We’ve previously covered the ludicrous billion-dollar oyster fishermen lawsuits in Louisiana (Sep. 10; May 25; Oct. 18, 2003), where a jury awarded a sum greater than the value of the last century of oyster harvests to oyster fishermen who had a slightly reduced harvest because of a coastal conservation project that changed the beds’ salinity. The Louisiana Supreme Court decided to enforce the “hold harmless” provision in the $2/acre leases that the lower courts ignored, and unanimously voted to toss the judgment; the plaintiffs get zero. For the first time, the press coverage notes that the oyster fishermen negotiated for the clauses as a compromise in 1989 when the state indicated that they were not going to renew the leases to avoid precisely the issue of liability for changed salinity levels–alas, I see no indication that the state will sue the fishermen for breaking that promise in their contract. The refusal of courts to enforce immunity clauses (and laws) is all too often a problem. Louisiana taxpayers should be pleased that the state stood on principle and refused the plaintiffs’ proposal to settle for less than thirteen cents on the dollar of the verdict. (Jeffrey Meitrodt, “Oyster farmers’ award overturned”, New Orleans Times-Picayune, Oct. 20; Janet McConnaughey, “Court throws out $1.3 billion judgment in oyster lease case”, AP, Oct. 20). The AP gives a soapbox to the plaintiffs in an article that has no acknowledgement of the fundamental unfairness of their claim. (Cain Burdeau, AP, “Caernarvon ruling leaves oystermen seething”, Oct. 20).
Archive for October, 2004
Conscription
It seems one of the major party candidates this year does favor it, after all (Cox and Forkum, Oct. 20).
Update: N.Y. high court derails Blue Cross anti-tobacco suit
Several years ago, in a controversial ruling, activist federal judge Jack Weinstein ruled that health insurance plans in New York could sue tobacco companies for cost recoupment under state consumer protection law. The result, in 2000, was a jury verdict of $17 million to which Weinstein added an award of $32 million in attorney’s fees (see Mar. 6-7, 2002). However, the state’s highest court, the Court of Appeals, has now declared that the basis of the case is invalid: the Blues can’t invoke the consumer protection act. That will probably mean the suit’s dismissal. Health insurers do have a separate right to sue under older principles of “subrogation”, but the tobacco companies have robust defenses against that variety of action. (John Caher, “Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers”, New York Law Journal, Oct. 20). Two other Blue Cross actions in other states have also been dismissed. On dismissal of union health plans’ suits against tobacco companies, see Jan. 11, 2000.
And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either — the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.
Update: judge OKs obstructed-view class action
Updating our Feb. 11-12, 2002 report: “A judge has approved a class-action lawsuit against Ticketmaster and Madison Square Garden for allegedly selling seats with obstructed views of Michael Jackson’s 30th anniversary concert three years ago. The judge said the suit potentially covers 7,840 ticket buyers ‘who received no advance notice that their seats were inadequate for viewing purposes.'” (“Judge gives go-ahead to suit against Ticketmaster, Madison Square Garden”, AP/CourtTV, Oct. 7).
The ad that trial lawyers don’t want Illinois voters to hear
Operating Engineers Local 318 sued to stop Illinois Lawsuit Abuse Watch from broadcasting the following ad about the Illinois Supreme Court race (Sep. 13, Mar. 20):
“We’ve all seen the headlines about how the flood of frivolous lawsuits in the Metro East is closing doctors’ offices and driving many of our finest physicians away. Greedy personal injury lawyers have turned the Metro East into a haven for bad lawsuits. But lawsuit abuse doesn’t just hurt doctors – it hurts all of us. Frivolous lawsuits, many without scientific merit, limit access to health care and drive up prescription drug costs. And lawsuit abuse slows down the development of new lifesaving medical devices.
“Now we all have a chance to cure the lawsuit epidemic. Personal injury lawyers have given over $2 million to Illinois Supreme Court candidates because they want their friends on our court. But we want our justices to be unbiased and fair. To find out if your state Supreme Court candidate takes money from personal injury lawyers, contact Illinois Lawsuit Abuse Watch at www.I-LAW.org. Together we can make sure justice is no longer for sale in the Metro East. Paid for by Illinois Lawsuit Abuse Watch.”
Circuit Judge Phillip Palmer of Williamson County issued a temporary restraining order to forbid the broadcast of the ad, even though it doesn’t mention any candidates by name, as a supposed violation of Illinois campaign finance law. Once again, “campaign finance reform” Oct. 17) becomes speech regulation and censorship. (Paul Hampel, “Tort reform group is ordered to pull ad”, St. Louis Post-Dispatch, Oct. 19).
Calif.’s mandatory harassment training
A new law will require mid-size and larger employers in California to put their supervisors through interactive training aimed at preventing sexual harassment. Gov. Arnold Schwarzenegger, who may have a hard time standing up to feminist demands given his own record on the issue, signed the bill Sept. 29. (Jacqueline McManus, “New law for harassment awareness”, Monterey County Herald, Oct. 8; Peter Nicholas, “Business Sees an Ally in Governor”, L.A. Times/KTLA, Oct. 18). “The law defines a covered ’employer’ as one that employs 50 or more persons, which includes temporary service employees and independent contractors. The law does not specify that the 50 employees must be within California. That means that an employer with 50 total employees may be covered by the law, even if just a few workers are in California.” (“New California Law Mandates Anti-Harassment Prevention Training for Supervisors”, Jackson Lewis, Oct. 1) (via George’s Employment Blawg). When Connecticut lawmakers enacted the first such state law twelve years ago, I took a dim view.
Asbestos: new at Point of Law
Over at Point of Law, which has an entire category devoted to asbestos litigation, there are several new posts on the subject. Ted Frank reports on a potentially major turnaround in Madison County, Ill. handling of asbestos suits, occasioned by the arrival of a new judge. Guest blogger Michael DeBow links to a substantial Houston Chronicle article on the crisis. As for me, I’ve got posts on how an Australian court has approved a claim for psychological injury from asbestos, on how Dallas tort czar Fred Baron is allegedly retired from the asbestos business (well, sort of), and on the “rocket docket” operation of court schedules in, again, Madison County.
Stonewalling 101?
A New Jersey nursing home defense attorney finds himself under fire after a presentation to fellow litigators at which he seemed to recommend, whether in a jocular way or not, making plaintiffs fight for every document and asserting blanket claims of privilege to keep relevant papers out of their hands. Curiously, adversaries who’ve litigated against attorney Donald Davidson tell a reporter that they consider him a straight shooter who has not used abusive or stonewalling tactics against them. (Charles Toutant, “Candid Comments About Discovery Bring Lawyer National Notoriety”, New Jersey Law Journal, Sept. 21).
Welcome New York Sun readers
I’m quoted and this site is mentioned in an article on the ever-expanding enforcement ambitions of New York Attorney General Eliot Spitzer (William F. Hammond Jr., “Spitzer Cements His Reputation as One to Watch”, Oct. 21)(more on Spitzer from Point of Law). More: For a more benign view of Spitzer than the one I take, see Daniel Gross’s Oct. 21 profile in Slate. Yet more: Martin Grace points out that the multifaceted AG has a blog.
New legal weblog
I seldom carry announcements of new legal weblogs, but will make an exception in the case of Al Nye the Lawyer Guy out of Portland, Maine, if only because he shows such good taste in books (buy).