Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2007

“Flood” of Avandia litigation?

This week, NEJM released a meta-analysis that, after omitting six studies where there were no cardiac events, found a barely statistically significant relative risk of 1.43 of myocardial infarction from long-term use of diabetes drug Avandia (rosiglitazone). (A slightly higher relative risk of death from cardiac causes was not statistically significant, though also just barely.) Reuters reports that plaintiffs’ lawyers are deciding whether they can create a mass tort litigation against GlaxoSmithKline, though some already confidently predict that they will (which suggests how important the supposed due diligence required by the rules and being conducted now is). Note that a relative risk of 1.43 means that 70% of people who suffered heart attacks while taking Avandia would have had heart attacks anyway. Avandia’s warning label already warned of the risk of cardiovascular adverse events. (Cross-posted from Point of Law)

Update: Interesting analysis at one of the medical blogs.

So you want to be in pictures

Did you ever watch a movie and think, “I could have made that movie”? Well, if actually making the movie proves to be too difficult, here’s an alternative strategy: you could just write to the Internet Movie Database and demand that they give you credit for having produced it. But, unfortunately for those of you who like to take shortcuts, it turns out that IMDB has this silly policy of only crediting people for their work on a movie when those people appear in the movie credits.

So, there’s always Plan B: sue IMDB. That’s what David Kronemyer did. He wanted to be credited as executive producer of hit movie My Big Fat Greek Wedding, B-movie Wishcraft, and TV-movie Stand and Be Counted. (I’m ashamed to admit that I’ve actually seen Wishcraft; I think the people who should sue are the ones who did get blame credit for making it.)

Fortunately, this story had a reasonably happy ending: Kronemyer was sanctioned by the California judge hearing the case for bringing a SLAPP suit, and ordered to pay $6,270 to the IMDB to compensate it for attorney’s fees. (Although, as Shaun Martin notes, that probably doesn’t fully compensate the IMDB.) The fact that Kronemyer had virtually no evidence to support his demands presumably didn’t help his case; he had a document showing that at one time he might have been involved with My Big Fat Greek Wedding, and nothing at all for the other two movies. But this complete lack of evidence didn’t seem to deter Kronemyer; he actually appealed the lower court’s dismissal of his lawsuit. The court of appeals wasn’t impressed (PDF).

Kronemyer represented himself, so it might seem unfair to blame lawyers for this one — except that Kronemyer’s a lawyer himself. Well, sort of; he actually resigned from the bar with unspecified disciplinary charges pending.

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Fining the wrong party, criminal edition

We regularly complain about the fact that the legal system is unable — or at least unwilling — to police attorneys who violate the rules. But this failure is not limited to the plaintiff’s bar in civil cases. Lawrence Floyd was a prosecutor in Cuyahoga County who, according to the judge, “deliberately committed prosecutorial misconduct” by making unconstitutional remarks at a murder trial, forcing the judge to declare a mistrial.

His punishment? A $26,000 fine — the amount that a new trial will cost taxpayers. Sounds reasonable, right? Not quite: the judge declined to fine Floyd; instead, she fined taxpayers that amount of money. That’ll show him.

(via Crime & Federalism)

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Oz: “Bullied teen awarded income for life”

Australia: “A bullied teenager will receive substantial damages and an income for life after a Supreme Court judge found NSW educational authorities failed in their duty of care to deal with playground assaults and bullying.” The court heard testimony that Benjamin Cox, now 18 years of age, was severely bullied at school by an older, disturbed pupil. ‘In her judgement, delivered today, Justice Carolyn Simpson commented that Mr Cox’s “adolescence has been all but destroyed; his adulthood will not be any better. He will never know the satisfaction of employment. He will suffer anxiety and depression, almost certainly, for the rest of his life'”. Cox’s mother said that because of the bad experience with classmates her son “didn’t like crowds, he didn’t like teachers, didn’t like the work,” and “just locks himself in his room playing PlayStation games”. The New South Wales state government may appeal the A$1 million verdict. (Leonie Lamont, Sydney Morning Herald, May 14; “Govt considers appeal on bullied boy”, AAP/Melbourne Age, May 22).

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“Spyware maker sues antispyware maker”

“An outfit accused of having a long history of making spyware has sued PC Tools, the maker of Spyware Doctor for preventing its product from working.” (Nick Farrell, The Inquirer, May 21). Reports InfoWorld:

According to a posting on a blog called Spamnotes.com, Zango is seeking at least $35 million in damages, alleging that Spyware Doctor removes Zango’s software without warning users that it will be deleted. The lawsuit was filed Tuesday in King County Superior Court in Seattle, according to Spamnotes.com.

Formerly known as 180solutions, Zango is trying to clean up its tarnished reputation. In November it paid $3 million to settle U.S. Federal Trade Commission charges that its software was being installed deceptively on PCs.

PC users have complained that the software has been installed without warning, forcing them to endure unwanted pop-up ads. The company has also been accused of tracking user behavior and making its software too difficult to remove.

(Robert McMillan, “Zango sues antispyware vendor PC Tools”, May 18; Slashdot thread; Grant Gross, “FTC settles with adware company”, InfoWorld, Nov. 3; Jeremy Kirk, “Reformed adware vendor still under fire”, Jul. 17; Slashdot thread, Jul. 10, 2006).

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May 22 roundup

  • Class action lawyer on the divvying up of $6.9M of attorneys fees among 79 attorneys: “There were two firms that . . . we generously gave a substantial award that really didn’t do anything for the common benefit.” But the award is still under seal; the Fifth Circuit is now considering. WSJ: “Unsealing the records would be a good first step, but Mr. Barrett’s statements suggest that the juiciest story is not how the money was divided among the lawyers, but how 79 lawyers extracted nearly twice as much from the defendant for themselves than they won for their 81,000 clients. Just another day at the office for the tort bar.” We reported Apr. 9. [W$J]
  • Street vendor sign of “180-degree coffee” reminds professor that McDonald’s coffee isn’t all that relatively hot. [Childs]
  • Briefing from the Pearson pants case (Apr. 26, etc.). [On Point]
  • FDA scandal! Or is it? Is it really the case, as some claim, that safety is never too expensive? [Point of Law]
  • Trial lawyers and Jay Angoff, at it again, incredibly accusing a non-profit mutual med-mal insurer of gouging. [RiskProf]
  • “Treating patients is a lot harder for this physician—and much less fun—in a climate of fingerpointing.” [Medical Economics via Kevin MD]
  • Are abuse victims squandering their moral authority? [Commonweal]

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Non-KFC “Family Feast” still OK

U.K.: Fast-food giant Kentucky Fried Chicken has backed off its attempt to browbeat the proprietress of the Tan Hill Inn in North Yorkshire into no longer billing her traditional Christmas dinner as a “Family Feast”. In a letter from its lawyers, Freshfields, KFC had claimed trademark ownership of the phrase. (Will Pavia, “Fast food giant is licked in battle with pub”, Times Online, May 11; Weigel, Reason “Hit and Run”, May 10).

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“Free expression gets smoked”

Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded “the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience.” But state governments “have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume’s next novel. …The MPAA’s response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control.” (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.

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“The Panhandler’s Payday”

Eddie Wise got along by cadging a dollar here and a dollar there from strangers in the Bronx. Not in a thousand years would he have dreamed of waking up with $100,000 in his pocket, had he not had the good fortune to be wrongfully arrested. Thanks, NYC taxpayers! (Jennifer Gonnerman, New York magazine, May 14).

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