Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2006

Latest hot coffee lawsuit data points

Remember that the reason anti-reformers justify Stella Liebeck’s infamous hot coffee lawsuit against McDonald’s is because McDonald’s was allegedly the only one selling coffee hot enough to burn? The family of a Dallas Cowboys coach has hired an attorney to sue McDonald’s over allegedly tainted food. Here’s how Jeff Carlton of the AP describes him:

Cecil W. Casterline, the Haley’s lawyer, has previously sued Whataburger and Wendy’s on behalf of clients allegedly scalded by coffee.

Earlier: Starbucks; Burger King; Dunkin’ Donuts; Starbucks; Starbucks; an Indiana gas station and coffeemaker manufacturer; and McDonald’s again and again. (Update: also Stony Brook University Hospital cafeteria, and Starbucks again.) All hot coffee burns. That’s why even small children know not to spill it on themselves, and why most courts hold it’s not actionable when one spills hot coffee on oneself.

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“This article is copyright protected. Fair Use is not applicable.”

Eugene Volokh has a good laugh at the expense of an upstate New York publication called the North Country Gazette (Oct. 23 and 25). More: I should have made clear that it was David Giacalone who noticed the Gazette’s unusual policy and called it to the attention of the blogosphere; he has subsequently found himself drawn into a dispute with Gazette proprietor June Maxam. More: Carolyn Elefant, Typical Joe, and PhDiva (here, here and here).

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Cigarette prohibition

Forty-five percent of Americans would support it, according to a new Zogby poll. Ethan Nadelmann of the Drug Policy Alliance warns against repeating our great-grandparents’ mistakes: “a new Prohibition is not the answer — not if we want to stay safe, sane and free.” (Huffington Post, Oct. 26; more).

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October 27 roundup

  • Bill Moyers calls his lawyers. [Adler @ Volokh]
  • Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
  • Did the PSLRA help shareholders? [Point of Law]
  • 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
  • Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
  • “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
  • More on global warming lawsuits. [Point of Law]
  • Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
  • Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
  • Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
  • Who’s your least favorite Supreme Court justice? [Above the Law]
  • More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
  • “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
  • A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]

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Jail4Judges: South Dakota Amendment E

Let’s be clear: one can take the position that there needs to be more judicial accountability and that too many judges overstep their bounds, and still think that Amendment E—the likely-unconstitutional South Dakota ballot proposal to end civil immunity for judges and jurors and establish an unanswerable “special grand jury” to oversee these things—is positively insane cuckoo bonkers. Opponents of the measure have set up a good website discussing the issues.

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Web accessibility suits: AP weighs in

For aficionados of one-sided litigation coverage, here’s a lulu from the Associated Press. It’s an article on the lawsuit (National Federation of the Blind v. Target) seeking to establish that companies violate the Americans with Disabilities Act when they do not design their websites so as to make them “accessible” to users who are blind, deaf, lacking in motor skills needed for mouse use, etc. The article fails to mention the courts’ rejection of the disabled rights groups’ position in the Southwest Airlines case, though it’s the major existing precedent on the point. And aside from a ritual and uninformative denial by the retailer defendant Target that it is liable, the article presents as uncontroversial the demand that non-accessible websites be declared unlawful, with not a hint of why anyone might consider it a thoroughly disastrous idea. Oh, wait: the article does incorporate a bit of controversy, by recording worries that a victory for the plaintiffs in the Target case might not go far enough and come out being “read too narrowly. Not every business or Web site is subject to the Americans with Disabilities Act, said [Washington, D.C. lawyer] John D. Kemp”. (Seth Sutel, “Blind Web surfers sue for accessibility”, AP/San Jose Mercury-News, Oct. 24).

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Honorable mention: attorney Curtis Kennedy

Who says we shrink from giving lawyers favorable publicity? From a report earlier this month in the Rocky Mountain News:

The California law firm Lerach Coughlin sought $96 million in legal fees when it engineered a $400 million shareholder class-action settlement with Qwest Communications over alleged securities fraud.

So how much did Denver attorney Curtis Kennedy seek when he prevailed in getting those legal fees slashed to $60 million – thus providing $36 million more for the shareholders?

Only $40,500. That’s the 90 hours Kennedy spent on the case times his hourly rate of $300 times 1.5, according to a federal court filing this week. …

Other attorneys might have tried to get a percentage of the $36 million.

“I just think that would be hypocritical after asking the judge to apply moderation” to the $96 million request by Lerach Coughlin, Kennedy said.

Kennedy was representing the Association of U S West Retirees in the case. (Jeff Smith, “Lawyer asks for $40,500 in legal fees”, Rocky Mountain News, Oct. 12)(via Securities Litigation Watch).

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Punitive damages and the Supreme Court

I have written a piece on the Philip Morris v. Williams case for the Business and Media Institute. For other views, see Anthony Sebok (Brooklyn Law), Alan Morrison (Public Citizen), and Adam Cohen (New York Times). Morrison argues that the federal courts have no role in reviewing state-court decisions, which makes one wonder what his position is on habeas corpus. Cohen’s op-ed misstates what happened in Andrade, which was a case of collateral (and thus limited) review, rather than a direct appeal, like Williams, where a civil defendant does not even have the option of collateral review.

Earlier on Point of Law (from which this was cross-posted): Oct. 12; May 30; Feb. 2.

Update: The American Constitution Society press briefing on Philip Morris v. Williams (in which I participated with Peter Rubin, Neil Vidmar, and Bill Schultz) is now online.

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Hip-hop mag told to pay fired editor $15 million

Kimberly Ososio, canned from her job as an editor at The Source magazine, portrayed the magazine’s offices as a “raunched-out workplace where executives watched porn, smoked pot and called female employees “b——.” An attorney for the magazine admitted that coarse and profane language was common there but said it was aimed at all parties, “not a gender-specific conduct”. A jury agreed with Osorio’s claim that she was sacked for complaining about sexualized goings-on; she also complained of defamation, but lost on sexual discrimination and harassment counts. (Jose Martinez, “Hip-hop mag bagged”, New York Daily News, Oct. 24; The magazine already faces bankruptcy proceedings due to other business problems. (Leonard Greene, “Editor’s New ‘Source’ of Woe”, New York Post, Oct. 25; Peter Carlson, “Hip-Hop Editor Wins Suit Over Her Firing”, Washington Post, Oct. 25; Joshua Rhett Miller, “Ex-Source editor hopes ruling redefines rap”, Metro New York, Oct. 25).

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Another flasher’s-remorse case loses

Once again, second thoughts prove unavailing after modesty is cast to the winds: “A magazine that published a photograph of a woman baring her breasts at a pig roast for motorcycle enthusiasts did not intrude on her privacy, a federal judge has ruled. Tonya Barnhart sued Paisano Publications LLC, publisher of Easyriders magazine, after it ran the picture of her in its March 2005 issue, claiming unreasonable intrusion, false light invasion of privacy and appropriation of her likeness.” But U.S. District Judge J. Frederick Motz of Maryland ruled against Barnhart on summary judgment. Her behavior “cannot reasonably be said to have constituted a private act,” Motz wrote. “She exposed herself at an outdoor fundraising event open to any members of the public who purchased a ticket.” (“Judge: Photo of woman baring her breasts didn’t violate privacy”, Examiner.com, Oct. 23; “Woman Can’t Sue Magazine After Flashing Breasts”, AP/WBAL, Oct. 23; link to Memorandum and Order). Similar: Jul. 4, 2006, etc.

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