Archive for September, 2003

Class action roundup: tires, Western Union, jam

At the new multi-author blog Marginal Revolution, Alex Tabarrok writes that he’s angry: “The lawyers will get $19 million, the plaintiffs have no damages and I have been involved in an abuse of justice. I received notice yesterday that I was a plaintiff in a class action lawsuit against Bridgestone/Firestone that is about to be settled. I was never injured by Firestone but that’s ok because injured people have their own lawsuit the one I am involved in is for people who were not injured. The lawsuit reads ‘Plaintiff Does Not Seek To Represent And This Litigation Does Not Involve Any Person Who Alleges That He or She Suffered Any Personal Injury or Property Damage Because Of A Failure Of One Of The Tires’ (capitalization in original.) Bear in mind that Firestone has already replaced all four of my tires with a competitor’s brand for free and similarly for many of the other plaintiffs.” (Sept. 16) Co-blogger Tyler Cowen at the same site isn’t any happier to discover that he is a member of the class in a suit against Western Union over its wire-funds-abroad service charging that, according to the legalese, “…the Defendants [made] misrepresentations about or otherwise failing to disclose to customers the fact that they received a more favorable exchange rate for converting U.S. dollars to foreign currency and foreign currency to U.S. dollars than they provided to their customers.” “Imagine that” — writes Cowen — “a middleman buying and selling at different prices!” (Sept. 17). (More: see KrazyKiwi, Oct. 8).

Meanwhile, a Wisconsin man has filed an intended class action lawsuit against jam maker J.M. Smucker after the Washington-based anti-business group Center for Science in the Public Interest published a report claiming that Smucker’s “Simply 100 Percent Fruit” products were falsely labeled because only a minority of the actual contents of a jar of strawberry or blueberry “Spreadable Fruit” consisted of those berries, the remainder consisting (as Smucker’s labeling makes clear) of syrups, concentrates and extracts derived from other fruits such as apple, grape, lemon and pineapple. (“Smucker’s Spreads Not All Fruit, Lawsuit Says”, AP/FoxNews, Sept. 5 — if you’re looking for a deceptive claim, how about the one conveyed by that headline?). The food-industry-defense Center for Consumer Freedom levels an interesting accusation against CSPI, namely that bounty-hunting lawyers suing under California’s Proposition 65 law seemed to have mysterious psychic powers to divine in advance exactly what was going to be in a CSPI report on supposed killer french fries — either that, or CSPI shared the information with them before it went public with its allegations. See “We, the jury, find the defendant ‘starchy'”, CCF, Jul. 17 (third from last paragraph); “CSPI: 100 Percent Litigious”, CCF, Sept. 8; “Latest Acrylamide Panic Based on Fudged Numbers” (press release), CCF, Jul. 10. For more on the French fry suit, see Dec. 27-29, 2002.

“N.C. Senate approves medical malpractice bill”

Interesting medical malpractice reform bill passed in the North Carolina Senate just before Hurricane Isabel (which is about to take out my power now) hit –supported by Democrats and opposed by Republicans. “Pretrial reviews in malpractice cases would come from a three-member panel appointed by a judge but with input from lawyers in the case. Panel recommendations would be entered into evidence, and a plaintiff or defendant who took a case to court despite a negative recommendation and still lost would have to pay attorney fees to the opposing side.” Insurers and Republicans seem to be unhappy with the creation of a state insurance fund, increased reporting requirements for insurers, and the lack of a damages cap. (Scott Mooneyham, AP, Sep. 16; “AIA: NC. Senate Med-Mal Bill Lacking”, Insurance Journal, Sep. 18). “A special House committee will consider the medical liability issues, but the full House will not act on any measure before May.” (Matthew Eisley, “Malpractice changes offered”, The News & Observer, Sep. 17). Game theory scholars will be interested to note that the bill requires juries who find negligence to choose between a plaintiff’s proposed damages figure and a defendant’s proposed damages figure–what is sometimes called “baseball arbitration.” This effectively constrains rational trial attorneys to perform a balancing act and make reasonable requests–the higher the demand (or the lower the counter), the more reluctant a jury to go along. This alone should encourage settlements by narrowing the difference between parties. In conjunction with what will likely be a persuasive pre-trial panel expert report, it is hard to imagine circumstances when attorneys would ever let a case get to a jury verdict.

New batch of reader letters (and new letters format)

We’ve now launched a new letters page for Overlawyered.com based on a weblog format. We hope this will enable us to be more diligent in posting readers’ letters. We’ve started off with four letters, on the following topics: David Giacalone disagrees with Gene Healy on the fairness of using “imputed income” in computing child support obligations; Gulf War Syndrome and who, if anyone, should pay for it; how to succeed as a student with a little help from a disability designation; and why the liability crisis is now reaching NYC midwives.

Oh, that medical privacy

Police have arrested 42-year-old Juvenal Caballero Guerrero, formerly a patient-care assistant at Houston’s Memorial Hermann Hospital, on charges of “selling about 12 pages of patient information for $500 to a representative of Industrial Safety Consultants, a company that advertises ‘investigations regarding accidents and injuries’ from its Houston offices. According to court documents, investigators were told the company has sold stolen patient records to personal-injury lawyers. … Prosecutors said the arrests won’t stop with Guerrero…’There are lots of other people involved,'” Harris County prosecutor Lester Blizzard told the Houston Chronicle, including employees of other health institutions. Lawyers might also face charges if they can be proved to have directly solicited business from accident victims. (“Former Houston hospital worker arrested”, AP/Fort Worth Star-Telegram, Aug. 28; “Hospital Employee Charged With Theft, Sale of Patient Information”, BNA Health Law Reporter, undated Sept.; Annie Blanco, “Hospital worker arrested for medical record theft”, News 24 Houston, Aug. 28)(via SickOfLawsuits.org)

Imputed income? Hand it over.

Gene Healy on discovering the topic of family law: “Here was an interesting area of law; and by interesting, I mean insane. … what really woke me up was the concept of ‘imputed income’ for alimony and child support. That means, not your actual income, but what you could make if you were really giving it your all and living up to your potential.” Thus in a Virginia case, a divorced man subject to heavy support obligations knowingly switched to a lower-pressure, lower-paying job. “Tough, said the judge. You’re liable for what you could make, not what you actually make. And that’s the law. Guys, if you want that wonderful pulse-racing, chest-tightening feeling you get from the kind of bad dreams where you show up late for an exam you didn’t know you were scheduled for — then click this link to a California divorce lawyer’s page.” (“The Marriage Strike”, AFF Brainwash, Aug. 31)(& letter to the editor, Sept. 18).

Monsanto vs. free speech

The giant chemical and agribusiness company is suing the Oakhurst Dairy in Maine “for promoting its products as containing milk from cows who are not treated with artificial growth hormones. Monsanto, which makes the leading artificial hormone for cows, said the marketing implies that there’s something wrong with milk from treated cows, even though studies show the milk is no different than milk from untreated cows.” (Edward D. Murphy, “On the front lines of free speech”, Portland Press Herald, Aug. 31; Kristen Philipkosky, “Sour Grapes over Milk Labeling”, Wired News, Sept. 16). As the Press-Herald’s Murphy suggests, this kind of suit can work very similarly to one like Nike v. Kasky in chilling controversial business speech, the difference being that in this case one business is doing it to another.

“Ten things your lawyer won’t tell you”

You may be shocked to find how little you’ll net from the proceeds of your lawsuit, how little experience your lawyer has, or how hard it is to proceed against him later if you think he has wronged you. Where are the consumer protectionists demanding advance disclosure? (Brigid McMenamin, Smart Money, Sept. 15)(for more on these issues, don’t miss EthicalEsq?’s “Informing Consumers” section)(its comments on this post).

“Man who claimed he fell down pothole must pay back ?238,000”

“Gary Prentice, 45, a former forklift truck driver, looks certain to lose the executive home, worth an estimated ?200,000, that he bought with the pay-out. … [As] news spread of the payment five years after the accident, neighbours began to question Mr Prentice’s version. They said he had not broken his ankle on a grassed area maintained by East Cambridgeshire district council but had done it while playing with his stepson.” Moral: watch out for those pesky neighbors (David Sapsted, Daily Telegraph, Sept. 11). “Speaking in Los Angeles on Monday, Lord Levene, Lloyd’s chairman, attacked America’s compensation culture as ‘pernicious, cancerous and ruinous’ and added that Britain was ‘falling into the same abyss’.” (“A litigious nation” (editorial), Daily Telegraph, Sept. 17).

“Man who claimed he fell down pothole must pay back ?238,000”

“Gary Prentice, 45, a former forklift truck driver, looks certain to lose the executive home, worth an estimated ?200,000, that he bought with the pay-out. … [As] news spread of the payment five years after the accident, neighbours began to question Mr Prentice’s version. They said he had not broken his ankle on a grassed area maintained by East Cambridgeshire district council but had done it while playing with his stepson.” Moral: watch out for those pesky neighbors (David Sapsted, Daily Telegraph, Sept. 11). “Speaking in Los Angeles on Monday, Lord Levene, Lloyd’s chairman, attacked America’s compensation culture as ‘pernicious, cancerous and ruinous’ and added that Britain was ‘falling into the same abyss’.” (“A litigious nation” (editorial), Daily Telegraph, Sept. 17).

“Man who claimed he fell down pothole must pay back ?238,000”

“Gary Prentice, 45, a former forklift truck driver, looks certain to lose the executive home, worth an estimated ?200,000, that he bought with the pay-out. … [As] news spread of the payment five years after the accident, neighbours began to question Mr Prentice’s version. They said he had not broken his ankle on a grassed area maintained by East Cambridgeshire district council but had done it while playing with his stepson.” Moral: watch out for those pesky neighbors (David Sapsted, Daily Telegraph, Sept. 11). “Speaking in Los Angeles on Monday, Lord Levene, Lloyd’s chairman, attacked America’s compensation culture as ‘pernicious, cancerous and ruinous’ and added that Britain was ‘falling into the same abyss’.” (“A litigious nation” (editorial), Daily Telegraph, Sept. 17).