For those who care (Mike Riggs, Reason “Hit and Run”, Jul. 23, cybersquatting suit filed by the celebrity gossip blogger; The Smoking Gun, Jul. 15, Popehat, Jul. 16, suit filed against Hilton by woman whose nasty email he printed, causing her to lose her job since it was traceable to her work account).
Archive for July, 2008
$150,000 heartbalm award in Georgia
Wayne Gibbs and RoseMary Shell were engaged to be married. Gibbs gave Shell an expensive engagement ring, and $30,000 to pay off her debts, but discovered that her financial situation was considerably more precarious, and broke off the engagement. (Shell also alleges that Gibbs was cheating on her.) Shell sued, and a jury awarded $150,000. (“Hall Co. jury awards jilted bride $150,000”, WDUN, Jul. 23; ABC News, Jul. 23).
Of course, if the two married, and Gibbs filed for a no-fault divorce a couple of days later, Shell would have no cause of action. One of many reasons that breach of promise to marry suits are especially absurd in twenty-first century America.
Is patent gridlock keeping drugs off the market?
Readers know I’m sympathetic to the idea of patent reform, but I have to agree with Derek Lowe’s skepticism as he tears a hole in the Michael Heller story told to the WSJ Law Blog about an alleged Alzheimer’s drug that will “earn billions” but can’t be tested because of patent gridlock. A must read as he eviscerates the law and science behind that statement, and read the follow-up as well. As Lowe points out,
the safe harbor provisions of the 1984 Hatch-Waxman Act, as reaffirmed in the 2005 Merck v. Integra decision by the Supreme Court [protects] from infringement [claims] in the use of a patented compound for purposes of submitting regulatory filings. And the language of the ruling makes it look like it’s intended to cover all sorts of patented technologies as well.
July 25 roundup
- If you’re claiming benefits for “total and permanent” disability it’s probably best not to enter bodybuilding competitions [Boston Globe and more, firefighter Albert Arroyo] More: GruntDoc;
- From 1884 Montreal: actionable to snub a parishioner while taking collection in church? [Volokh]
- Follow the bouncing venue in lawsuits against Rick Frenkel and Cisco over Patent Troll Tracker blog [Texas Lawyer “Tex Parte” blog]
- Individual liberty was one reason Bill Gates was free to earn his billions, too bad he’s not doing more to advance it with his philanthropy [NYTimes, Bloomberg and “tobacco control”]
- Andrew Giuliani, son of the mayor, is suing Duke University for kicking him off its golf team [Newsday, Henican] More: complaint at Popehat;
- New at Point of Law: AAJ, formerly ATLA, has its convention in Philadelphia (more); bogeyman of supposedly ultraconservative Roberts Court; why must “trophy” federal courthouses have such soulless and uncomfortable design?; Congress gunning for arbitration; too bad NYT’s enthusiasm for transparent public contracting on corporate monitors doesn’t carry over to other lawyer-hiring; the Delaware advantage in court organization; as we keep asking, what happened to Ron Motley’s yacht? and much more;
- Dr. Anna Pou, New Orleans cancer surgeon whose prosecution after Katrina roused intense controversy, recounts her experience [AP via Folo]
- “Unreal world of greed”: California appeals court throws out $88 million fee-arbitration award to Milberg Weiss and other firms following challenge to “smog impact fees” [six years ago on Overlawyered]
Prosecutors Gone Wild
[A] large deal of the gleeful Spitzerfreude on Wall Street arose from of the poetic justice of Spitzer’s undoing at the hands of the same extra-judicial tactics he regularly used against Wall Street firms and corporate executives when he was attorney general of New York. The real scandal of Spitzer’s career was not so much the former Girls Gone Wild model as the prosecutors gone wild.
My retrospective of Eliot Spitzer as both archetype and victim of overaggressive prosecutors in the July/August American Spectator is now on line at the AEI website.
LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman
Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.
The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:
In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …
In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.
Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.
The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.
Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.
Here’s the full February 28 interview:
Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler
Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:
In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.
We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.
However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.
Yet more Edwards campaign-cash laundering
Big-league Arkansas trial lawyer Tab Turner did it, and was fined $9,500. Big-league Michigan trial lawyer Geoffrey Fieger did it, and managed to beat the rap at his recent trial. And now we learn that big-league California trial lawyer Pierce O’Donnell did it too: evaded limits on campaign contributions to John Edwards by reimbursing underlings to enable them to contribute. Would it be simpler to compile a list of the big Edwards backers who did obey the law? (WSJ law blog, Jul. 24). More on Edwards campaign finance shenanigans here.
Update Jul. 25, NLJ: O’Donnell indicted, based on a separate episode of laundering of contributions (to Los Angeles mayoral campaign of James Hahn).
Service animals, cont’d: “Ferret barred from Ottawa buses”
Continuing our theme, Frances Woodard has now lodged a complaint against the public transit authority in Canada’s capital city for barring the diminutive, weasel-like predator whose companionship, according to her psychiatrist, helps her stave off panic attacks. “A letter from OC Transpo customer relations sent in May said the decision was a result of fears about allergic reactions and phobias from other passengers and reactions from other animals, such as guide dogs.” (CBC News, Jul. 23). Monday’s post on the “service monkey” lawsuit from Springfield, Mo. is here.
Update: Willie Gary case against Motorola
Per AmLaw Daily, his trade secrets case against Motorola, on behalf of a now-defunct client named SPS Technologies, has settled for a sum far short of the $10 billion he sought. The case made headlines when a judge granted the Florida-based plaintiff’s potentate $23 million in sanctions against his opposite number, the law firm of Shook, Hardy & Bacon, though Gary had asked for $200 million in all. Reports AmLaw Daily:
The rising cost of fuel also has forced Gary to lease out his private jet — an aircraft appropriately named the “Wings of Justice II,” which includes an 18-karat gold sink and $1.2 million sound system — for $150,000 a month.
In late July, Gary told Scripps Treasure Coast Newspapers that fuel for the 32-passenger Boeing 737 costs $250,000 a month. A routine roundtrip flight to a city like Atlanta can run $35,000.