The Massachusetts Supreme Court rules it can be banned. The losing party: the American Lithuanian Naturalization Club of Athol, Mass. (Denise Lavoie, “SJC: Local health board can ban smoking in private clubs”, Boston Globe, Mar. 22)(via Balko).
Archive for March, 2006
TiVo’s triumph
The greatest accomplishment of 41-year-old TiVo general counsel Matthew Zinn? It’s that his nine-year-old company hasn’t yet “been sued out of existence.” (Petra Pasternak, “TiVo Against the Giants”, The Recorder/Law.com, Mar. 15).
If I could sue like the animals
Canadian photographer Gregory Colbert is starting an outfit he calls the Animal Copyright Foundation whose intent is to collect royalty payments on behalf of animal species as compensation for the use in advertising of, for instance, the Budweiser Clydesdales, Target’s spotted dog, the Hartford’s stag, and other furred, finned or feathered creatures, the proceeds to be distributed to conservation causes that benefit animals. In all fairness, media accounts describe Colbert as seeking not obligatory rules requiring payment of the 1 percent royalties when a photo or video is used, but rather a “seal of approval” system in which advertisers vie for consumer favor by voluntarily pledging the set-aside. One almost hesitates to publicize the idea, however, for fear it will percolate in the law schools and emerge after a few years as an asserted new legal entitlement, as “animal standing” has done. (WSJ law blog, Mar. 16; Tim Nudd, AdFreak, Mar. 10; Lunch Over IP, Feb. 25).
Coaching police experts
Lawrence Taylor at DUIblog (Mar. 17, via Cernovich) has got the goods on a coaching memo given by the San Diego Police Department to the technical experts they put on the stand to testify as to drivers’ blood-alcohol levels (emphasis in original memo):
You will always mix any tube with an anticoagulent [sic] 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.
As Taylor observes, the witnesses are instructed to testify under oath to an account calculated to help the prosecution prevail, “not as to what they actually did and what they know to be true in a specific case”.
For more on witness-coaching, see Sept. 10, 1999, Sept. 22-24, 2000, and, of course, our many entries on the famous Baron & Budd witness memo scandal.
“Not About The Money” files: $175 million suit against BGE
One of our favorite clichés is repeated in a tale of a lawsuit over a tragic electrocution. Because it’s BGE’s fault Gary Dart’s trailer caught on fire, because, after all, powerlines never go down during a snowstorm without negligence. Good thing it’s not about the money, or they might have asked for a lot more than $175 million. The attorney is Dave Ellin. (Joseph M. Giordano, “BGE Is Sued Over Electrocution”, Dundalk Eagle, Mar. 27). Because BGE is a regulated utility (whose maintenance budget is set in negotiations with the governmental public utility commission), the expenses of the lawsuit, including any damages, will eventually be passed on to local ratepayers. (Update: or not. See comments.)
Search engine index
Six of the eight most expensive Google AdSense search terms are for attorneys (the other two are for mortgage and loan refinancing), with “mesothelioma lawyers” topping the charts at $54.33. A regularly updated page can be found here. (CyberWyre blog, Mar. 23 (h/t Slim)). Earlier search-engine follies: Apr. 8, 2004; Nov. 18, 2004.
(“McDonalds coffee lawsuit” [sic] goes for $0.67, which is a shame, because the top ten links all refer back to ATLA’s propaganda on the subject. Perhaps if our blogging readers could link to our coverage…?)
Update: Clearly, there’s a lot of competition for that “mesothelioma lawyer” keyword, given the $54.33 price; this is because there is a lot of easy profit to be made on mesiothelioma cases by lawyers: there are so many defendants, and so many cases, that attorneys and defendants find it cheaper to settle for nuisance sums, which add up quickly to an automatic profit for the attorney, even if the case is tried and lost against recalcitrant defendants who dare to expose themselves to lottery litigation (cf. also POL Jun. 10, 2005). The interesting question is what market failure has occurred such that this gigantic profit is not being competed away by, say, offering clients a smaller attorneys’ fee. This is surplus that should be going to clients, not to Google. Is there collusion not to lower attorneys’ fees? If consumer advocates cared about consumers, rather than attorneys, we might see some investigation into the matter.
I’ve refused to publish a few comments. Reasons why in the jump.
Tried to outrun subway train, wins $1.4 m
By a 4-3 vote, New York’s highest court, the Court of Appeals, has voted to uphold a $1.4 million jury award against the New York City Transit Authority on behalf of Juan Soto, who after a night of drinking with friends decided to trespass on the elevated subway roadbed at Queensboro Plaza and then failed to outrun a #7 train that came up behind. (Pete Donohue, “Loses to train & wins big”, New York Daily News, Mar. 25). Per a New York Daily News editorial, “To justify paying him, the court credited Soto’s testimony that he could tell how fast he was running because he often ran on a treadmill, and based on that speed some hired expert said the motorman should have been able to stop before hitting him.” (“A court runs off the rails”, Mar. 25)(Soto v. New York City Transit Authority, PDF).
County 25% responsible for employee’s murder of husband
In a sensational 2002 murder trial with echoes of the film “American Beauty”, Kristin Rossum was found guilty of poisoning husband Gregory de Villers and trying to make his death look like a suicide. Now a lawyer for de Villers’ family has convinced a jury that Rossum’s employer, San Diego County, should be held 25 percent responsible for $6 million in resulting wrongful-death damages. Rossum had access to lethal drugs through her work as a toxicologist for the county, and had not been subject to background screening; she relapsed into methamphetamine use a week before the murder. “It is not the duty of the county of San Diego to prevent a wife from murdering her husband,” said Senior Deputy County Counsel Deborah A. McCarthy, who predicted that the county would succeed in overturning the verdict on appeal. “If this case stands, it will expand public liability in a way the state of California never envisioned.” (“Millions of Dollars Awarded to Family of Man Killed by Toxicologist Wife”, North County Times, Mar. 20)(via Childs). Update Jul. 2: judge cuts verdict.
Update: trial win rates understate success of ADA plaintiffs
Seven years ago the American Bar Association’s disability-rights commission released a study advancing the notion that the federal courts are unreasonably hostile to claims under the Americans with Disabilities Act; the study, as I described it back then, “purportedly found employers winning 92% of ADA lawsuits and almost as high a share of Equal Employment Opportunity Commission proceedings”. The study was roundly criticized, by me and others, for grossly understating the actual success rate of ADA plaintiffs, who most commonly obtain settlements rather than final court disposition of their claims.
Just to bounce the rubble on this particular point, one may note a study published in the Mental & Physical Disability Law Reporter in the May/June issue of last year, by academics who appear (in contrast to my own views) to be enthusiasts for litigation under the ADA. In “Prevalence and Outcomes of ADA Employment Discrimination Claims in the Federal Courts“, Kathryn Moss (University of North Carolina) and co-authors Michael Darren Ullman, Jeffrey W. Swanson, Leah M. Ranney and Scott Burris conclude that “published case decisions create a misleading impression of ADA outcomes”; in particular, “plaintiffs received a beneficial outcome (mostly through settlement) in 62% of cases.” High defendant win rates are, in fact, a very poor guide to whether money is frequently changing hands or other concessions being made by targets of the suits.
A fix for orphan copyright?
In today’s WSJ, Jerry Brito and Bridget C.E. Dooling propose that Congress “create an affirmative defense — along the lines of fair use — for those who copy a work after trying unsuccessfully to locate the copyright owner. …Of course, the user should have to share any future profits with the rightful owner of the work, but he should not have to face the stiff statutory penalties of copyright infringement that now prevent so many orphan works from being used. This would also give copyright owners who value their works an incentive to make themselves relatively easy to be found.” (“Who’s Your Daddy?”, Mar. 25, sub-only). For more on the legal problems occasioned by works whose original creators are unknown or untraceable, see Apr. 14 and Jul. 26 of last year.