Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2008

“Stifling free speech — globally”

Canada’s speech-tribunal censorship, writ large? “A coalition of Islamic states is using the United Nations to enact international ‘anti-defamation’ rules”. Among entities to protected from such “defaming”: religions.

Susan Bunn Livingstone, a former U.S. State Department official who specialized in human rights issues and also spoke to the July 18 congressional gathering, said the developments at the UN are worrisome. “They are trying to internationalize the concept of blasphemy,” said Livingstone at the panel. She contrasted “the concept of injuring feelings versus what is actually happening on the ground — torture, imprisonment, abuse.” And, she added, “They are using this discourse of ‘defamation’ to carve out any attention we would bring to a country. Abstractions like states and ideologies and religions are seen as more important than individuals. This is a moral failure.”

The fact that the resolutions keep passing, and that UN officials now monitor countries’ compliance, could help the concept of “defamation of religions” become an international legal norm, said Livingstone, noting that when the International Court of Justice at The Hague decides what rises to the level of an “international customary law,” it looks not to unanimity among countries but to “general adherence.” “That’s why these UN resolutions are so troubling,” she said. “They’ve been passed for 10 years.”

(Luisa Ch. Savage, Maclean’s, Jul. 23, via Rick Sincere). More from the author at her Maclean’s blog, with hundreds of reader comments, and from Somin @ Volokh.

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Claim: Abercrombie wouldn’t hire hijab wearer

The apparel chain, famed for the immodesty of its catalogues and advertising, has an “Abercrombie Kids” division; the allegation is that one of its Oklahoma store managers didn’t think an Islamic religious headscarf would fit the desired employee image. The local chapter of the Council on American-Islamic Relations says it has filed an EEOC complaint on her behalf. (PRNewswire/Breitbart, Jul. 31).

P.S. For another suit involving traditional Middle Eastern garb, see Jun. 17 (claim of right to wear loose-fitting garments around food machinery).

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Void our AP test results? See you in court

Orange County, Calif.: “Educational Testing Service said Trabuco Hills High students were allowed to talk, use study aids and send text messages.” So it voided test results for about 400 of them, and is being duly sued by a lawyer representing some. (Seema Mehta, “Testing group reveals why it voided AP exams of about 400 students at O.C. high school”, L.A. Times, Jul. 24).

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Update: Segway lawsuit against Disney

We missed this story in February, but a federal judge in Orlando threw out the suit (Nov. 13) claiming that Disney World discriminates against the disabled by not permitting Segway transportation devices. The judge didn’t reach the actual merits, but ruled that the plaintiffs hadn’t adequately established that they actually intended to visit the park. (UPI, Feb. 21).

Update to the update (5:30 p.m.): Matthew Heller of On Point News writes to say, “The Segway suit is actually alive and kicking. The plaintiffs filed an amended complaint and in May the judge denied a motion to dismiss, finding they had alleged ‘a specific intent to visit the Parks in the future.'”

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Darrell McGraw and his outside counsel

Analyzing the upcoming race between the incumbent, Darrell McGraw, and his clean-government opponent, Dan Greear, the West Virginia Record has an extensive story on the West Virginia attorney general’s habit of giving lucrative no-bid contingency-fee contracts to his campaign contributors, as well as holding on to settlement money for his own personal slush fund.  I am quoted at length and described as “widely regarded as one of the country’s leading voices in tort reform.”  Also notable are quotes from another “Washington, D.C.-based lawyer who has written articles about the need for reform.”  Kim Strassel also has a good piece on the subject in Friday’s Wall Street Journal:

To Mr. Greear’s advantage, his opponent is a case study of abuse in office. Mr. McGraw, in more than 14 years as West Virginia’s attorney general, has been a pioneer in the practice of filing questionable lawsuits against big companies, secretly doling out the legal work to outside trial lawyer friends who reap millions in fees. Those lawyers then turn around and donate heavily to Mr. McGraw’s re-election.

Polls show the public, in theory, disapproves. In a Tarrance Group survey last year, 75% of West Virginians think an attorney general should publicly disclose outside contracts with lawyers. Nearly 60% think attorneys should have to competitively bid for those jobs.

It’s this that motivates Mr. Greear. “I’ve watched what’s going on and thought: ‘If I were doing this to a client, I’d lose my law license.’ I don’t think any fair-thinking person can think this is good government, or good solid legal representation for West Virginia,” he tells me.

Also helping is that Mr. McGraw’s own sense of political immortality has recently landed him, and his state, in hot water. In 2001, he appointed four private law firms to sue drug companies for alleged deceptive advertising of OxyContin. Having forced a settlement in 2004, he handed his tort allies $3.3 million of the $10 million haul. Mr. McGraw had sued on behalf of state agencies (including the state’s Medicaid program) — yet his office kept the rest of the settlement money.

The federal government, which pays a significant portion of the state’s Medicaid bills, remains furious the program received none of the settlement, and is now threatening to withhold millions in Medicaid money. Mr. Greear is hitting hard on the uproar, using it to suggest Mr. McGraw has lost sight of why he’s suing companies, other than for the headlines.

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Update: Lawrence Poliner v. Texas Health Systems appeal

We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.

For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.

Read On…

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Johnson v. Allstate Insurance Co.: drunk driving for profit

Wayne Davis, Jr., had a .203 blood-alcohol level, when he drove his pickup across the center line of a Camden County, Missouri, highway on March 24, 2000, and crashed head on into the compact car of Edward and Virginia Johnson.

You’ll be happy to hear that the Johnsons didn’t try to blame the beer company or the auto manufacturer, and simply sued Davis. Davis’s insurer, Allstate, contacted the Johnsons’ attorney, David Sexton, in April, and asked for access to the Johnsons’ medical record. Sexton responded by demanding the policy limits. Allstate requested the medical records three more times, and finally got the records on December 20. (A Dan Margolies Kansas City Star article (via Childs) incorrectly says Allstate did not respond, but the court’s opinion says otherwise.) Allstate immediately agreed to pay the settlement limits, but now Sexton refused, saying his April offer had expired, and he now wanted $3 million from Allstate. We’ll let the Missouri Court of Appeals explain what happened next:

Read On…

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Defamation liability for print-on-demand services?

In a Maine federal case, the court ruled in effect that the book producer occupied a legal status more akin to that of a copy shop than to that of a traditional book publisher. As to the underlying dispute, Eric Goldman writes, “From my outsider’s perspective, it seems obvious that the Sandler and Calcagni families are locked in a cataclysmic downward spiral that will make some lawyers rich and will leave a lot of other people very unhappy for many years.” (Technology & Marketing Law Blog, Jul. 18).

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“Telling McDonald’s it can open franchises only in the white part of town”

William Saletan is appropriately appalled by the action of the Los Angeles City Council, which has moved to prohibit the opening of new fast food restaurants in South Central. Law and public health activists are trying to obtain similar legislation in New York and elsewhere, often pretending that they are not seeking to override the actual food choices of local residents. It’s a good idea not always to accept their factual assertions at face value:

“You try to get a salad within 20 minutes of our location; it’s virtually impossible,” says the Community Coalition’s executive director. Really? The coalition’s headquarters is at 8101 S. Vermont Ave. A quick Google search shows, among other outlets, a Jack-in-the-Box six blocks away. They have salads. Not the world’s greatest salads, but not as bad as a government that tells you whose salad you can eat.

(“Food Apartheid”, Slate, Jul. 31).

More: Several thoughts from Hans Bader, including this: “When Domino’s, a private company, decided not to deliver pizza and other fast food to certain dangerous parts of Washington, D.C., based on geographic region, not race, it was accused of racism by civil-rights groups, sued for discrimination, and demonized by D.C.’s City Council. … Why the double standard in favor of government bullies?” From commenter “Shine” at Matthew Yglesias: “What’s ironic is that many of the mom and pop restaurants were burned out during the 1992 riots. And the fast-food franchises promised two things that the post-riot LA political establishment (i.e., Rebuild L.A.) demanded above all else: minority ownership and jobs.” Another commenter there, “Too many Steves”, sniffs “a political favor to the existing franchise owners”, who stand to benefit from the throttle on competition, and whose interests of course diverge from those of the national franchisors, who are probably quite sincere in their opposition.

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