- Woman who escaped first WTC bombing broke her ankle ten days later. Should New York’s Port Authority pay her $500,000? [Hochfelder]
- Former New York congressman and Pace Law School dean Richard Ottinger and wife rebuffed in what court deems SLAPP suit against commenter who criticized them on online forum; commenter says legal fees have cost him two years’ income [White Plains Journal-News, Westchester County; earlier] Amici in Massachusetts case endorse anti-SLAPP protection for staff of media and advocacy organizations [Citizen Media Law] “Canadian Court Rejects Defamation Liability for Hyperlinks” [same]
- “Chuck Yeager Tries Again to Stretch Right of Publicity” [OnPoint News, earlier]
- And naturally the advocates are demanding more regulation rather than less: “[Restaurant] Calorie Postings Don’t Change Habits, Study Finds” [NYT] More: Ryan Sager, Jacob Sullum.
- Famed L.A. lawyers Thomas Girardi and Walter Lack might get off with wrist-slaps over Nicaraguan banana suit scandal [The Recorder, Cal Civil Justice, earlier]
- Ralph Lauren lawyers: don’t you dare reproduce our skinny-model photo in the course of criticizing our use of skinny models [BoingBoing; and welcome Ron Coleman, Popehat readers; more at Citizen Media Law and an update at BoingBoing] Copyright expert/author Bill Patry is guestblogging at Volokh Conspiracy [intro, first post, earlier]
- Profile of John Edwards aide who played key role in Rielle Hunter affair [Ben Smith, Politico]
- Blind lawyer’s “call girl bilked my credit card” claim includes ADA claim against credit card company (but judge rejects it) [ABA Journal, Above the Law]
- “Intellectual Easter egg hunt”: great Michael Kinsley column on Wyeth v. Levine and FDA drug preemption [Washington Post]
- Negligent for the Port Authority to let itself get bombed: “Jury Awards $5.46M to 1993 WTC Bomb Victim” [WINS, earlier]
- “How following hospital quality measures can kill patients” [KevinMD]
- Owner of Vancouver Sun suing over someone’s parody of the paper (though at least it drops the printer as a defendant) [Blog of Walker]
- Court dismisses some counts in Billy Wolfe bullying suit against Fayetteville, Ark. schools [NW Arkansas Times, court records, earlier here and here]
- Law bloggers were on this weeks ago, now Tenaha, Tex. cops’ use of forfeiture against motorists is developing into national story [Chicago Tribune, earlier here and here]
- Can hostile blog posts about a plaintiff’s case be the basis for venue change? [IBLS]
- Calls 911 because McDonald’s has run out of chicken nuggets [Lowering the Bar]
In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What’s Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).
Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not “legal error” to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys’ incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.
A New York State Supreme Court Justice has denied a defense motion to set aside the jury verdict finding the Port Authority primarily responsible for the first terrorist attack on the World Trade Center. (AP, Mar. 2) Now to a whole new jury trial on damages for the up-to-400 remaining plaintiffs, unless the Port Authority appeals.
Aside from the bizarre assignment of responsibility (68% to the Port Authority, just 32% to the terrorists), the case also demonstrated yet another exemplary feature of our tort system: a speedy resolution of claims. The attack was fourteen years ago — and damages haven’t even been calculated yet (let alone the appellate process begun).
Originally covered by Overlawyered: Oct. 27, 2005.
For the past three years, Stan Cramer has been fighting to save his parking garage near the Harrisburg International Airport from eminent domain seizure by the airport’s municipal operating authority. The airport wants to eliminate competition with its own parking lots, and when Cramer refused to sell voluntarily, the authority used its powers under Pennsylvania law to take the property by force. Recently, a Pennsylvania judge allowed Cramer’s lawsuit to stop the seizure to proceed to trial.
In a related case, Pennsylvania AG Tom Corbett filed a federal lawsuit last year to stop the airport authority’s seizure on the grounds that it violates federal antitrust law. It’s a strange setup: The Commonwealth of Pennsylvania suing one of its own subdivisions in federal court over the use of power granted by state law. In March, U.S. District Judge Christopher Conner dismissed the AG’s complaint, citing the airport authority’s immunity from federal antitrust lawsuit as a state actor. Conner said the airport’s anti-competitive motives were irrelevant; its actions were clearly authorized by the Pennsylvania legislature.
Corbett appealed the judge’s dismissal to the Third Circuit Court of Appeals. Briefs were filed in October, and a decision on the appeal is expected next year. Meanwhile, new management has taken over at the airport, and they are trying to negotiate a settlement with Cramer.
In the Washington Post, Brandt Goldstein gives me a mention in the course of reviewing The Money Lawyers, the new book by Joseph Goulden profiling some of the country’s most powerful attorneys (“Legal vultures”, Washington Post, Jan. 18). I gave this book a blurb, which can be seen on its back jacket (“Eye-opening and timely. Goulden gives us a close look at some of the nation’s most powerful lawyers. Both friends and foes will learn a great deal.”)
On Dec. 18 the Chicago Sun-Times took note of Ted’s entry about the cautionary wording on a Milky Way chocolate bar, “Warning: contains milk”. (Zay N. Smith, “An intelligent look at who knew what”, Chicago Sun-Times, not online). I’m quoted in an editorial (I think that’s what it is) on punitive damages in the Fredericksburg, Va. paper (“Punitive-damage reform takes a big step in the General Assembly”, Fredericksburg Free Lance-Star, Jan. 20). Aileen Cho of the Engineering News Record quoted me in an article on a New York jury’s ruling that the city’s Port Authority was largely responsible for the 1993 WTC bombing (“Jury Says Agency Liable in Bombing”, Nov. 7, not online). And in the ABA Journal eReport, G.M. Filisko quotes me airing some of my differences with AEI’s Alex Tabarrok concerning the workings of the lawyer’s contingency fee (“Fee Caps Won’t Solve Liability Crisis, Study Says”, Sept. 23).
A few weeks ago (see Oct. 27, Oct. 29) a jury decided to hold the Port Authority of New York and New Jersey 68 percent to blame for the first World Trade Center bombing, and the terrorists themselves only 32 percent responsible. Now the authority has filed court papers declaring that the verdict “shocks the conscience” and urging that it be set aside. According to the motion, the outcome in the case “stemmed directly from the court’s jury instructions and verdict sheet interrogatories that violated the Port Authority’s fundamental right to a fair trial.” The authority also faults Judge Nicholas Figueroa for “banning testimony from terrorism experts called by the authority,” and for asserting that he would be justified in overturning a defense verdict should the jury return one. (Anemona Hartocollis, “Port Authority Seeks Voiding of Jury Verdict”, New York Times, Dec. 7). Andy MacCarthy has a comment at National Review Online.
New York Times columnist Clyde Haberman, on a jury’s determination last week (Oct. 27, Oct. 29) that negligent security on the part of New York’s Port Authority was more responsible for the damage from the first (1993) bombing at the World Trade Center than the Islamist terrorists themselves:
Through some mathematical wizardry, the jurors held the authority to be 68 percent at fault, the murderers only 32 percent.
Poor terrorists! Guess they couldn’t help themselves. They must have felt they had no choice but to take advantage of a security lapse.
If the agency is indeed made to pay $1.8 billion for not preventing the first (1993) bombing, as suggested by this week’s jury verdict (Oct. 27), it could be forced “to reduce drastically its spending on the region’s airports, bridges and tunnels,” its leaders say. Hmmm… since security measures are among the big items in the current budget, might that not have menacing implications for future anti-terrorist preparedness all by itself? And Mark Geistfeld, a law prof at NYU, agrees that “It’s really hard to get your mind around” the jury’s finding that the terrorists themselves were only 32 percent responsible for the outrage, with the agency responsible for 68 percent. (Anemona Hartocollis and Patrick McGeehan, “Port Authority Fears Costs From Verdict”, New York Times, Oct. 28). More: the Times has a fascinating article about winning plaintiff’s lawyer David J. Dean, who bounced back from disbarment (Oct. 30). Yet more: David Bernstein, Orin Kerr and commenters. And the Washington Examiner blasts the verdict in an editorial that kindly quotes me (“Blame the terrorists, not their victims”, Oct. 31).