According to State Sen. John Whitmire (D-Houston), the new program to arrest intoxicated Texans in bars whether or not they show any inclination to drive (see Mar. 23) is justified because it nips in the bud potential future misconduct: “Even though a public drunk is not planning on driving, that could change in an instant,” he said. “There is certainly potential danger.” (Pete Slover, “Lawmakers to review bar busts”, Dallas Morning News, Mar. 25). Glenn Reynolds reacts disrespectfully (Mar. 31).
Archive for March, 2006
Gym didn’t have defibrillator
…so a Florida jury ordered it to pay $619,650 to the family of a Fort Lauderdale customer who had a heart attack. A spokesman for L.A. Fitness says it wasn’t common, let alone legally mandatory, for health clubs to stock defibrillators in 2003, when the incident occurred. (Jon Burstein, “Gym told to pay $619,650 in man’s death because it didn’t have a defibrillator”, South Florida Sun-Sentinel, Mar. 30)(hat tip: Florida Masochist).
School choice, the special-ed way
Regarding our Mar. 24 item on demands for accommodation of special-ed students, which has touched off a considerable discussion in comments, Warren Meyer at Coyote Blog makes the important point that special ed represents one of the few sectors in which the legal system has shown itself to be open to parental demands for school choice — unfortunately in a way that is far more expensive than ordinary school choice programs, since the amount of money that “follows the child” is left dangerously open-ended. Call it “school choice for legally savvy parents” (Mar. 29).
Canadian magazine sued over cartoons
Following up on earlier threats (Feb. 14, Mar. 19), Syed Soharwardy has brought a complaint against the Western Standard before the Alberta Human Rights Commission over its publication of the Mohammed cartoons. Ezra Levant, publisher of the Western Standard, explains (Mar. 29) that defendants in the “human rights” tribunal do not benefit from the protection that the loser-pays principle affords most defendants in Canada against groundless or nuisance litigation:
even if we are successful in the human rights commission, we will not be compensated for our legal fees. It’s not like a real court [! — W.O.], where an unsuccessful plaintiff would be ordered to pay a successful defendant’s costs. So even if we win, we lose — the process is the penalty. Worse than that, the radical imam who is suing us doesn’t have to put up a dime — the commission uses tax dollars to pay lawyers and other inquisitors to go at us directly. Human rights tribunals themselves are illiberal institutions.
More: A. Alan Borovoy, “Hearing complaint alters rights body’s mandate”, Calgary Herald, Mar. 16 (PDF).
In other cartoon-jihad news, it appears that giant book retailers Borders and Waldenbooks have been Boston-Phoenix-ized (see Feb. 10); they say they won’t carry the April-May issue of the magazine Free Inquiry, which reprints Mohammed cartoons, for fear of Islamist violence against their employees and customers (Carolyn Thompson, “Borders, Waldenbooks Won’t Carry Magazine”, AP/San Francisco Chronicle, Mar. 29). Free Inquiry is actually worth subscribing to quite aside from this episode; you can do that here.
P.S. Eugene Volokh has a thread discussing the extent to which Borders/Walden might be subject to later tort liability if its sale of the magazine led to violence that harmed customers (Mar. 30). 
Kevin Phillips
Jacob Weisberg does a very nice job of deflating the supposed “GOP strategist” (“The Erring Republican Authority”, Slate, Mar. 29), but I like to think I got there first.
No abuse of process here, move along
Dr. Hazel I. Holst contends that attorney Harry J. Oxman named her as a defendant in a lawsuit brought by Roderick T. Powell arising from a nasal surgery performed in 1970 even though — kind of a big gap in the case — “there was absolutely no record of Dr. Holst ever treating Mr. Powell”. So she sued Oxman for various counts including abuse of process, extortion and racketeering. Now U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania has dismissed her complaint, ruling that 1) Holst could not prove that the case eventuated in a verdict or dismissal in her favor — a prerequisite for an abuse of process claim — because the case had apparently been diverted to alternative dispute resolution and resolved there without a “verdict”; 2) she could not prove racketeering because she made no showing that the lawyer followed a pattern or practice of filing cases of this sort, and — this is my favorite — 3)
that Holst had also failed to allege a valid claim of abuse of process because her extortion claim was limited to an allegation that Oxman had initiated the suit in the hopes of inducing settlement discussions [he had in fact demanded $200,000, per her account].
“This tort requires a ‘perversion of legal process after it has begun in order to achieve a result for which the process was not intended….” [the judge wrote]
(emphasis added). Should we infer that enabling $200,000 demands against doctors under these circumstances is the sort of purpose for which the process was intended? (Shannon P. Duffy, “RICO Suit Against Lawyer Dismissed due to Lack of ‘Enterprise'”, Legal Intelligencer, Mar. 23).
Dead daughter, dilatory dad
Nixzmary Brown was the seven-year-old girl whose grim fate made New York City headlines this winter: she was allegedly tortured, bound and eventually beaten to death by her stepfather while her mother stood by. In the latest development, Nixzmary’s biological father, Abdurrahman Mian, who had lost touch with her mother around the time of the child’s birth and never laid eyes on his daughter during her lifetime, has surfaced with plans to file legal papers asking to be named administrator of the girl’s estate, in preference to her maternal grandmother. The mother’s relatives contend that his newfound manifestation of paternal sentiment may relate to the likelihood that Nixzmary’s estate could be worth millions pending the outcome of expected wrongful-death lawsuits against public agencies that failed to protect her. (Lorena Mongelli and Alex Ginsberg, “He Is the Birth Dad Nixzmary Never Knew”, New York Post, Mar. 17). For another father who rediscovered the love of his child once a multimillion dollar judgment was possible, see Jul. 18, 2005.
Wal*ocaust
It’s blatantly a parody, coupled with social criticism of the world’s largest retailer, but Wal-Mart had its lawyers fire off nastygrams to computer store owner Charles Smith and, perhaps more effectively, to CafePress. Now things have proceeded to court. Smith’s website is here. (Abigail Goldman,”Wal-Mart Parodist Sues to Sell Products”, L.A. Times/Chicago Tribune, Mar. 7)(via Housing Panic).
Defensive medicine? [accept / decline]
Maybe it’d be a good idea to offer patients that choice — but as one doctor explains at Kevin Pho’s, our presently constituted legal system wouldn’t stand for it (Mar. 5).
Dating service sued for turning away married man
Attorney John Claassen, formerly of Skadden Arps, is suing online matchmaker eHarmony.com, which declined to list him because he is not yet divorced and it has a rule against listing profiles of persons who admit to being married. He’s claiming marital-status discrimination in his suit, filed in Alameda County. (Knight-Ridder; AP; SFist)(& welcome Sploid readers). More: Akhmed Al-Fayyed explains why he thinks eHarmony might lose (Mar. 29).