If you see fewer trees in your California city, it’s because attorney Matthew Davis is making a practice out of suing landowners or public agencies when people are injured by falling tree limbs in highly populated areas. Cities may well find that cutting down trees is cheaper than maintaining them to a standard that avoids lawsuits, or taxpayers may find themselves footing the bill for insuring the public when the bough breaks. (Justin Scheck, “Lawyer’s Accidental Specialty in Tree Lawsuits Bears Fruit”, The Recorder, May 2).
Archive for April, 2005
$1 in damages, $1 million in attorneys’ fees?
After eight years and three trials, a group of protesters whose eyes were swabbed with pepper spray during a series of anti-logging demonstrations finally won their case Thursday against Humboldt County sheriff’s deputies and Eureka police—but were awarded only $1 each in damages.
The protestors had blocked a public road by locking their arms together inside metal pipes, and argued that the police should have used a grinder to cut through the metal. One press account credulously repeats: “‘It was never about the money,’ [attorney Dennis] Cunningham said. ‘It was always about the principle.'” This contradicts the complaint in the case, which asked for punitive damages, and I wonder if the press will remind Cunningham of his statement when the plaintiffs ask for attorney’s fees—which are now potentially available to the plaintiffs because of the “success” of the $1 verdict in a civil rights case. The plaintiffs’ web page estimates that they will ask for about a million dollars. (Stacy Finz, “Logging protesters win pepper spray case”, SF Chronicle, Apr. 29; Justin M. Norton, AP, Apr. 29; Plaintiffs’ web site).
Update: Miss. judge’s wife may cooperate with prosecutors
Jennifer Diaz, ex-wife of Mississippi Supreme Court Justice Oliver Diaz Jr., has struck a plea agreement with prosecutors and may become “a witness against him and others charged in a federal corruption probe”. “In 2000, Jennifer Diaz received a loan for campaign funds that was guaranteed by prominent trial lawyer Dickie Scruggs in the amount of $80,000,” but did not report the amount as income when Scruggs forgave the debt. Scruggs was not charged in the investigation, which led to indictments of the Diazes, prominent trial lawyer Paul Minor, and two former judges; trial on the charges “is set to begin May 9 in Jackson”. (Jerry Mitchell and Julie Goodman, “Judge’s ex-wife might be prosecution witness, officials say”, Jackson Clarion-Ledger, Apr. 26). See Feb. 22, 2004 and links from there.
“Wealthy suspect is serial litigant”
“During the two decades [millionaire murder defendant Fred] Keller has lived in Palm Beach County, he has filed more than 160 lawsuits. Most were landlord-tenant actions in connection with his commercial real estate empire,” but there were also a large assortment of others, including suits naming several relatives and a former girlfriend against whom he waged a 16-year campaign to collect a $2,225 debt. Keller, 70, is headed for a retrial next month after a jury deadlocked on charges that include “first-degree murder in the death of his fifth wife, Rosemarie, and attempted first-degree murder in the wounding of her brother in November 2003.” (Larry Keller, Palm Beach Post, Apr. 25)(via Sploid).
Ambulance chasing in St. Cloud, MN
In St. Cloud, Minnesota, a drunk started a fight with an employee of the Red Carpet Nightclub, and was on the losing end when a bouncer got involved; Justin Smiley eventually died from injuries sustained when his head hit the concrete. A tort suit in the making, but state ethical rules prohibit soliciting the decedent’s family directly. What to do if you’re an enterprising plaintiff’s lawyer hoping to comply with the letter of the rules? Post an ad in the paper! To wit, one asking “Have you or anyone you know been injured in a local bar?”
“To say that this ad was in poor taste would be akin to describing wearing a halter top to a funeral as being a a bit underdressed,” says a St. Cloud blogger, who reprints the offending ad. King Banian agrees, as do local newspaper readers.
Accolades
It’s time to round up and thank some of those who’ve said or done kind things on our behalf recently. That would include Denise Howell, one of the earliest and best-known lawyer-bloggers (Bag and Baggage), who’s recently helped launch a new group blog at Corante on technology, culture and the law called Between Lawyers, featuring Ernest Svenson and others; in the comments section she calls Overlawyered “an excellent blog I recommend highly” (Mar. 28, comment section). Kevin O’Brien at Aero-News.net calls us “always-interesting” (Apr. 21) and while glad to return that nice compliment we note that it lacks intensity compared with what Donna Baver Rovito, dynamo of Pennsylvania physician activism, wrote recently (Mar. 17):
…just for the record, I would walk on broken glass for Walter Olson and Ted Frank in gratitude for the unbelievable research offered up on their websites Overlawyered.com and PointofLaw.com.
Wow. Evan Schaeffer probably wouldn’t go along completely with that sentiment but has lately extended congratulations to one of us and coffee mugs to both. We’ve also been recommended recently by Frazzle.com (Apr. 23), by Australia’s WogBlog (Apr. 27, calling us “terrific”), and, in Portuguese, Lado Negro da Web (Apr. 24). And the new legal blog aggregator Juris Novus, which fills the same general niche left by the late and lamented DailyWhirl, gives prominent placement to this site among its offerings. More: Precision Blogging (Apr. 29) calls us the “perfect antidote for a beautiful Spring day,” but seems to mean that in a complimentary way.
More on District of Columbia v. Beretta, U.S.A.
We get mail:
You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”
But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.
Chris Schmitthenner
It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.
First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.
Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.
In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.
I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.
Rogers v. Merck
Until today it looked as if the first Vioxx wrongful-death action to go to trial against Merck & Co. since the painkiller’s withdrawal from the market would be Cheryl Rogers’ lawsuit in an Alabama state court over the death of her late husband Howard. Now, at the request of a federal judge who is presiding over other Vioxx cases, the parties have agreed to postpone trial in the Rogers case, which had been set to start next month. (Theresa Agovino, “First Vioxx trial to be postponed”, AP/Business Week, Apr. 28). That’s a pity, since it would have been illuminating to get to the bottom of the allegations about the case aired in recent weeks. Per AP:
Pharmacists’ rights
Dave Boaz of the Cato Institute, a friend of this site, is debating the matter over at Legal Affairs’ Debate Club this week with Judy Waxman of the National Women’s Law Center. See Apr. 13 (linking to Steve Chapman column)(& letter to the editor, May 10).
Antiquities trade
Various nationalist governments and well-intended archaeologists are trying to shut down the worldwide trade in antiquities, but it’s far from clear that declaring governments to be the sole rightful owners of historical relics leads to better conservation or better public understanding of them. As the U.S. government increasingly shows itself willing to enforce foreign states’ claims of ownership in artifacts, collectors in this country are tangled in legal uncertainties and faced with demands that they affirmatively document long-ago provenances, an often impossible task. And some of the “cultural patrimony” subject to demands for repatriation is of distinctly recent vintage: China seeks title to “calligraphy and paintings dating from as recently as 1912”. (Steven Vincent, “Ancient Treasures for Sale”, Reason, Apr.). Inasmuch as governments such as those of China, Cambodia and Afghanistan have themselves been pre-eminent destroyers of their own store of cultural antiquities — the damage done during China’s Cultural Revolution period is incalculable — the dispersal of an ancient culture’s artworks around the world may turn out to be an important safeguard in making sure that in future such episodes at least a portion of the treasure survives the wreck.