Confirming the hopes of supporters of Texas’s Proposition 12 (see Sept. 4, Sept. 6, Sept. 14), various companies that write medical malpractice insurance have moved quickly to cut the rates they charge doctors. “Texas Medical Liability Trust, which insures more than 3,000 Houston-area doctors, will cut rates by 12 percent, effective Jan. 1. … Dr. Charles W. Bailey Jr., president of the Texas Medical Association, says he expected insurers to reduce rates after the proposition passed, but didn’t think it would happen so quickly. Outside insurers could be returning to write policies in Texas again in the near future, Bailey predicts.” (Allison Wollam, “Medical insurance rates roll back”, Houston Business Journal, Oct. 6). During the Prop 12 campaign, the editorialists of the Fort Worth Star-Telegram, who opposed the measure, deemed “debatable” the proposition that the damage limitations at issue “will bring down, or at least stabilize, insurance rates” (“Keeping courts open”, Aug. 24).
Archive for October, 2003
Being beastly to bulldozers
Caterpillar Inc., the maker of earthmoving machinery, has sued Disney and Buena Vista Pictures in federal court “hoping to block the Oct. 21 release of the direct-to-DVD movie ‘George of the Jungle 2.'” The movie’s plot, evidently a marvel of originality, pits a hero and his animal sidekicks against evil “industrialists seeking to ravage and destroy the jungle”. As the Peoria paper reports, it seems “the final battle pits George and the animals against an army of Caterpillar Wheel Loaders. It didn’t help, the suit goes on to state, that the movie’s narrator calls the machines ‘maniacal’, ‘deleterious dozers’ and “bulldozing bullies.” How better to dispel an image of bullyhood than by heading to court to demand that speech critical of one’s enterprise be silenced? (Andy Kravetz, “Cat doesn’t dig ‘bulldozing bullies'”, Peoria Journal-Star, Oct. 15; “George of the Jungle, Watch Out for That Lawsuit!”, Reuters/Washington Post, Oct. 15) More: Eugene Volokh comments (Oct. 17).
Auto insurance won’t cover rape
Updating our story of Mar. 27-28, 2002: the Colorado Supreme Court by a 4-3 margin has reversed lower court decisions that ordered State Farm to pay auto insurance benefits to a woman who was kidnapped and raped in her car. (Sean Kelly, Denver Post, Oct. 15). Plus: Curmudgeonly Clerk has more (Oct. 18).
Dark highlights, courtesy Oz legal aid
Australia: “An application by Victorian triple murderer Paul Denyer to wear women’s make-up in prison was helped by taxpayer-funded Legal Aid, the state government said today. The 120kg killer, branded one of the most dangerous criminals in Victoria … lodged an appeal with the Victorian Civil and Administrative Tribunal (VCAT) after his complaint of gender identity discrimination was rejected by the Equal Opportunity Commission (EOC) in August.” (“Legal Aid helped make-up bid”, AAP/Melbourne Age, Oct. 15). See update Jan. 10.
“Man Ordered to Speak English to Daughter”
Nebraska: “A Hispanic man who spoke to his 5-year-old daughter in Spanish has been ordered to use primarily English around the girl as a condition of his visitation rights.” Ruling on a request by the mother, a Sarpy County judge decreed that Eloy Amador should “primarily” use English when conversing with his daughter, although it was all right to switch to Spanish for purposes of instructing her in the use of that language. (Jean Ortiz, AP/Las Vegas Sun, Oct. 14). More: Jim Boulet at NR Corner comments on the ruling and provides this link to a very curious 1995 court decision from Amarillo, Tex. in which a “judge overseeing a child-custody case told a Mexican native that speaking only Spanish at home constituted abuse of her 5-year old daughter. ”
Martha Stewart defended
Softening his former view of the Martha Stewart affair, Stephen Bainbridge suggests that the government may be overreaching in prosecuting Stewart for publicly denying a charge of insider trading when it does not see fit to charge her with insider trading itself (Oct. 7; Oct. 8; Oct. 9; Oct. 10; Oct. 14; and follow links from the various entries). See also Reason’s recent cover story with its unnecessarily provocative title and subhead (Michael McMenamin, “St. Martha”, Oct.). Other views: Yin Blog, Oct. 8: Daily Kos, Jun. 5; Chris Byron, “$uper Winter Sale for Martha Stewart”, New York Post/Fox News, Jun. 11. Update Jan. 27 (trial).
Yipes
EthicalEsq?, one of the very short list of weblogs that we recommend to absolutely everyone interested in the law, is suspending publication while its author, David Giacalone, concentrates on health battles. Even if we didn’t find ourselves in agreement with David’s views as expressed on the site (and we nearly always do) we’d admire the way he’s staked out one vital beat, legal ethics, and come through with consistently insightful commentary. Let’s hope David enjoys a speedy return to good health; in the mean time, in less than half a year of publication so far he’s compiled valuable archives on such subjects as class actions, lawyer discipline, and, of course, fees.
Chapman on ADA misconduct case
“You may think it’s prudent to keep anyone prone to substance abuse away from large, shiny objects that go boom. You might laugh out loud at someone who insists that a firing offense may not be taken into account when he asks to be rehired. But you are not a judge on the 9th Circuit Court of Appeals. … the fact that Hernandez’s claim could be upheld by a federal appeals court indicates just how far the ADA went in accommodating people who prefer not to take responsibility for their own actions.” Steve Chapman on the ADA right-to-return-after-misconduct case currently before the Supreme Court (see Oct. 7, Sept. 16-17, 2002) (“Making a drug ‘disability’ an asset”, Chicago Tribune, Oct. 12). Update Dec. 13: Supreme Court rules.
Secondhand smoke vs. firsthand contraband
One of the larger costs from the lack of tort reform is not so much the damages awards to undeserving plaintiffs or the fees that plaintiffs’ lawyers extract or the cost of hiring lawyers to defend, but the social costs imposed when decisions are made to avoid the risk of litigation: playgrounds shut down, bans on cold weather swimming (“Don’t be so wet”, The Economist, Oct. 2 (subscription required)).
The repercussions have been particularly severe in Colorado, where a fear of secondhand smoking suits caused the prison system there, where the vast majority of the 18,000 prisoners incarcerated are smokers, to ban tobacco. The result? An immediate creation of a black market with markups for tobacco far exceeding that for cocaine, and the expected associated violence and corruption that goes along with a widespread black market in prison. Eighteen guards, teachers, and supervisors have been prosecuted in three years, and a prisoner newsletter calls the tobacco contraband law “a retirement assistance program for correctional officers.” (Kirk Mitchell, “Ban turns tobacco into prison prize”, Denver Post, Oct. 13).
Update: two personal-responsibility cases
Updating a case covered on Mar. 28, 2000: a Texas court of appeals earlier this year reversed an award of $43 million (voted as $65 million by the jury, then reduced by the trial judge) against Honda to the survivors of a woman who accidentally rolled her car off a boat ramp into Galveston Bay and at autopsy was found to have .17 alcohol in her bloodstream. Her survivors argued that she was trapped in the sinking car by her seat belt, but the appeals court said they had not shown that any alternative belt design would have been any safer overall. Incidentally, this particular Galveston boozy pier roll-off award is guaranteed to be a different case entirely from the Galveston boozy pier roll-off award discussed in this space Aug. 28, in which the city of Galveston and its pier lessee were supposedly the ones to blame, the verdict came in at $10.5 million, and an appeals court again threw it out (Mary Alice Robbins, “Texas Court Reverses $43M Judgment Against Automaker”, Texas Lawyer, Feb. 19).
In an even more belated update, pool owners in Massachusetts were given a reason to heave a sigh of relief when the plaintiff cited in our Jan. 24, 2000 item, an experienced swimmer of 21 years old, lost his appeal before the state’s highest court in which he had argued that his girlfriend’s grandparents should have warned him not to dive into the shallow end (Pierce, Davis & Perritano, LLP, “Open and Obvious Danger Doctrine Reaffirmed”, Winter 2001; for details of case see also Cathleen F. Crowley, “Court decision could impact pool owners”, Lawrence Eagle Tribune, Jan. 4, 2000).