John Tierney is challenging some common environmentalist presumptions at his New York Times blog (Jun. 12).
Archive for June, 2007
Keeping of caged birds
…could soon be banned in Norway under pending animal welfare regulations. (“May ban caged birds”, Aftenposten, Jun. 13).
AutoAdmit message board lawsuit
The controversy over bathroom-graffiti postings at the law student site Autoadmit/xoxohth.com (May 3, May 20) has now developed into litigation:
two [unnamed] female Yale Law School students have sued Anthony Ciolli, the Web site’s former “chief educational director,” and more than two dozen others who allegedly used pseudonyms and posted the students’ photos as well as defamatory and threatening remarks about them on the online law-school discussion forum.
(Amir Efrati, WSJ Law Blog, Jun. 12). Lawprofs David N. Rosen (Yale) and Mark A. Lemley (Stanford) are assisting the plaintiffs, and Rosen told the WSJ Law Blog in an interview that the case was about “bringing the right to protect yourself against offensive words and images into the 21st century,” calling the postings “the scummiest kind of sexually offensive tripe.” Discussion: Eugene Volokh, Ann Althouse , Glenn Reynolds, David Lat, Patterico.
Speaking in Austin June 20, and Houston June 21
I’ll be speaking at Federalist Society events Wednesday, June 20 in Austin and Thursday night, June 21 in Houston on the issue of contingent fees in class actions. Other speakers include the Charles Stuckey of State Farm, Brian Anderson of O’Melveny & Myers, and (one hopes) a plaintiffs’ attorney to be named later. I hope to see lots of Overlawyered readers there.
Nastygram over renting out DVDs
Travis Corcoran gets an “angry and curt” call from an intellectual property lawyer over this practice, and reacts with some ferocity (TJIC, May 17).
U.K.: Clown told to stop blowing bubbles
Sheffield, U.K.: “Tony Turner, also known as Barney Baloney, will now stick to clowning and juggling after being refused insurance by several companies which feared youngsters might slip on the bubbles’ residue.” (Paul Stokes, “Safety mania bursts clown’s bubbles”, Daily Telegraph, Jun. 15). Earlier on clown liability, also from the U.K.: Apr. 9, 2001.
“Relapses Seen As Patients Abandon Treatment in Response to Negative Law Firm Ads”
A study commissioned by the National Council for Community Behavioral Healthcare and Eli Lilly and Company found that “even when patients were responding well to their prescribed antipsychotic treatment, many requested a medication change because these drugs are featured in law firm advertisements. Other patients stopped taking their medication, often without telling their psychiatrist, for the same reason.”
“Many of our patients already struggle with accepting their illness and staying on their prescribed treatment, and now they are experiencing new levels of fear due to the increasing incidence of these jarring advertisements,” said Dr. Ralph Aquila, assistant clinical professor of psychiatry, Columbia College of Physicians and Surgeons; director, residential community services, St Luke’s-Roosevelt Hospital Center, New York, NY. “This irresponsible advertising is hindering the progress of therapy for many of these patients and disrupting the important relationship between them and their healthcare providers. Plaintiffs attorneys need to consider the consequences that these advertisements may have on patients.”
Twenty-six percent of relapses led to suicide attempts. “Thirty-one percent [of psychiatrists] found patient resistance to starting medication due to concerns generated by law firm advertisements challenging, while 28% are concerned about malpractice risk if they prescribe a drug that’s the focus of product liability litigation.” (Cross-posted from Point of Law)
Girls Gone Litigious
Famous excuses: “I didn’t know it was loaded.” “It’s not mine; I was just holding it for a friend.” “It was like that when I got here.” “Nobody told me that fast food could make me fat.” Oh, and this classic, beloved for millennia by authors, screenwriters, and trial lawyers alike: When I climbed upon the Girls Gone Wild tour bus and they filmed me taking my clothes off and having sex, I didn’t think they were going to use the footage.
That last one is the excuse that two Florida women are using in the lawsuit they filed against Girls Gone Wild this week for using their sexual antics in one of its Spring Break videos. (Well, yes, they did take off their clothes for the camera, but they didn’t think that GGW was going to sell the video. And they didn’t consent. Well, maybe they did, but if they did, they revoked their consent. Besides, they were drunk. And that’s the producers’ fault, because they gave these women alcohol.)
It’s not as if one should necessarily feel great sympathy for Girls Gone Wild — its founder, Joe Francis, seems to be a less-than-upstanding individual. But who’s more exploitive? The guy who films drunk people at spring break doing what drunk people at spring break always do? (And unlike in some cases of this type that we’ve covered, the plaintiffs were adults at the time of the filming.) Or the people who wait to see how much money he makes — according to the story, the video in question was published back in 2003 — and then charge to the courts to extract it from him with incredible claims?
(Previous Girls Gone Wild coverage: Aug. 2006 and links therein)
Dog bites taxpayers
In 2002, a couple of Rottweilers attacked and seriously injured Marguene St. Juste, a woman in Delray Beach, Florida. Last week, the jury awarded this woman $3.76 million for her injuries. Routine — if expensive — dog bite case, right? The patented Overlawyered twist? The jury decided that the owner of the Rottweilers, who had allegedly repeatedly allowed the dogs to run free, was only 40% responsible for this tragedy. The other 60% of the blame — no, not the dogs, or the victim, or the doctors who treated her, or anybody obvious like that. Rather, the majority of the responsibility was assigned to the city of Delray Beach, Florida.
(The allocation of fault might call into question the value of defense attorneys; the dogs’ owner didn’t even bother to defend herself, and defaulted in the case, while the city defended itself vigorously. And yet the city bore the brunt of the verdict. Of course, a plausible alternate explanation is that the plaintiff simply picked on the deepest pocket, and the jury went along out of sympathy.)
The city was blamed based on the theory that the city knew that the dogs were running loose — the city disputed this, arguing that they never actually witnessed the dogs unsecured — and failed to impound them, as its city ordinance required. But even if the allegations against the city are true, how can it make the city more liable than the owner?
More importantly, why should it make the city liable at all? It doesn’t in other contexts; you can’t sue the police for failing to arrest a dangerous criminal, for instance. (It’s well-established that the police do not have a legal duty to protect you, absent special circumstances.) Once again, we see trial lawyers perversely arguing that an inconsistently-followed safety rule should make a defendant more liable than not having a safety rule at all. If Delray Beach had no animal control ordinance, it could not have been sued under these circumstances. But because it had one, taxpayers rare on the hook for up to $2.2 million. Now, we don’t expect trial lawyers to care about the incentives that their lawsuits create; after all, they’re just in this game for the money. But shouldn’t our legal system factor in these public policy considerations?
(I should note that there is one circumstance in which it is logical to punish a defendant for not following its safety rules: when an injured party took an extra risk in reliance upon the safety policy, and then the defendant failed to follow that policy. But that’s not the situation presented here. The victim wasn’t attacked by the dogs because of the policy.)
Pearson penultimate (?) update – the trial ends
The second day of the Roy Pearson pants trial happened yesterday; the Washington Post had another blog post from the scene of the trial. Highlight (or perhaps lowlight?):
It took more than 10 minutes and numerous attempts by both Manning and Judge Judith Bartnoff to get Pearson to answer a question about whether anyone has the right to walk into any cleaners and claim $1,150 simply by saying that their suit had been lost. Finally, Pearson said that the law requires that “The merchant would have an obligation to honor their demand.”
“So your answer is Yes?” Manning asked.
“Yes,” Pearson said.
The courtroom, in which it’s hard to discern any support for Pearson except from his mother and her friend, broke up in laughter. Derisive laughter.
Manning pushed ahead: Does Pearson believe that people should interpret signs “in a reasonable way?”
“Depends on the circumstances,” Pearson said.
Asked to answer yes or no, Pearson said, “No.”
According to the Post’s blogger, the trial is over, and now we just have to wait for the judge’s verdict, which should arrive next week. It’s risky to rely upon media coverage of a trial, particularly from non-lawyer journalists, but from the sound of things, the judge wasn’t significantly more impressed by Pearson than the rest of the civilized world was. (She did throw out one of his claims right away — his claim that “Same Day Service” was fraudulent because not all cleaning was done in one day even when the customer didn’t ask for it.)
Keep in mind that the defendants apparently made a formal offer of judgment in the case, in the neighborhood of $12,000 or so. So if Pearson wins, but wins less than that amount, he may be on the hook for all of the defendants’ legal fees over the last year and a half. Since those fees would amount to far more than the case was worth, it would be poetic justice.
Of course, nothing prevents Pearson from appealing! (Knock on wood.)
Update: Several readers have pointed out to me that the District of Columbia’s Offer of Judgment rule is less generous than the one I’m most used to; while the plaintiffs can recover their costs, these costs do not include attorney’s fees. Therefore, the Cleaners may be able to partly recover their expenses, but only partly.