Meanwhile the New York Times, which ran an "Editorial Observer" commentary favorable to the McDonald's obesity suit (see Feb. 19), chimes in with an article presenting the Oreo affair exclusively from the plaintiff's point of view, with not a syllable of dissent or skepticism about the suit's merits (Marian Burros, "A Suit Seeks to Bar Oreos as a Health Risk", New York Times, May 14).  On the other hand, Chicago Sun-Times columnist Mark Brown rejoices that he's "found a way to finance my children's college education. ... I don't intend to quit until I've eaten all 45 cookies in the package." ("In search of the lethal dose of Oreo cookies", May 14). (DURABLE LINK)

May 16-18 -- After California bounty-hunting scandal, lawyers win again.  When people talk about the trial lawyers' controlling the California legislature, this is the sort of thing they have in mind.  For several months editorial and public opinion in the state has registered outrage at lawyers' use of the state's broad unfair-competition law to extort cash settlements from thousands of small-business owners (see Jan. 15, Mar. 3).  But "The attorneys, to the utter surprise of no one, emerged as victors in a showdown hearing of the Assembly Judiciary Committee. Voting largely along party lines, in what was clearly a scripted scenario, the committee killed three bills that would have imposed some reforms on the unfair competition law -- UCL, as it's called -- and approved a lawyer-backed substitute that contains only superficial changes and, if enacted, would actually make it easier to collect money in UCL cases."  The committee passed "a measure written by the personal injury attorneys lobby, Consumer Attorneys of California, [which] in conjunction with another lawyer-written measure in the Senate, would impose very mild new requirements on attorneys filing UCL suits, but it would also add a provision, called 'disgorgement,' that would allow more money to be obtained from UCL defendants and thus increase plaintiffs' leverage. Recent state Supreme Court decisions had barred 'disgorgement' in UCL suits."  (Dan Walters: "Democrats side with lawyers over small-business owners", Sacramento Bee, May 9). (DURABLE LINK)

May 16-18 -- "Suit Seeks to Keep Elephant at L.A. Zoo".  "A woman has filed suit to stop the Los Angeles Zoo from sending its female African elephant, Ruby, to the Knoxville Zoo in Tennessee, a move she said would break a longtime bond between the animal and a female Asian elephant, Gita." (Carla Hall, Los Angeles Times, May 15) (see also SoCalLaw) (DURABLE LINK)

May 15 -- Judge kicks class-action lawyers off case.  "It was a stunning ruling by a federal judge exposing what she saw as lawyers trying to settle a big class-action lawsuit for their own benefit and with little regard for their clients. U.S. District Judge Elaine E. Bucklo last month booted six Chicago-area lawyers off a national class-action suit that accused H&R Block Inc. of cheating customers who took out tax-refund loans.  In her ruling, she chastised the lawyers for doing little spadework to prove their case. The settlement fund was to be capped at $25 million for a potential class of 17 million people. The lawyers, whom she described as 'inadequate,' would have received $4.25 million."  (Ameet Sachdev, "Class-action reform pushed into spotlight", Chicago Tribune, May 1; "Federal Judge in Illinois Rejects Settlement In Suit Against H&R Block Over Refund Loans", BNA Class Action Litigation Report, Apr. 2; Mark Tatge, "A Pox on Both Houses", Forbes, May 26). (DURABLE LINK)

May 14 -- NTSB blames pilot error, but airport told to pay $10 million.  "A Cook County jury awarded $10.45 million to the family of a pilot killed in 1996 when the executive jet he was at the controls of slid off the runway and burned at Palwaukee Municipal Airport.  The pilot, Martin Koppie, 53, had been accused in earlier lawsuits of causing the crash that killed three other people."  The new verdict, on the other hand, throws $9.9 million worth of blame onto the municipalities of Wheeling and Prospect Heights, which own and operate the airport, for allegedly locating a drainage ditch too close to the runway. "In a 1998 report, the National Transportation Safety Board faulted Koppie for not aborting the takeoff and co-pilot Whitener for not taking 'sufficient remedial action.' In 2001, a Cook County jury awarded $18.9 million to Whitener's family, who had argued that Koppie caused the crash and Chicago-based Aon Corp. was responsible as his employer."   (Michael Higgins, "$10 million award in '96 plane crash", Chicago Tribune, May 7).   (DURABLE LINK)

May 14 -- "Prosecutor had ordeal as defendant".  An assistant Massachusetts attorney general gets caught up in charges of sexual harassment that mushroom into criminal charges before eventually collapsing, not before turning his life and reputation upside down.  "Exculpatory evidence that surfaced during [Michael] Atleson's trial, prosecutors now say, cast serious doubt on the credibility of his accusers."  Despite Atleson's acquittal and the withdrawal of other charges against him, a spokesman for Suffolk District Attorney Daniel Conley has no apologies: "The system worked for Mr. Atleson", he claims.  Read the story and see whether you agree (Ralph Ranalli, Boston Globe, Apr. 14)  (DURABLE LINK)

May 13 -- Lawsuit's demand: stop selling Oreos to kids.  "Oreo cookies should be banned from sale to children in California, according to a lawsuit filed by a San Francisco attorney who claims that trans fat -- the stuff that makes the chocolate cookies crisp and their filling creamy -- is so dangerous children shouldn't eat it.  Stephen Joseph, who filed the suit against Nabisco last week in Marin County Superior Court,... [is a "public interest lawyer" who has also] formed a nonprofit corporation called BanTransFats.com, Inc."  (Kim Severson, "Lawsuit seeks to ban sale of Oreos to children in California", San Francisco Chronicle, May 12). "Fast food restaurants are facing claims that hamburgers can be as addictive as heroin in the next twist to the obesity lawsuits that threaten McDonald's and Burger King. John Banzhaf, the self-styled 'legal terrorist' who pioneered tobacco litigation in the 1960s," contends that studies suggest that fat-laden food can produce the same sorts of changes in the brain as powerful drugs.  (Simon English, "Burgers are 'as bad as heroin', activist claims", Daily Telegraph (UK), May 9).  More: Lance Gay, "Food industry balks at mandatory labeling", Scripps Howard/Bremerton, Wash. Sun, May 9; "A Twinkie Tax", CBS News, May 12. (& update May 16-18: suit dropped) (DURABLE LINK)

May 13 -- Update: court installs valedictorian.  "A high school student won sole rights to Moorestown High School's valedictorian title Thursday when a judge ruled that she should not have to share the honor with two other students." (see May 3-4) "U.S. District Judge Freda Wolfson ordered the Moorestown district to name Blair L. Hornstine the valedictorian for the class of 2003." ("Student Wins Valedictorian Lawsuit In Moorestown", NBC10.com, May 9). Kimberly Swygert has a lot of commentary on the case at her No. 2 Pencil blog (May 9, May 2).  (DURABLE LINK)

May 12 -- Shouldn't have let him get so drunk.  Australia: "A Norlane man is suing Geelong Football Club for allowing him to get too drunk at a president's lunch. ...In Supreme Court documents seen by the Geelong Advertiser, Gregory Allan Clifford claims he consumed 'excessive quantities of liquor' supplied by the club at a president's lunch about two years ago. Mr Clifford claims he fell down a set of stairs at the club function and severely injured himself. In the civil lawsuit against the club he claims the club should have exercised reasonable care to conduct the function in a way where people drinking were reasonably safe."  In a case that made considerable headway in the Australian courts before recently being dismissed, a woman sued a New South Wales rugby club for allegedly continuing to serve her alcohol although she was intoxicated; the "woman had claimed she was hit by a car while 'wandering drunkenly' 100 metres away from the club, the Supreme Court documents said." (Natalie Staaks, "Cats sued", Geelong Advertiser, May 8, no longer online) (via Brain Graze) (DURABLE LINK)

May 12 -- Malpractice studies.  Congress's Joint Economic Committee publishes a new study finding that the medical malpractice litigation system performs poorly in both its major social roles: deterring medical negligence and fairly compensating the negligently injured.  Reform including liability limits would offer substantial benefits that could include billions in annual budgetary savings to the federal fisc and improvements in medical care affordability that could permit millions of Americans to be priced back into the health insurance market.  (Senior Economist Dan Miller, "Liability for Medical Malpractice: Issues and Evidence", Joint Economic Committee, May (PDF format)). A similar study, focusing on Texas: Chris Patterson, Colleen Whalen and John Pisciotta, "Critical Condition", Texas Public Policy Foundation, April (PDF format).  In an April poll of Texas Medical Association members, nearly two-thirds of the 1,027 physicians responding "say the climate in which they practice medicine has forced them to deny or refer high-risk cases in the past two years." ("Doctors forced to limit or deny patient care", Citizens Against Lawsuit Abuse Houston website, undated). 

Although Massachusetts's situation is not as bad as that as many other states, it is still seeing a departure of respected doctors from the liability-wracked field of obstetrics.  "'You start to think maybe this isn't worth it,' said Dr. Ronald Rubin, 41, of Shrewsbury, who gave up obstetrics after being sued and is now completing an anesthesia residency. 'My case was dismissed, but I got deposed. It was six years of going back and forth and taking time off from work. It took a tremendous toll.'" (Liz Kowalczyk, "Insurance costs leave one less baby doctor", Boston Globe, Apr. 27).  And following a tripling of its insurance premiums, a 16-doctor radiologist practice in the Daytona Beach, Fla. area has announced that it intends to stop performing mammograms, which is particularly problematic since the practice currently performs the majority of the mammograms carried out in Volusia and Flagler counties.  ("Radiologists say they'll stop performing mammograms on June 1", AP/Daytona Beach News-Journal, May 8)(see Nov. 2, 2000).  (DURABLE LINK)

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