Publicity continues for the recent report Trial Lawyers Inc., published by the Manhattan Institute’s Center for Legal Policy (with which I’m associated): The Economist (“Gone are the days when law students were expected to absorb lofty sentiments such as the one uttered by Roscoe Pound, a former dean of Harvard’s law school: ‘The professional man does not measure out his service in proportion to reward.’ Now, many law-school professors are highly-paid consultants for litigating lawyers. Even The Roscoe Pound Centre is, the report notes, funded by trial lawyers.” (Sept. 27). In the New York Sun, Ryan Sager (“The guys in white”, Sept. 29) attempts to reconcile the report’s findings with the opinions of Leon Silverman, former chairman of New York law firm Fried, Frank, Harris, Shriver & Jacobson. Silverman regards increased litigation as a “triumph of democracy,” though for all we know he may be a sensible person in other ways. Also see Jennifer G. Hickey, “Washington Diary: Congress Shifts Into High Gear”, Insight, Sept. 29.
Archive for October, 2003
Market-share liability: now prove you’re innocent
Under the theory of market-share liability, dear to the heart of the plaintiff’s bar, consumers who allege that they were injured by a product but cannot identify who made it would get to sue all manufacturers and collect from each in proportion to their share of the market. After early experiments, mostly in the realm of generically equivalent pharmaceuticals, courts have been reluctant to extend the idea any further (see, for example, Apr. 27-29, 2001, on the failure of attempts to assign market-share liability to gun makers). But hope springs eternal, and some New Jersey lawyers are now hoping to get market-share liability accepted in that state in the case of a postal worker banged on the head by the metal door of a bulk letter carrier — she can’t remember which maker’s. “Essentially, we would be shifting the burden from the plaintiff to the defendants,” said attorney Andrew Watson of the law firm representing her. “Any company that could prove its products had nothing to do with the accident obviously wouldn’t have to pay anything. Any company that could not prove its innocence would have to participate in any verdict that was awarded,” he said. Hey, it seems fair to him. (Andrew D. Smith, “Who’s responsible?”, Trenton Times, Sept. 28).
Update: Pets Warehouse case
Longtime readers will remember the saga of Robert Novak, owner of Long Island-based Pets Warehouse, who first sued hobbyists who criticized his business and then went on to sue a lengthy list of online entities that seemed to have lent aid and comfort to his opponents (see Oct. 4-6, May 27, and May 22, 2002 and links from there; letter from Novak to this site, Aug. 10, 2001). This summer, Novak declared bankruptcy and he recently lost the rights to the PetsWarehouse.com domain which was purchased by one of his adversaries and presently serves as a voluminous guide to the status of Novak’s various lawsuits, many of which continue to rage unabated. See also Lisa Napoli, “Freedom of Gurgle in the Fish Tank” (opinion piece), MSNBC, Apr. 4, 2002 (& see update Dec. 28). Further update Oct. 16, 2004: Novak prevails in Alabama case and regains control of domain.
Update: Missouri tobacco fees
The Missouri Supreme Court has refused to entertain a legal challenge to the $111-million fee bonanza awarded to private attorneys who represented the state in its relatively late tagalong lawsuit against the tobacco industry. The St. Louis Post-Dispatch had decried the fee award as a “political gravy train” which “grossly overpays the lawyers involved”, who had plenty of friends in high places in Missouri politics (see our coverage of Sept. 21, 2000 and Jun. 5, 2001). (“Court turns down appeal of tobacco attorney fees”, AP/Jefferson City News Tribune, Oct. 2) (via Lori Patel, Law.com). Ethical Esq.? (Oct. 3) comments on the case, citing a pertinent passage from the Missouri Rules of Professional Conduct, as well as our previous coverage.
Mother leaves daughter unattended, collects $2 million
In 1992, Shelly Moore, against Texas law, left her infant daughter Shannon unattended in a car. “In a deposition in 1996, Moore acknowledged that she had been using a faulty lighter that at times continued to flame after she lighted a cigarette and had to be blown out. Several witnesses testified in depositions that Moore told them she thought she had lighted a cigarette as she left the car, then absent-mindedly tossed the lighter on the seat.” The car burst into flames, and Shannon was horrifically burned, eventually losing all of her fingers and her hearing.
Moore and her daughter moved to Johnson County, Texas, a notoriously plaintiff-friendly region, and Shannon sued…Philip Morris, who made the Marlboro 100s Shelly smoked. (Shannon named her mother as a codefendant; where one named plaintiff and one named defendant are citizens of the same state, a defendant is unable to remove the case to federal court on diversity jurisdictional grounds.) The claim was that a smoldering cigarette caused a fire, and Shannon’s injuries were the tobacco company’s fault for failing to design a cigarette that would not stop burning. Rather than risk putting the case in front of a jury that would be exposed to photos of Shannon’s terrible burns, Philip Morris settled for $2 million. Fifteen previous cases alleging product liability over cigarette fires had been dismissed before trial. (Myron Levin, “Tobacco Giant, in a Shift, Pays Victim”, L.A. Times, Oct. 2). More on case: J. R. Labbe, “Somebody has to pay”, Fort Worth Star-Telegram, Oct. 5.
Welcome Sydney Morning Herald readers
“Increasingly, Australians live in a society in which it is always someone else’s fault; in which perpetrators masquerade as victims; in which personal responsibility has been replaced, all too frequently, by a readiness to lie, to sue, to redirect blame or, worse, to find scapegoats. … It is a cruel irony of modern life that the only people who can regularly be relied on to accept — indeed, to claim — responsibility for their actions are terrorist bombers.” Cites a certain website where “many examples of the lunacy of litigation are to be found”. Our special section on Australian cases, covering stories since June of this year, is here; for stories before that date, use our search function. Our section on personal responsibility is here, with older items here. (John Huxley, “Not my fault”, Sydney Morning Herald, Oct. 4)
Overreading mammograms
American women who get routine mammograms are more likely to be called back for additional tests than women in other countries, even though such caution does not result in more cases of breast cancer being found, a new study has found. ‘Higher callback rates would be fine if we had evidence we’re getting more bang for the buck,’ said Dr. Joann Elmore, lead author of research published Wednesday in the Journal of the National Cancer Institute. ‘But we’re not.'” The study found that “American mammographers do not detect any more cases of breast cancer, nor do they detect cancer at earlier stages, than their counterparts in such countries as Australia, the Netherlands, Italy or Britain.” They do, however, have a much higher false-positive rate: “According to one of Elmore’s earlier studies, one in every two U.S. women will have at least one false positive after 10 years of annual screening. … the authors say they have adjusted for most of the other factors that could lead to higher false-positive rates and hint strongly that America’s litigious culture is implicated.” (“Callbacks don’t increase detection”, Chicago Tribune/San Diego Network of Care, Sept. 17). See also Nov. 2, 2000; May 12, 2003; “Study suggests false-positive mammogram results linked to radiologists? experience”, UW School of Medicine Online News, Sept. 27, 2002 (earlier Elmore research).
U.K.: defending assumption of risk
There’s been much attention (and deservedly so) to the recent ruling of the Appellate Committee of the House of Lords in Tomlinson v. Congleton Borough Council (see Aug. 11), which vigorously and eloquently defended the principle of assumption of risk as a bulwark of “the liberty of the citizen” which helps prevent the imposition of “a grey and dull safety regime on everyone.” See, for example, Scott Norvell, “‘The Protection of the Foolhardy or Reckless Few’?”, TechCentralStation.com, Oct. 2. Now, in a case that arose on the Isle of Wight, “A judge has stripped a schoolboy of a ?4,250 damages award after his school argued that it would be ‘madness’ to compensate him for breaking his arm after falling off a swing as he played Superman during a sports day at Chillerton country primary school near Newport. … [O]verturning the ruling that the school was negligent, Mr Justice Gross said at London’s high court that if ‘word got out’ the boy had won his case ‘the probability is sports days and other pleasurable sporting events will simply not take place … Such events could easily become uninsurable, or at prohibitive cost.'” (Clare Dyer, The Guardian, Sept. 25; Chris Boffey, “Judge’s ruling ‘saves school sports days'”, Daily Telegraph, Sept. 25). See also articles by barrister Jon Holbrook in Spiked Online: “‘Duties of care’ to the careless and criminal” (Tony Martin case, etc.), Jul. 29; “The trouble with Making Amends” (medical malpractice law), Aug. 22; “Blind spot” (road accident caused by pedestrian), Sept. 23.
UPDATE: “FBI Probes Big Jury Awards in Mississippi”
It’s not clear what the FBI is looking for, but after a couple of $100 million+ verdicts against pharmaceutical companies in southwest Mississippi, there’s been a lot of collateral litigation that sounds like it’s from a John Grisham novel: former jurors filed suit against CBS for their coverage of the case (see Dec. 16-17, 2002), a half-dozen former plaintiffs have sued their lawyer, and three people claiming they were “runners” have alleged in litigation that they haven’t been paid promised referral fees (see May 7). Pharmacies, brought into the products liability cases as defendants to defeat federal diversity jurisdiction, are being subpoenaed regarding forged prescription records. (Matt Volz, AP, Oct. 3).