“Republican Californian Congressman Duncan Hunter has introduced a bill titled the ‘Parents’ Empowerment Act,’ which would allow the parent or guardian of a minor to sue (in federal court) anyone who knowingly disseminates any media which contains ‘material that is harmful to minors.'” The bill would apply in cases where “a reasonable person would expect a substantial number of minors to be exposed to the material” and “the minor as a result of exposure to that material is likely to suffer personal or emotional injury or injury to mental or moral welfare.” “Compensatory damages under the bill would start at no less than $10,000 for any instance a minor is exposed to harmful entertainment products”, and liability would apparently extend to original publishers, final retailers, and everyone in between. (“House Bill Threatens Retailers”, icv2.com News, May 21; Jonah Weiland, “CBLDF: New Censorship Bill Turns Parents Into Prosecutors”, May 21; Alan Connor, “The Parents’ Empowerment Act: finding the porn in Harry Potter”, London Review of Books, May 20)(text of H.R. 4239, introduced Apr. 28, courtesy TheOrator.com). Focus on the Family, the religious-right group, likes the idea (Keith Peters, “Congress Considers Parents’ Empowerment Act”, Family News in Focus, May 3)(more on free speech and media law).
Archive for May, 2004
FDA intervenes in drug liability cases
To the horror of the litigation lobby, the Food and Drug Administration has begun intervening in liability lawsuits urging courts not to second-guess design and marketing issues already contemplated and resolved by the federal regulatory agency. For many years now it has been commonplace for lawyers suing over side effects to claim that a drug’s marketer should have, e.g., given a stronger warning even though the FDA had considered and rejected the idea of its doing so. Agency general counsel Daniel Troy is credited with the new policy, which is based on the longstanding principle that state government action should not undercut comprehensive federal regulatory schemes. (“FDA stepping into liability lawsuits on side of drug makers”, Newhouse/Seattle Times, May 11).
For your own good
From the Canadian Arctic: “On May 1, the workers’ compensation board for Nunavut and neighboring Northwest Territories prohibited smoking in any enclosed business or work site, including office buildings and bars. Ever since, smokers have been required to step outside to smoke in a region where temperatures can drop farther than 40 below zero in winter.” (Clifford Krauss, “Snuffing Out a Smoky Way of Life in the Canadian Arctic”, New York Times, May 21).
“Lawsuit in deaths of aliens lingers”
“A lawsuit many called frivolous because it sought more than $41 million from the U.S. government for the relatives of 11 Mexican nationals who died trying to cross illegally into the United States has proven to have more staying power than predicted. A federal court in Tucson has given the relatives another two months to prove accusations that their family members died in the treacherous southern Arizona desert in May 2001 because the Interior Department failed to approve the installation of water stations ‘in the exact area’ of the desert where the Mexicans were found dead. … [The] suit said the illegal aliens died in the Interior Department-managed Cabeza Prieta National Wildlife Refuge north of Yuma after department officials denied a request by Humane Borders, a Tucson-based social-welfare organization, to place water stations in the area. The suit seeks $3.75 million for each of the victims.” (Jerry Seper, Washington Times, May 17; “Dead illegal aliens’ lawsuit to continue”, UPI/Washington Times, May 17). We originally covered the case May 10-12, 2002.
Damage caps for me, but not for thee (cont’d)
Last week (May 13) we commented that it we found somewhat ironic that lawyer client protection funds, run collectively on behalf of the legal profession, generally cap recoveries by defrauded clients at a very stingy level, given the profession’s jaundiced view of capping recoveries in other settings. David Giacalone, with whom we agree on so many other issues, very strongly disagrees with our comments (May 20) and we respond to his criticisms in a three-paragraph addendum to our original post.
Pennsylvania obstetrics
Consider having your baby somewhere else: hit hard by the state’s malpractice crisis, the “five-county Philadelphia region [lost] 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.
“Liability issues have put extraordinary pressure on OB programs in southeastern Pa., while well over 50 percent of practicing obstetricians in the region, perhaps closer to 75 percent, have become employees whose liability coverage is paid for by hospitals, says Wigglesworth, who adds that the trend toward employed OB status in southeastern Pa. has accelerated over the past three and a half years. ‘It is clear that, without the intervention of hospitals to employ and cover obstetricians in the region, we would have an extraordinary crisis, in terms of availability of OB services,’ he says…
“Wigglesworth [notes] that liability costs alone have approached two-thirds of the reimbursement level. …’Surviving’ OB programs in the region are mostly represented by teaching hospitals, including Hospital of the University of Pennsylvania (HUP), Pennsylvania Hospital, Einstein, Hahnemann, Jefferson and Temple.” (Christopher Guadagnino, “Obstetrician scarcity in Pennsylvania”, Physicians News Digest, May)(via Donna Rovito) (& letter to the editor Aug. 16).
Another traffic record; welcome FARK visitors
Easily breaking our previous one-day record set in January, we drew 33,369 unique visitors yesterday, the great majority of them coming when FARK.com picked up our item on the lawyer mobile van. Our readers’ generosity (rattles tip jar) helped make it possible for us to upgrade our hosting service a couple of months ago, which makes the difference in allowing us to accommodate the added traffic. Thanks for your support!
Prison builders sued after serial killer’s suicide
“The mother of accused serial killer Maury Travis, whose bizarre hanging death in the St. Louis County Justice Center was ruled a suicide, filed a suit Friday against the county, the architects who designed the jail and the contractors who built it.” Authorities believe Travis committed as many as twenty murders; he hanged himself in his prison cell after leaving a note. (Peter Shinkle, “Mother of accused serial killer sues over death in jail”, St. Louis Post-Dispatch, May 15)(via Brian Noggle)(& letter to the editor, Jun. 22).
New York’s Martin Act: Spitzer’s blank check
Why is New York Attorney General Eliot Spitzer so feared by the state’s financial community? A major reason is a little-known piece of 1921 New York legislation called the Martin Act, aimed at financial fraud. “It empowers him to subpoena any document he wants from anyone doing business in the state; to keep an investigation totally secret or to make it totally public; and to choose between filing civil or criminal charges whenever he wants. People called in for questioning during Martin Act investigations do not have a right to counsel or a right against self-incrimination. Combined, the act’s powers exceed those given any regulator in any other state.
“Now for the scary part: To win a case, the AG doesn’t have to prove that the defendant intended to defraud anyone, that a transaction took place, or that anyone actually was defrauded. Plus, when the prosecution is over, trial lawyers can gain access to the hoards of documents that the act has churned up and use them as the basis for civil suits.” Important reading (Nicholas Thompson, “The sword of Spitzer”, Legal Affairs, May-June). Radley Balko comments (May 12), and see our Jan. 17 item. More on Spitzer’s financial enforcement: Dec. 17, 2003; Jun. 17-18 and Oct. 30-31, 2002; Mar. 31-Apr. 2, 2000.
Toward an “apology privilege”
“On the one hand, it should not surprise us that genuine contrition defuses litigation. Anybody who has ever served as a general counsel of a corporation knows — or should know — that most people bring lawsuits because they are angry. … On the other hand, we have created rules of evidence that make it very difficult for people and institutions to apologize. … If you apologize, it can and will be used against you to prove liability. If you don’t apologize, though, you may increase the likelihood of the lawsuit, you avoid coming to terms with your own culpability, and you fuel the rage of the person you injured.
“Two states, Colorado and Oregon, have created a little space for civility by passing laws that bar plaintiffs from introducing a doctor’s apology as evidence in a medical malpractice case. A great start, but why carve out an ‘apology privilege’ just for doctors?” — Jack Henneman of Tigerhawk (May 18). And see Cut to Cure, also May 18.