Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2003

Howard Dean letter to the editor

An eagle-eyed reader draws our attention to the June 29, 1988 New York Times, where the then-Lieutenant Governor of Vermont writes to the editor about a Times story on large damages awards in a libel case.

To the Editor:

Randall Bezanson and Gilbert Cranberg detailed a situation that I hope will get far worse. As a physician, I have been frustrated for years by the reluctance of state legislatures and the United States Congress to deal with liability problems of all kinds.

I have long maintained that until the legal profession and the news media are also afflicted with the increasingly severe consequences of a tort system that benefits few people outside the legal profession, there will be no return to a fair and reasonable system of justice.

The trends toward lawyers suing one another for malpractice and toward outrageous-size punitive damages in libel cases give me hope that the crisis in our tort system may finally come to the attention of those who can make this a public issue and improve the situation for all of us who require liability insurance to do business.

HOWARD DEAN, M.D.
Montpelier, Vt., June 17, 1988

The events of the past fifteen years should make Dr. Dean an even more enthusiastic proponent of tort reform; his Dean for America web site is somewhat more neutral.

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Vaccine shortages

Professor Tyler Cowen notes a Financial Times article (subscription only) on how liability issues have driven many vaccine manufacturers out of business, causing the vaccine shortages we see today. (Marginal Revolution blog, Dec. 23).

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Federal Way, WA mainstreaming lawsuit

Six-year-old M.L., born autistic and severely retarded, was not toilet-trained, had no communication skills, and threw frequent temper tantrums that on one occasion resulted in another child being bitten. Federal law, 20 U.S.C. ? 1414, requires public schools, through an extensive and complicated procedure, to make accommodations to “educate” M.L. When the Federal Way School District offered to put M.L. in a special program with other autistic children, his parents protested, though they had not participated in meetings with school officials about the best possible solution. An eight-day hearing before an administrative law judge was held; the ALJ ruled against the parents’ objections. The parents appealed to federal district court. The federal district court ruled that the school district’s proposal complied with federal law. The parents appealed to the Ninth Circuit Court of Appeals. The appellate court affirmed the district court decision.

However, a few days ago, the Ninth Circuit withdrew its opinion affirming the case, and asked for additional briefing on the procedures used to make the decision, raising the possibility that it will issue a new opinion requiring the school district to hold more hearings about the appropriate individualized education plan for M.L.

Press coverage of the case has focused almost entirely on the irrelevant issue that the parents were unhappy that some of the regular students were teasing M.L., who was apparently oblivious to the name-calling (which took place for all of five days). (Kathy George, “Judges reconsider teasing case”, Seattle Post-Intelligencer, Dec. 22; M.L. v. Federal Way School Dist.).

Read On…

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Berkeley gun lawsuit mistrial

In 1994, 14-year-old Michael Soe removed his father’s loaded Beretta Model 92 pistol from an unlocked camera bag. Ignoring his father’s training and his previous experience showing off the gun, Soe did not pull back the gun’s slide to check the chamber to see if it was empty before firing it at his fifteen-year-old friend, Griffin Dix, killing him with a bullet to the heart.

So naturally, the parents sued Beretta.

The jury deadlocked 6-6; an earlier jury exonerated Beretta, but the verdict was overturned because a court found juror misconduct because jurors complained that they were bullied by a juror who thought the parents were responsible. The parents say they will try again, and a new trial date will be set January 2. (Charles Burress, “Mistrial in Berkeley teen gun suit”, San Francisco Chronicle, Dec. 24; Glenn Chapman, “Gun case declared a mistrial due to hung jury”, Oakland Tribune, Dec. 24; Glenn Chapman, “Jurors get Beretta handgun safety case”, Oakland Tribune, Dec. 16; Brian Anderson, “Father of accidentally slain boy finds new hope”, Contra Costa Times, Dec. 5). (Update: Brenda Sandburg, “Third Trial Likely in Suit Against Beretta”, The Recorder, Dec. 29).

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Cake decorators face lawyer Grinch

Dragees–the silver-coated balls of sugar decorating many Christmas treats–have been withdrawn from the market in California, as wholesalers and bakers refuse to sell the popular product for fear of being named in a pending suit by a private Napa lawyer against Martha Stewart, Dean and DeLuca, and other purveyors. The low-cost product wasn’t worth defending in an expensive trial. State regulators saw no reason to act, but California law permits private citizens to bring suit.

“We are not aware of any health problems associated with this product,” said Lea Brooks of the California Department of Health Services. “Levels of the metal are extremely low — you’d have to consume massive quantities. We don’t know how much.”

Rebels may still purchase the product in the other 49 states of the Union. (Carol Ness, “Bay Area faces holidays without little silver balls on baked goods”, San Francisco Chronicle, Dec. 23 (via Daily Legal Newswire); David Ryan, “Napa suit ends sales of cake decoration”, Napa Valley Register, Dec. 9).

Read On…

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“Plaintiffs’ Lawyers Seek $107M in Lucent Case Fees”

The amount would be almost one sixth of the $650 million settlement (only $148 million of which is in cash, which Lucent’s insurers put on the table early in the negotiations), working out to about 11 to 15 cents a share for shareholders allegedly injured by alleged securities fraud by Lucent. Another $5 million is set aside to administer the cost of the settlement, and Lucent shareholders surely paid hundreds of thousands of dollars defending the lawsuit, which threatened to put the company into bankruptcy. And you thought that Lucent’s share price dropped from $74 to $3 because of the Internet bubble. (Tim O’Brien, New Jersey Law Journal, Dec. 24).

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Holiday break; Vancouver radio

I’ll be enjoying the holiday for the rest of the week, so postings will come either from Ted Frank or not at all. See you next Monday, most likely. Also, I’m scheduled to appear as a guest next Monday (Dec. 29) on the Bill Good show on Vancouver’s CKNW radio, at 11:30 a.m. Pacific time.

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How do your holiday parties compare?

Attorney Willie Gary, frequently mentioned in this space (see Apr. 1-2, 2002 and links from there) sent out 275,000 invitations this year to his annual holiday party in Stuart, Fla., a fabulous bash that has been called South Florida’s premiere party; tens of thousands attended (Tyler Treadway, “Liberally distributed, invitations to Gary festival more elaborate each” (sic), TCPalm.com (Scripps newspapers), Dec. 11; “Thousands take part in Gary’s holiday fete”, Dec. 13). Gary had an extra reason to celebrate this year, because a jury on Dec. 12 awarded $18 million to one of his clients, a road builder who said he was defamed by an investigative-journalism piece in the Gannett chain’s Pensacola News-Journal (see Mar. 30, 2001). (“Florida jury awards $18 million to road builder”, AP/First Amendment Center, Dec. 16). (More on case: Jan. 7; appeals court reverses, Oct. 25, 2006)

In Houston, meanwhile, trial lawyer W. Mark Lanier expects 5,000 holiday attendees at his 25-acre estate for what he bills as the “best party in the world”, now in its twelfth year. Lanier, who is noted for buying asbestos items on eBay and in 1998 won a $115 million verdict for 21 plaintiffs in an asbestos case, hired Bill Cosby to entertain the crowd this year; previous years’ talent have included Barry Manilow, Crosby, Stills, and Nash, Diana Ross, and the Dixie Chicks. (Jonathan D. Glater, “Houston Holiday: Barbecue, Al Green and 5,000 Guests”, New York Times, Dec. 15)(fee archive) Incidentally, the Times also reports the following: “‘I support tort reform that gets rid of the garbage cases,’ said Mr. Lanier, who is a Republican. ‘I do not support the medical malpractice reform because I think it hurts the good cases and doesn’t do anything to restrict the garbage cases.'”

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UK: “Postman sues customer who sent ‘too many’ letters”

“A postman is taking legal action claiming that he pulled a muscle because there were too many letters in a pillar box.” Alan Pugh claims that George Chryssides, a religious studies lecturer at Wolverhampton University, owes him compensation for posting about 270 envelopes containing a magazine Chryssides publishes for members of the British Society for the Study of Religions, and weighing around 50 pounds in all. “The Communication Workers’ Union is paying for the action and papers have been lodged with Birmingham County Court. Dr Chryssides said: ‘Claims of this kind raise the question of whether people can post their Christmas mail without redress.'” (Nick Britten, Daily Telegraph, Dec. 20)

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