The great aviation pioneer, who died of typhoid fever in 1912 at age 45, spent his last years enmeshed in bitter litigation with rival Glenn Curtiss. “Wilbur did not survive the litigation. In an official history [of intellectual property law firm Fish & Neave, the firm’s resident historian Albert E.] Fey wrote, ‘In the interest of full disclosure, I must tell you that the Wright Brothers case went on for so long it may have killed Wilbur in the process. A little known fact is that we dragged him to Boston for a deposition, where he became ill. He never recovered.'” (James V. Grimaldi, “After Historic Flight, Wrights Went to Court”, Washington Post, Sept. 21(via Ernie the Attorney who got it from Dennis Kennedy)(& welcome Law.com readers)
Archive for 2003
$1 damages and reinstatement; $118,000 fee request
“An attorney who helped a fired city employee win back his job and $1 in damages is seeking nearly $118,000 in fees and costs related to the case.” Attorney Cynthia Pollick had sued on behalf of vehicle mechanic Robert Murray, fired by the city of Scranton. A jury agreed that the firing was wrongful under a state whistleblower statute but awarded only token damages. “The reason the jury’s monetary award was only $1, she said, is because Mr. Murray managed to find another job paying $4 more an hour within one week of his termination.” (Thomas K. Staff, “City employee’s attorney seeks fees”, Scranton Times Tribune, Sept. 18).
Ruffing v. Union Carbide “fraud” case goes forward
One of the disturbing trends in the tort system is the expansion of liability among the multiple axes of time and causation. For centuries, a fraud case required a plaintiff who was injured when he or she relied upon a material misrepresentation. More and more, plaintiffs’ attorneys are asking courts to disregard the black-letter requirement of reliance, and simply punish a defendant for an ostensible lie. In some cases, a constitutionally questionable statute permits a lawsuit against a corporation even where the plaintiff has no dealing with the corporation. (See Jul. 1). In others, judges who should know better endorse huge expansions of tort law.
A recent New York appellate court case, Ruffing v. Union Carbide, adopted such an argument in a 3-2 decision. The plaintiff’s mother, Heather Curtis, was allegedly lied to by IBM 23 years earlier; the statute of limitations has run for her, however, so she cannot bring a case. But her minor daughter, Candac?–who was unborn when the alleged misrepresentation occurred–claims a fraud cause of action that is now allowed to go forward. (Candac? suffers from severe birth defects; Ms. Curtis’s other two children do not.) The plaintiffs’ attorney is gleeful about the impact on corporations: “there are very severe legal consequences that they face — uninsurable legal consequences”. IBM denies that there are more instances of birth defects in the children of its employees than among the population in general, but if the causation requirement of reliance can be removed at the stroke of a pen, what’s to stop a court from removing the rest of the causation requirement and just hold IBM strictly liable for any birth defects its workers suffer? (Tom Perrotta, “Woman Can Sue Over ‘Lie’ to Mother”, New York Law Journal, Sep. 25; Bob Herbert, “I.B.M. Families Ask Why?”, New York Times, Sep. 15 archive).
Dewey Decimal system owner sues Library Hotel
“The nonprofit library cooperative that owns the Dewey Decimal system has filed suit against a library-themed luxury hotel in Manhattan for trademark infringement. The Library Hotel, which overlooks the New York Public Library, is divided according to the classification system, with each floor dedicated to one of Dewey’s 10 categories. Room 700.003 includes books on the performing arts, for example, while room 800.001 has a collection of erotic literature.” A lawyer for the library group, Joseph Dreitler, claims a “person who came to (the hotel’s) Web site … would think they were passing themselves off as connected with the owner of the Dewey Decimal Classification system.” Eugene Volokh (Sept. 21) makes short work of this argument and classifies the action as a cousin to Fox v. Franken in trademark law abuse. The suit demands triple the hotel’s profits since its opening. (AP/Wired News, Sept. 20; Kevin Drum; Perfidy.org; Hill-Kleerup.org). Update Nov. 29: case settled.
Diagnosis: asbestos
Commenting on the recent legal action (see Sept. 21) charging a cardiologist with having run a diagnosis mill providing dubious certification of heart damage for thousands of fen-phen claimants, Sydney Smith (Medpundit) is reminded of a problem from her own practice (Sept. 19, scroll down): “Making dubious diagnoses for class action suits is becoming a bit of a cottage industry in medicine. Asbestos is the [worst]. Several of my patients have come in saying that they’ve been diagnosed with asbestosis by ‘the union’s lawyer’s doctor.’ Needless to say, neither the union, nor the lawyer, nor the doctor ever share their findings with me, even when asked. And not one case has been confirmed by our local pulmonologist when I’ve referred them on. That is if they’ll let me. Some of them don’t want to have a second opinion — don’t want to miss that payout. (That’s not to say I haven’t had cases of asbestosis. But curiously, all of my asbestosis cases were not diagnosed by lawyers.)”.
“Next: No Cigs in Your Car”
“Smoking even in the privacy of your own car could be banned under one of at least five state bills introduced in the past year to limit where a person can light up.” The car smoking ban would apply whenever children — including the smoker’s own children — were present in a car. For earlier proposals along these lines, see Jun. 3-4, 2002 and Oct. 5, 2001. (Kenneth Lovett, New York Post, Sept. 22).
“Trial Lawyers Inc.”
In an editorial yesterday, the Wall Street Journal hailed the new study by the Manhattan Institute (with which I’m affiliated) dissecting the finances and operating methods of what might be “America’s only recession-proof industry: the plaintiffs’ bar. … [The] estimated $40 billion in revenues our tort warriors took in for 2001 was 50% more than Microsoft or Intel and double that of Coca-Cola.” (Sept. 23, online subscribers only). More coverage: Marguerite Higgins, “Lawsuit industry generates billions”, Washington Times, Sept. 24; UPI/Washington Times, Sept. 24. The study itself, along with updates and lots of other related information, can be found at the eponymous site TrialLawyersInc.com.
Legal Reform Summit
As mentioned, I spent Monday attending the fourth annual Legal Reform Summit in Washington, D.C., an event co-sponsored by the U.S. Chamber of Commerce Institute for Legal Reform, the American Tort Reform Association, the Business Roundtable, the Doctors Company of Napa, Calif., and law firms Jenner & Block and Mayer Brown, Rowe & Maw. I gave a short talk on the subject of “who’s next as a target of mass litigation?”, which correspondent Mark Hofmann of Business Insurance magazine wrote up on the magazine’s web journal (“Employers face new wave of lawsuits”, Sept. 22).
I was also surprised and gratified, at the Summit’s awards luncheon, to be named the recipient of its annual “Individual Achievement Award”. The engraved glass award is now sitting on my desk even as I type. Many thanks to all concerned!
Eatery asks for waiver
OK, it’s a PR gimmick. But after Professor Bernstein at the Volokh Conspiracy pointed it out, how could we not mention it? Seattle’s “5 Spot” restaurant offers a new $5.75 decadent dessert, but requires diners to sign a waiver before being served the fattening item. Telling remark: GWU Professor John Banzhaf, the target of the tongue-in-cheek red tape, told the Washington Post he wasn’t fazed by the loss of the McDonald’s suit (see Sep. 4) because “it takes time for legal theories to coalesce in a way that forces major societal change.” (Blaine Harden, Eatery Joins Battle With ‘The Bulge’, Washington Post, Sep. 20; “Seattle and the Bulge”, Seattle Weekly, Sep. 10-16; Sep. 5 press release).
Our editor on the road
Postings (from me, at least) will be sparser than usual this week as I will be spending a lot of time on the road. On Mon. the 22nd, I’ll be addressing the annual Legal Reform Summit at the U.S. Chamber of Commerce in Washington. The next day, Tues. the 23rd, I’ll also be in Washington to attend the unveiling of an important new study from the Manhattan Institute entitled Trial Lawyers Inc., which tries to get a handle on the scope, operations and future direction of the industry of suing people, considered as an industry; former Attorney General Dick Thornburgh will give the main presentation. And on Thurs. Sept. 25th, I’ll be a panelist at a daytime discussion of Litigation and the Economy held at Ramapo College of New Jersey.