As we have seen in earlier coverage, automakers will get sued over some kinds of accident if they decide to use laminated glass, and sued over others if they decide to use nonlaminated glass. Now Ted at Point of Law has details of another case, this one against Ford, in which the South Carolina Supreme Court held that NHTSA regulations resolved the issue at hand and should not be second-guessed by tort litigation. Unfortunately, as Ted notes, the trial bar and its allies in the Obama administration are doing their best to weaken the preemption defense, which would open up maximum scope for sued-if-you-do, sued-if-you-don’t litigation of this sort.
Robert Kahn, Courthouse News on a Maryland case: “A family demands $10 million from Honda, claiming a side window shattered and injured them when a tornado picked up their Honda Odyssey. …They say Honda should use laminated glass, as it does for windshields,” instead of tempered glass. For why the choice between laminated and conventional glass in side windows exposes automakers to a choice between one type of lawsuit and another, see our May 13, 2005 post. The plaintiff husband is also suing his wife, who was driving the vehicle. More: Fark.
Welcome to Blawg Review #220, rounding up some highlights of the past week from around the legal blogosphere. It’s my second time hosting it here at Overlawyered, a blog that as its name implies maintains a certain critical distance from many of the doings of the legal profession. Despite (or because of?) that, lawyers make up a large share of our most loyal and valued readers. Overlawyered just celebrated its tenth anniversary, which so far as I know (though someone may come along to prove me wrong) makes it the oldest blog about law.
In addition to being a blogger, I’m an author of books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) as well as many articles and shorter pieces, and a senior fellow at the Manhattan Institute, the think tank in New York City. Joining me in occasional posts is American Enterprise Institute resident fellow Ted Frank (who’s just launched a promising new venture called the Center for Class Action Fairness; his objection in a Bluetooth class action settlement won coverage in the NLJ on Friday) and even more occasionally by David Nieporent. Ted contributes a portion of this Blawg Review which is indented below.
Torts, Liability and Trial Practice
The week’s most widely blogged story, well documented by Above the Law, is a South Florida lawyer’s “Motion to Compel Defense Counsel To Wear Appropriate Shoes” at a personal injury trial, from fear that his opponent would employ a certain pair of hole-worn loafers to practice the arts of aw-shucksery on the jury. A mistrial resulted after press coverage of the motion came to the attention of jurors.
In other news, the Wall Street Journal law blog reported on the New York Yankees’ settlement with a fan who sued over not being allowed to get up and move about during the performance of “God Bless America”. Kevin Underhill at Lowering the Bar has the story of a Pomona juror who was really eager for deliberations to finish up so he could attend the Michael Jackson memorial, and wonders if the case was resolved unusually speedily that day.
On the plaintiff’s side, Steve Gursten of Michigan Auto Lawyers charges that the city of Detroit discourages the issuance of traffic tickets to its bus drivers as one way of dodging liability in subsequent accident cases where the driver’s record of violations could be used against the city. John Hochfelder at New York Injury Cases Blog says a lawsuit against the city subway system on behalf of a grossly drunk patron who tried to board between train cars is the sort of action that brings litigation into public disapprobation and might even fuel interest in relatively far-reaching reforms, like loser-pays. And Tennessee’s John Day catches a noteworthy automotive preemption case: “The Supreme Court of Appeals of West Virginia has ruled that a products liability claim was preempted by FMVSS 205, a safety standard that it says permits vehicle manufacturers to make a choice between tempered glass and laminated glass in side windows. … The United States Court of Appeals for the Fifth Circuit reached the opposite result in O’Hara v. General Motors Corp., 508 F.3d 753 (5th Cir. 2007).”
At Citizen Media Law, Andrew Moshirnia reports on a defamation lawsuit filed by a northern Illinois newspaper against a blogger: “That’s right, a newspaper (the Jeffersonian protectors of democracy) and a blogger (saving the world one lolcat at a time) are duking it out, each trying to out chill the other’s speech.”
The defense-side post of the week comes from the Beck & Herrmann team at Drug & Device Law. Mark Herrmann takes a big-picture look at how pharmaceutical product liability law has evolved over the past quarter century, and in particular how well it has done in pursuing the goal of appropriately screening out meritless cases. He gives the law a grade of “A” or thereabouts in tackling dubious expert testimony (with the Daubert revolution), in preventing the unwarranted extension of class action concepts from financial-injury cases to the realm of personal injury, and — a much newer development — in introducing serious scrutiny of claims at the pleading stage through the Supreme Court’s recent Twombly and Iqbal decisions. He is also relatively pleased with trends on preemption (despite the widespread view that defendants have suffered a decisive rebuke on that front) and on resistance to novel theories of action. On the other hand, he gives the courts a “D” on their handling of discovery and its burdens, and a grade of “F” when it comes to their overall inability to reduce the amount of litigation.
Emergency room doc/blogger White Coat has been serializing a first-person account of his malpractice trial; you can read parts eleven and twelve, bearing in mind that you’re coming in partway through the story. (The trial has concluded, but he’s not yet revealing how it ended.)
Stephanie West Allen at Idealawg, picking up on a discussion in Plaintiff magazine, says to watch out for how the other side is likely to retell your story: that way you won’t be surprised when the other side’s lawyer gets up at trial to claim the wolf was framed while portraying the scarlet-clad Miss Hood as the most heartless femme fatale since Barbara Stanwyck in Double Indemnity. And if you’re headed for alternative dispute resolution, Nancy Hudgins can tell you “A secret about mediators“.
In the News
Alas, in today’s wounded economy bankruptcy law is a standout practice area. In the case of General Motors, however, the process has gone far more quickly than most expected. John Wallbillich at Wired GC reflects on the giant automaker’s egg-timer reorganization: “The joke around Detroit is that GM went through bankruptcy in less time than it took outsiders pre-filing to get a response to voicemails and schedule a meeting.” On the consumer side, BankruptcyProf Blog (via Carolyn Elefant, Legal Blog Watch) reports that bankruptcy filings in the Central District of California have risen sharply over the year, up more than fifty percent from 5,999 in January to 9,578 in June. The year-over-year increase since the first half of 2008 is 45 percent.
Disgraced lawyer Marc Dreier is due to be sentenced this week for some of the worst defalcations laid to the account of an American lawyer in many a year; Peter Henning has commentary at the WSJ Law Blog. At a newly launched blog called Unsilent Partners, two well-known figures in the blogosphere, Colin Samuels of Infamy and Praise and Mike Semple Pigott of Charon QC, discuss recent white-collar criminal sentencing, the point of departure being federal judge Denny Chin’s sentencing of Bernard Madoff to a 150-year term.
The week’s biggest upcoming legal story is likely to be the confirmation hearing of Supreme Court nominee Sonia Sotomayor, and I’ll turn the floor over to colleague Ted Frank for some remarks on that:
The Sotomayor nomination continued to be a notable topic in the legal blogosphere this week. Jennifer Rubin noted that former Secretary of State Colin Powell, sharing Judge Sotomayor’s position favoring race-based preferences, had thrown his support behind her nomination. Meanwhile, Eric Turkewitz’s previous investigation of the judge’s “Sotomayor and Associates” law practice and the ethical implications of her choice of firm name was picked up by the New York Times, albeit (as he and Scott Greenfield both noted) without any recognition of Turkewitz’ key role in bringing this issue to light. Greenfield criticized the Times: “make no mistake about it. [Turkewitz] is the source of the New York Times story, and the absence of his name, and his blawg, in the piece is a shoddy reflection of its journalistic integrity. Don’t ask the blawgosphere to love you when you won’t love us back, boys.” But Windy Pundit defended the Times. Turkewitz found the Administration’s explanations and justifications of Sotomayor’s choice to be unpersuasive; some members of the Senate Judiciary Committee may as well, and they’ve been in contact with Turkewitz. Beldar’s reaction to the Associates flap: Meh. The WSJ Law Blog looks at the “meticulousness” characterization of Sotomayor. Stuart Taylor has a must-read blog post on how the Sotomayor panel almost succeeded in burying the Ricci case through its summary order; having failed to bury the case, Sotomayor’s supporters are making personal attacks on Ricci, who will be testifying at Sotomayor’s hearing, himself. Heather Mac Donald calls for tough questioning of Sotomayor about Ricci. If you plan on attending the hearing, watch what you wear. The Federalist Society is sponsoring an on-line debate on the nomination that includes lawyer-bloggers Tom Goldstein and Ed Whelan. And Jonathan Adler asks questions about that 1100-professor-petition in favor of Sotomayor’s nomination.
Allegations of egregious racial discrimination at the swimming pool of a northeast Philadelphia club are making news and seem likely to break out before long as a national story. Max Kennerly of The Beasley Firm tells the story and analyzes its legal implications here and here, while Jon Hyman recalls memories of growing up near the club.
Finally, the Scruggs judicial scandals may have faded from the national headlines in the past year but in Mississippi they’re still very much an unfolding story. Tom Freeland at North Mississippi Commentor continues to track developments.
Advice for clients
Week in and week out, one of the functions legal blogs fulfill is to advise clients and prospective clients on when to use lawyers and what to expect when using them. Thus Hingham-based Danielle Van Ess explains what estate planning does and who needs it at her blog on Massachusetts wills, trusts and estates law. At South Carolina Family Law, Ben Stevens offers a list of Facebook “don’ts” for divorcing couples, which might usefully be read in conjunction with Lawyerist’s advice on how to subpoena Facebook pages. Of course cutting through the hype is important, which is why potential clients susceptible to being impressed by “Super-Duper-Lawyer” awards and commendations might want to check out Brian Tannebaum’s amusing discovery that “in Gainesville, Florida, apparently two Super criminal defense lawyers are prosecutors”. Whoops!
Perhaps the week’s most buzzed-about employment law case came from Hartford where veteran political reporter Shelly Sindland filed a sex and age bias complaint against Tribune Co.’s Fox 61, charging that execs at the TV station rewarded female on-air talent on the basis of bodily attractiveness rather than conventional journalistic criteria. Daniel Schwartz at his Connecticut employment law blog took a relatively sober look (and followup), but given its mature content this was a story destined to wind up at Above the Law, which gave it the full treatment.
Employees’ sometimes-imprudent talk both on the job and off continues to provide steady fodder for employment law decisions and controversies. Doug Cornelius discussed a New Jersey decision on whether and when an employer can read an employee’s email to her lawyer sent from a company-owned laptop. At Employee Rights Post, Ellen Simon discussed a recent Ninth Circuit case in which a school employee got in trouble for inflammatory online remarks. And Jon Hyman at Ohio Employer’s Law wonders how employers are supposed to avoid what has been called a “sexualized work environment” offensive to some employees when the popular culture seeping in to the workplace from all sides is often itself highly sexualized, a topic that has come up in these columns as well.
Commercial, business and tax law
Unincorporated Business Law Blog brings word of a bill being introduced by Sen. Carl Levin (D-Mich.) to crack down on state-incorporated “shell” corporations. Corporate law specialist Larry Ribstein of the University of Illinois writes, “The motivation for this piece of legislative detritus seems to be that since a tiny percentage of LLCs are being used for criminal activity let’s wreck LLCs for all firms. Hey, sounds sensible to me.”
In other news, Peter Pappas awarded his “Rick Moranis Awards” for the best tax nerd blogs. Kevin LaCroix at D & O Diary has an update on the rising tide of Foreign Corrupt Practices Act (FCPA) enforcement activity. Charon QC conveys a bit of gossip about the questionable contract terms prescribed by a well-known U.K.-based real estate firm. And Ken Adams at Adams Drafting advises that if contract-drafting seems like a boring and unrewarding part of your work day, you’re probably not doing it right.
Finally, this unsettling observation from Dan Harris at China Law Blog: “If you owe money to a Chinese company for product and you cannot pay all of your creditors, skip out on the Chinese company. Near as I can tell, there is nearly a 100% chance they will never sue you to recover.”
Intellectual property law
The Pope issued an encyclical earlier this month which, notes Cal Law Legal Pad, included the following statement: “On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.” If the pontiff wasn’t upset by the story of the Mexican yellow bean patent recounted by Patently-O, it’s probably because he hadn’t heard of it. Speaking of moral authority, The Prior Art takes GOOD magazine to task for according a glowing profile to a systematic asserter of patent license rights whom some might belittle as Totally Reliant On Litigation Leverage, and suggests the magazine missed a chance to evaluate the gap between what might be remunerative legal-business strategy and what is beneficial to society. For a more upbeat view of the value of patents in spurring innovation since colonial days, Gary Odom at Patent Hawk offers a short history of patents in America.
Finally, I blogged last week about the lawsuit filed by Pez against a Pez museum that some fans had set up in California’s San Mateo County, but Ron Coleman at Likelihood of Confusion was funnier about it.
Legal issues of new media
Remember the unsuccessful suits by companies upset to discover that when Google users searched on their firm’s name, AdWords would serve them an ad for some competitor? Ryan Gile at Vegas Trademark Attorney thinks Mary Kay Cosmetics faces an “uphill battle” in a new suit against Yahoo (over mouseover search popups in email) that raises some similar issues. And Venkat Balasubramani raises the question whether Twitter has been lax, or clever, or both, in letting various other entities use Twitter-related words and phrases in their own names and promotions.
At gamelaw blog Law of the Level, Shawn Foust discussed how online games can protect the integrity of their online currencies from thefts, at least until a corps of “Space Prosecutors” can be formed. And Eugene Volokh brings news from Michigan of one of the first, if not the first, libel lawsuits arising from Wikipedia edits. It seems to raise garden-variety rather than novel issues, though, and is not filed against Wikipedia itself.
In the U.K., Justice Minister Jack Straw has announced a second round of family-court reforms. Lucy Reed at Pink Tape is anything but enthusiastic about some of the “de-lawyerizing” aspects of the proposals. John Bolch at Family Lore comments as well, and separately notes “that Conservative think tank the Centre for Social Justice will recommend that there be a compulsory three-month ‘cooling off’ period before divorce proceedings can be commenced, one of a number of proposals contained in a report Every Family Matters, to be published [July 13].” Presumably coincidentally, here in the U.S., Solangel Maldonado at Concurring Opinions considers whether current divorce laws unduly steer couples toward ending marriages rather than working through difficulties: “Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? … many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.”
“Father Shall Not Use Profanity or Racial Epithets in the Boys’ Presence or Within Their Earshot”. Eugene Volokh wonders about the free speech implications.
It being July, law schools are relatively quiet on the student front, but certainly not on the faculty front. Hackles have been rising over the NYU law school’s selection of Li-Ann Thio for a visiting spot in human rights law, given that in her native Singapore Thio crusaded against rights for gays. [Above the Law]. Jane Genova at Law and More covers a judge’s threatened sanctions against Harvard lawprof Charles Nesson for posting deposition excerpts online from a case in progress in which he is helping defend music downloaders. And although Ave Maria Law School is not a part of the Roman Catholic Church, it is asserting church autonomy as a defense to a suit filed by several former faculty members; Howard Wasserman at Prawfsblawg and Rick Garnett at Mirror of Justice discuss.
Many would have nominated law schools as a nearly recession-proof sector of the economy, but that’s turned out to be wrong, what with bleak prospects for many new graduates and sometimes plunging endowments at parent institutions. Famed UCLA lawprof Stephen Bainbridge asks “Is Law a Mature Industry?” and examines the implications for legal education (do we really need at least ten new law schools, as are on the drawing board now?), while the Canadian site Law21.ca wonders whether the demographics of an aging world mean that we can “say goodbye to a lot of law schools“.
State of the blawgosphere
There’s nothing like a discussion of the state of blogs to get people going. At Crime and Federalism, Mike Cernovich thinks legal blogs have gone downhill since he got online: things have grown cliquish, and the “biggest – and worst – change to the legal blogosphere has been the Rise of the Marketers,” the ones who are intent on promoting their firms and practices but don’t have anything in particular to say. If bloggers get cliquish, notes Robert Ambrogi, it’s only human nature: “With too many blogs to choose from, we tend to stick with those we know and find comfort with.”
Have you ever considered turning the best bits of your blog into a book? Join the club. Evan Schaeffer at Legal Underground shows how to make a convincing case for that kind of transformation.
Finally, if you’re looking for an old-fashioned blogger dustup complete with asperity and risk of hurt feelings, Scott Greenfield is feeling snappish toward Adrian Dayton and several others on a variety of topics that include Generation Y, social media and work/life balance (Greenfield’s basically against the latter: “When the going gets tough, no one needs a lawyer who leaves the office whenever they have something more fun to do.”) Diane Levin suggests room for accommodation, which however is not forthcoming.
Need a break from contentiousness? Check out Scott Kreppein’s pictures of the Bronx County courthouse, a building that boasts marmoreal, heroic bas-relief sculptures in what I believe is the early-FDR-period style referred to as “Greco-Deco“.
For a view of American law from Central and Eastern Europe, Bruce MacEwen at Adam Smith Esq. interviews Tomasz Wardynski of a large Warsaw law firm. At Arbitration Forum, Kenneth Cloke tells “Why We Need to Mediate [International] Environmental Conflicts“. Cynthia Alkon at ADR Prof brings word that the Truth and Reconciliation Commission (TRC) in the African nation of Liberia released its report this week. Chris Borgen at Opinio Juris reports on the possible disintegration of Belgium (Flanders is thinking of pulling out). Is the EU actually going to hasten the breakup of some of its ethnically diverse member states? Charon QC decides to find out how easy it is to pry information out of private British law schools. And proving that the U.S. is not always in the forefront of colorful litigation, a Polish mother has sued saying that her 13-year-old daughter came back pregnant from an Egyptian resort because of, er, male-related contamination of the hotel’s swimming pool. Michael Krauss has the story at the Manhattan Institute law blog Point of Law (disclosure: I’m its editor and also blog there).
Many thanks to Colin Samuels and Victoria Pynchon for their helpful suggestions on links to use. H. Scott Leviant will be hosting Blawg Review #221 at The Complex Litigator next week. Blawg Review has information about that, and instructions how to get your blawg posts reviewed in upcoming issues. [Edited 1 pm Monday to remove one link at the request of its site]
- More fen-phen scandals: Possible smoking-gun email in Kentucky case (see Walter’s post today) came from Chesley firm computer; Vicksburg lawyer first attorney convicted in Mississippi fen-phen scam. [Courier-Journal via Lattman; Clarion-Ledger (h/t S.B.)] (Updated with correct Courier-Journal link.)
- Allegheny College found not liable by jury for student’s suicide; school raised issue of student privacy concerns. Earlier on OL: May 30; Dec. 7, 2004. [WSJ]
- Update on the tempered glass versus laminated issue earlier discussed in Overlawyered (Feb. 15, 2006; May 16, 2005; May 13, 2005, etc.) [LA Times]
- Massachusetts court rejects quack sudden acceleration theory. (See also Dec. 20, Aug. 7, etc.) [Prince]
- California bill would bar carpenters from school campuses. [Overcriminalized]
- New book: Antitrust Consent Decrees in Theory and Practice [Richard Epstein @ AEI]
- To be fair, I went to school with “young Mr Sussman, the boyish charmer”, and I don’t know how to pronounce “calumnies” either—it’s one of those words I’ve only seen written, and never heard spoken [Steyn; MSNBC]
The verdict that Ted reported on Dec. 1 is stirring unease through the bus industry. Lawyers convinced a Texas jury that a tour bus was defectively designed because it did not come equipped with seat belts and laminated side window glass, even though neither are common in American tour bus design or mandated by the federal National Highway Traffic Safety Administration. (Steve McGonigle, Dallas Morning News, Feb. 12). For more on the laminated glass issue, see May 16, 2005 and links from there.
Belatedly following up on the Mar. 7 report about the $31 million verdict against Ford Motor in Zavala County, Tex., on attorney Mikal Watts’s theory (as we put it then) “that the [ejection] injuries were Ford’s fault because it should have used laminated instead of conventional glass in the side windows as a sort of substitute restraint system,” law student Shane Murphy (George Mason U.) had the following comment:
Laminated glass, which is two layers of plate glass with plastic laminate in between, is used on automotive windshields. It has been used for decades to keep objects from easily getting through the windshield and entering the vehicle, not the other way around. In fact, I have seen more than one hapless unbelted occupant of a vehicle propelled fully through a laminated windshield.
Safety glass, which is designed to shatter into very small pieces, is used on side windows in cars. This type of glass is easy to shatter should you need to make a hasty exit from the vehicle, and that’s a key reason it’s put there. It also shatters into small pieces with very little “sharding,” reducing the opportunity for serious injury from broken glass.
Laminated glass requires a special saw to get through. With 12 years of experience, it still takes me five minutes to saw through a car windshield. If your car is on fire you’d prefer safety glass for this reason alone. Laminated glass also causes serious head and facial injuries to those who do full face-plants against the windshield despite seat belt warnings. It will have the same effect in a side window if an occupant is unbelted.
Some automakers are putting laminated glass in the side windows of high-end cars, but this trend should be viewed with great caution. This type of glass does prevent people from “popping a window” to escape from a vehicle in an emergency situation. Two examples of emergencies of this type are vehicle crashes with resulting fires and accidents where a vehicle ends up partially submerged in a body of water. In both cases, the electrical system will likely short out and will prevent easy exit since nearly all cars now have power windows.
I really cannot believe this theory about auto glass even got past the laugh test, never mind into the jury room. Automotive glass should not be used to keep people in the vehicle. Using automotive glass as a backup safety feature would do more harm than good. Seat belts are to keep you in the vehicle, not windows. In fact, I much prefer glass that breaks easily.
More: reader Brian Poldrack of Houston, Texas writes in to say:
The famously pro-plaintiff jurisdiction of Zavala County, Texas once again lived up to its reputation the other day when one of its juries returned a $31 million verdict against the Ford Motor Co. in the case of the rollover of a 2000 Explorer which killed two occupants and injured two others. Legal commentators around the web are abuzz about the most remarkable angle of the story, namely that until deep into the trial Ford did not learn that one of the jurors, Crystal City city manager Diana Palacios, was the girlfriend of Jesse Gamez, one of the lawyers on the team of plaintiff’s attorneys headed by Houston’s Mikal Watts. Ford also presented evidence that Palacios, incredibly, had actually solicited two of the crash victims for her boyfriend to represent. Nonetheless, Judge Amado Abascal refused to declare a mistrial, instead dismissing Palacios from the jury and issuing a supposedly curative instruction to the remaining jurors. David Bernstein, Tom Kirkendall and John Steele comment. (John MacCormack, “Juror’s relationship with lawyer stalls Ford trial”, San Antonio Express-News, Feb. 23). (Addendum: one of John Steele’s readers has drawn his attention to this 1997 Texas Supreme Court opinion which co-stars the very same Mr. Gamez and Ms. Palacios in a Norplant case — very curious stuff.)
The other issues raised by the verdict, however, deserve attention as well. The accident was caused by the speeding of the vehicle’s driver, and none of the four occupants was wearing a seat belt; all were ejected. Attorney Watts (Apr. 12-14, 2002) advanced the theory that the injuries were Ford’s fault because it should have used laminated instead of conventional glass in the side windows as a sort of substitute restraint system. (John MacCormack, “Zavala jurors hit Ford for $28 million”, San Antonio Express-News, Mar. 2). Notes the Detroit News:
Ford said laminated glass wouldn’t have kept the women from being ejected and was hardly ever used in side windows when the vehicle was made.
“At that time, 99.9 percent of all vehicles made by all manufacturers, through the 2000 model year, had the kind of tempered glass used in this vehicle,” Vokes said. The National Highway Traffic Safety Administration doesn’t require laminated glass in side windows, she said.
(“Explorer suit costs Ford $31 million”, Detroit News, Mar. 3) AutoBlog has a short write-up with a good comments section; note in particular comment #22, on one possible safety advantage of not using laminated glass on cars’ sides. More: Mar. 22, May 13, May 16, May 29.