- “Definition of Insanity – Expecting Certification of a Personal Injury Class Action” [James Beck on oral contraceptive defective packaging litigation]
- “Noticed something strange. In jury selection, attorneys for two other defendants conferred with attorneys for the plaintiff.” [Madison County Record, more]
- Changes in federal discovery rules effective December 1 [Mathea Bulander and Jason Moore (Redgrave LLP), Washington Legal Foundation] More: Jeff Bennion, Above the Law.
- Eric Turkewitz takes issue with my reference to New York’s Scaffold Law in writing on Sheldon Silver’s downfall [New York Personal Injury Attorney Blog]
- Changes ahead for Rule 23, which governs class actions? [Andrew Trask]
- Behind the attacks on arbitration: plaintiff’s bar, key political player, is “fighting back hard” against threat to its interests [Daniel Fisher, earlier here, here, etc.]
- Not every hot-coffee-spill case is like Liebeck v. McDonald’s. Sometimes defendants actually are negligent [Nick Farr/Abnormal Use, earlier here and many others]
- Med mal something of a regional problem: nearly half of payouts are in Northeast, with New York alone paying out more than the entire Midwest [New Jersey Civil Justice Institute on Diederich Healthcare analysis] “Neurosurgeons were 50% more likely to practice defensive medicine in high-risk states compared with low-risk states” [Smith et al., Neurosurgery via NJCJI]
- New Paul Nolette book on state attorneys general Federalism On Trial includes history of suits led by New York’s Eliot Spitzer to redefine as “fraud” widely known drug-pricing practices that Congress had declined to ban or otherwise address. The resulting lucrative settlements also earmarked money to fund private critics of the pharmaceutical industry;
- City of Chicago signs on to one of the trial bar’s big current recruitment campaigns, suits seeking recoupment of costs of dealing with prescription opioid abuse [Drug & Device Law; earlier here, here, here]
- We here in Washington, D.C. take very seriously any violations of HIPAA, the health privacy law. Just kidding! If a union supporter pulls information from an employee medical database to help in an organizing drive, that might be overlooked [Jon Hyman on National Labor Relations Board administrative law judge decision in Rocky Mountain Eye Center]
- “Preferred Care defendants respond to New Mexico Attorney General’s lawsuit, argue it was filed at urging of Cohen Milstein law firm” [Legal NewsLine]
- Philadelphia police run warrant checks of hospital visitor lists, and as a result many persons with outstanding warrants avoid going to hospitals. So asserts sociologist Alice Goffman in her book On the Run, but the evidence is disputed [Sara Mayeux last August, Steven Lubet in review challenging the book more broadly on ethical and factual grounds, Goffman’s response]
- Making contraceptive pill available over the counter without prescription should please supporters of birth control access, right? Funny you should ask [Elizabeth Nolan Brown, Reason, earlier]
I wrote two posts at Cato on yesterday’s major Supreme Court decisions:
* Why Harris v. Quinn is a bigger deal than Burwell v. Hobby Lobby Stores (spoiler: constitutional vs. statutory interpretation).
* if you like what today’s Supreme Court conservatives just did, thank yesterday’s liberals, and vice versa. By the way, I suspect the abortion buffer-zone cases also fit this pattern. For several decades (down through the 1990s, maybe?) liberals would have generally been the ones relatively sensitive to the rights of street protesters, while conservatives were relatively sensitive to the case for a legitimate police-power role in protecting property owners/tenants from ongoing sidewalk occupation that might deprive them of peaceful enjoyment of their premises.
Earlier on Hobby Lobby here, etc., and on Harris v. Quinn here, etc. Welcome readers from SCOTUSBlog, Steve Stanek/Heartland, etc. And Virginia Postrel makes the case for making contraception over-the-counter, which would largely remove employers from the equation while widening access greatly.
- “Essentially, the agency wants to ‘protect’ patients from knowing about their own health” [David Rivkin and Andrew Grossman, USA Today, earlier] FDA-defying workaround lets you get your info even if 23andme’s muzzled [Ron Bailey]
- “Insane Department of HHS plan would criminalize lifesaving bone-marrow donor incentives out of woolly concern with ‘altruism'” [Steven Pinker, Sally Satel/Bloomberg, Michelle Meyer/Bill of Health]
- Affordable Care Act opens up funding stream for alternative medicine. The start of something big? [Kevin Williamson, NRO]
- On underused Gotham hospitals, de Blasio is in hole of his own digging [Bob McManus, City Journal]
- ADA lawsuit against hospital a harbinger of others to come? [Peoria Journal-Star]
- If goal is access to affordable contraception, making Pill available over the counter would seem good first step [Shikha Dalmia/Time, earlier]
- Home-health-aide overtime rules are bad news for seniors hoping to stay out of nursing homes, but AARP can’t shake its scripted role as loyal union ally [More: Free Beacon, from 2011 on AARP brief in state overtime case; earlier here, here, and here]
- “Blaming doctors for prescription drug abuse” [White Coat] Judge rules victim of pharmacy robbery can proceed with suit against doctor who prescribed painkillers [NYLJ]
- Louisiana Gov. Jindal’s proposal for letting contraceptives be sold over counter has good libertarian pedigree [David Henderson, Jonathan Adler] More: Ramesh Ponnuru.
- FDA vs. antiemetics: “How Long Before Zofran Gets Black Boxed?” [White Coat]
- ObamaCare vulnerable to an Origination Clause challenge? [Sandefur vs. Taranto, via Randy Barnett]
- “When a child drinks cologne, by all means, sue the doctor… ” [NJLRA]
- U.S. v. Caronia: does First Amendment protect promotion of off-label drug use? [Richard Epstein/Hoover, PoL, WSJ Law Blog, D&DL, Shackford]
- Ideas from John Goodman on med-mal reform [Psychology Today]
- How ObamaCare will drive up cost of contraception [Avik Roy] Better idea: sell Pill over the counter [Virginia Postrel, Bloomberg]
- Had been seized by authorities: obese 9-year-old returns home after dropping 50 pounds [Cleveland Plain Dealer, earlier]
- Best campaign funding mechanism ever? [Ron Paul Forums, JPG, more explanation; but is it lawful?]
- More appreciations of Bill Stuntz crimlaw book [Leon Neyfakh, Boston Globe, Stephen Smith and Jonathan Jacobs, Liberty and Law]
- Changes in court rules could curb Philadelphia’s allure for mass tort forum-shoppers [Alison Frankel, Reuters] “Further Empirical Evidence on Forum Shopping in Philadelphia Civil Courts” [Josh Wright, earlier]
- Coming: federal authority over private firms’ IT-security departments? [Jim Harper/Cato; Constantine von Hoffman/CIO]
- “0.1% claim rate in ‘successful’ class action” [Ted Frank/PoL, AT&T case]
“U.K. roundup” (perennial litigant), Jun. 12-15, 2003.
“‘Resumé spam saddles employers’“, Jun. 3, 2003.
Fair Labor Standards Act, overtime and employee classification suits, 2003: “Schools roundup“, Apr. 9. 2001: “Wal-Mart- as-‘cult’-suit: it is about the money“, Jun. 14. 2000: “Goodbye to gaming volunteers?“, Sept. 12 (& update Oct. 3); “Why rush that software project, anyway?” (California overtime law), March 29; “And so now everybody’s happy” (temps fired in wake of Microsoft decision), Feb. 17 (& see letters, Dec. 20); “Strippers in court” (challenge to independent contractor status), Jan. 28; “Microsoft temps can sue for stock options“, Jan. 11. 1999: “Don’t call us professionals!“, Oct. 1-3; “Click here to sue!” (AOL volunteers who want to be recategorized as employees), Sept. 7; “Do as we say (I)” (overtime suit filed against Justice Department on behalf of its own lawyers), Aug. 30; “Click here to sue!” (Seattle law firm offers easy way to sign up for labor law class actions), Aug. 19.
“It ain’t heavy to him, he’s my brother“, May 1-2, 2003; “Firehouse blues” (too-short firefighter), Feb. 20-21, 2002; “Non-pregnant rescuers, please“, Sept. 13, 2001; “Litigators vs. standardized tests, II: who needs sharp cops?“, Feb. 9-11, 2001; “Slow down, it’s just a fire” (Canadian high court strikes down firefighter speed test), Sept. 17-19, 1999; “Perps got away, but equity was served” (Lanning v. SEPTA: challenge to running test given to prospective transit cops), Sept. 15, 1999 (& Oct. 5-7, 2001, Oct. 25-27, 2002).
“U.K.: ‘Killer wrongly sacked for axe attack’“, Apr. 7-8, 2003.
“Maybe crime pays dept.” (annual roundup of weird employment and labor law cases), Apr. 1, 2003.
Their own petard, 2003: “Wellstone campaign didn’t buy worker’s comp for its employees“, Feb. 6-9. 2002: “‘Civil Rights Agency Retaliated Against Worker, EEOC Rules’“, Jun. 14-16; “‘Disability rights attorney accused of having inaccessible office’“, Apr. 25. 2001: “EEOC sued for age bias“, Mar. 6. 2000: “White House pastry chef harassment suit“, Sept. 18. 1999: “Do as we say (I)” (overtime suit filed against Justice Department on behalf of its own lawyers), Aug. 30 (more).
“Race-bias cases gone wrong“, Jan. 24-26, 2003.
“Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002.
Public employee entrenchment, 2002: “Munched zoo animals, gets six months severance” (Germany), Nov. 8-10; “Convicted, but still on their teaching jobs“, Jul. 10-11; “School told to rehire cocaine abuser“, Mar. 20-21. 2001: “‘Poor work tolerated, employees say’“, Nov. 15. 2000: “Reprimand ‘very serious’ for teacher” (had given 11-year-old girl money to buy marijuana), June 27; “‘Foreman who slept on job wins reinstatement’“, June 7; “From the labor arbitration front” (disallowed firing of Ct. town employee who pleaded no contest to larceny), March 28; “Not to be dismissed” (unfireable workers, Canada and U.K.), Feb. 25. 1999: “Better than reading a lunchtime novel” (IRS employee sues; fired for accessing taxpayers’ personal returns 476 times), Oct. 25; “Undislodgeable educators” (teacher peer review undermined by tenure legalities), Aug. 18.
“‘Nannies to sue for racial bias’” (U.K.), Oct. 30-31, 2002.
“Looking back on EEOC v. Sears” (sex discrimination, statistics and history), Oct. 28-29, 2002.
Appearance and authenticity, 2002: “‘Demand for more ugly people on TV’” (Norway: higher “ugly quotas” sought), Oct. 21. 2001: “Facial-jewelry discrimination charged“, Jul. 2; “Pregnant actress complains at being denied virgin role“, Jun. 21; “‘Fired transsexual dancers out for justice’“, Mar. 23-25. 2000: “Appearance-blind hiring?“, Dec. 26-29; “Latest female Santa case“, Dec. 13-14 (and see Dec. 18-19); “Wal-Mart wins female Santa case“, Oct. 12; “Next: gender-blind stage casting?” (theme restaurant’s hiring of males as “riverboat tough” food servers), Mar. 24-26.
“U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000.
“‘Inundations of electronic resumes pose problems for employers’“, Oct. 16-17, 2002.
“Right to break workplace rules and then return“, Sept. 16-17, 2002.
“Personal responsibility roundup” (workers’ comp told to compensate worker for his suicide attempt), Sept. 12, 2002; “‘Court upholds workers compensation for drunk, injured worker’“, April 6-8, 2001.
National origin, language on the job, 2002: “Hiring apple pickers = racketeering“, Sept. 9-10; “‘Surgeon halts operation over foreign nurses’ poor English’“, Jul. 25; “No ‘flood’ of Muslim or Arab discrimination complaints“, Jun. 17-18; “Must-know-Spanish rules defended“, May 28-29; “High court nixes back pay for illegal aliens“, Apr. 3-4. 2001: “Sued if you do dept.: language in the workplace“, Dec. 19 (& Nov. 17, 1999); “Competitor can file RICO suit over hiring of illegal aliens“, Dec. 13-14; “Opponents of profiling, still in the driver’s seat“, Nov. 2-4; “Employee’s right to jubilate over Sept. 11 attack“, Oct. 9 (& letters, Oct. 22). 2000: Christian Science Monitor on accent discrimination, see Dec. 18-19; “Green cards gather moss” (immigration delays), Feb. 4; “Back pay obtained for illegal aliens“, Jan. 10 (& Oct. 28, 1999). 1999: “52 green-card pickup” (rules against asking for too much documentation of citizenship in hiring), Oct. 29; “Say what?” (accent), Reason, November 1997.
“Ambulance driver who broke for doughnuts entitled to sue“, Nov. 2-4, 2001 (& Jun. 28-30, 2002).
“Not worth the hassle?” (Home Depot tries to avoid federal contractor status), Jun. 17-18, 2002.
“Advertisement for ‘friendly’ employee deemed discriminatory“, Jun. 10, 2002.
“Catharine MacKinnon, call your office“, May 16, 2002.
“Soap star: ABC wrote my character out of the show” (“medical leave” for drug rehab), Apr. 10, 2002.
“Will EU silence the pipes?” (occupational noise regulation), Mar. 8-10, 2002; “Britain’s delicate soldiery“, Dec. 22-25, 2000.
Retaliation: “Inability to get along with co-workers” (employer’s counterclaim as retaliation), Mar. 8-10, 2002; “Latest lose-on-substance, win-on-retaliation case“, Oct. 16, 2001; “Latest lose-on-substance, win-on-retaliation employment claim“, Jan. 25, 2000; “Employment-law retaliation: real frogs from ‘totally bogus’ gardens“, Sept. 29, 1999.
“European workplace notes“, Feb. 25-26, 2002.
“‘The Enron mythos’” (employee compensation, 401(k)), Feb. 15-17, 2002.
“‘UK women can demand to know men’s salaries’“, Dec. 28, 2001-Jan. 1, 2002.
“Menace of office-park geese“, Dec. 13-14, 2001.
“‘Halliburton shares plunge on verdict’” (law-firm whistleblowing), Dec. 10, 2001.
“An ill wind” (layoffs mean prosperity for employment lawyers), Dec. 4, 2001.
“Rejecting an Apple windfall” (race discrimination suit), Nov. 30-Dec. 2, 2001.
“Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8, 2001.
“In the mean time, let them breathe spores” (OSHA and anthrax), Nov. 6, 2001.
“Judge may revive ‘Millionaire’ ADA case” (Echabazal v. Chevron: employer’s right to turn away workers who would be injured by job), Nov. 5, 2001.
“‘Attorney Ordered To Pay Fees for “Rambo” Tactics’“, Oct. 5-7, 2001; “Even the chance of loser-pays helps keep ’em honest” (pilots’ union bid for back pay), August 12, 1999.
“Employment class actions: EEOC to the rescue“, Sept. 10, 2001.
“Not discriminatory to kick sleeping worker’s chair” (includes item on U.K. employee privacy), Sept. 3, 2001.
“Firefighter’s demand: back pay for time facing criminal rap“, Aug. 29-30, 2001.
“Negligent to lack employee spouse-abuse policy?“, Aug. 29-30, 2001.
“N.J. court declares transsexuals protected class“, July 30, 2001; “‘Fired transsexual dancers out for justice’“, March 23-25, 2001; “Columnist-fest” (transgender employee sues over no-skirt order), May 31, 2000.
Age discrimination law: “Research for lawyers, courtesy of their targets“, July 6-8, 2001; “EEOC sued for age bias“, March 6, 2001; “‘Toronto Torch’ age-bias suit” (stripper), May 23, 2000; “Take the settlement, sue anyway“, March 13; “‘Tenure Gridlock: When Professors Choose Not To Retire’“, March 3-5; “‘The case for age discrimination’“, Jan. 20, 2000; “Age-bias law expands” (Calif., N.J. developments), Aug. 12, 1999.
“Court says tipsy topless dancer can sue club“, Jul. 3-4, 2001.
“‘Hearsay harassment’ not actionable“, Jun. 12, 2001.
“Dispatches from abroad” (U.K. policeman claims snoring resulted from inhalation of cannabis), May 28, 2001.
“Six-hour police standoff no grounds for loss of job, says employee“, May 21, 2001.
“Letter to the editor” (arbitration agreements), Apr. 16, 2001.
“‘2000’s Ten Wackiest Employment Lawsuits’“, Apr. 13-15, 2001.
“‘Kava tea drinker alleges bias in FedEx firing’“, Mar. 19-20, 2001.
Ergonomics: “Narrow escape from ergonomic regs“, March 9-11, 2001; “‘Cop’s claim: gun belt too heavy’“, Feb. 23-25, 2001; “Born to regulate“, June 28, 2000; “Go ahead and comment — if it’ll do much good” (OSHA ergonomics regulations), March 17-19, 2000; “Repetitive motion injury Hall of Fame” (phone sex operator), Nov. 22, 1999.
“Forbidden paint zone” (New York City schools’ 10-foot rule), Feb. 27, 2001.
“Employees not tenured in California“, Feb. 7-8, 2001.
“Digital serfs?“, Jan. 26-28, 2001.
“‘Firms mum on troubled workers’“, Jan. 22-23, 2001.
Police-record discrimination: “Coming soon to a school near you” (applicant with police record OK’d since no convictions), Jan. 17, 2001; “‘Killer’s suit alleges job discrimination’“, Jan. 15, 2001; “You were negligent to hire me” (undisclosed rape-related conviction), May 30, 2000; “Hire that felon, or else” (Wisc. law protects felons from job discrimination), Jan. 7, 2000 (& earlier commentary: Sept. 24, 1999).
“Stressed out in New Hampshire” (stress from legitimate workplace criticism triggers workers’ comp), Jan. 4, 2000; “Stress of listening to clients’ problems” (masseuse wins benefits), June 21, 2000; “Weekend reading” (workplace psychological injury claims), July 31-August 1, 1999.
Damages, big numbers: “Big numbers” (Kroger Co. hit for $55 million after workplace accident), April 16, 2001; “Property taxes triple after wrongful-termination suit“, Dec. 20, 2000; “‘Stock Options: A Gold Mine for Racial-Discrimination Suits?’“, Dec. 11-12; “How to succeed in business?” (Christian Curry case), Nov. 20; “Wonder Bread hierarchy too white, suit charges“, July 10 (updates Aug. 4: jury awards $132 M damages and Oct. 10: judge cuts award by $97 M); “Penalty for co.’s schedule inflexibility: 30 years’ front pay” (ADA), June 16-18; “Record employment verdict thrown out” (Lane v. Hughes Aircraft), March 9, 2000; “From our mail sack: memoir of a morsel” (Calif. employer’s story), Nov. 24-25, 1999; “The stuffed-grape-leaf standard” (litigator says $300K isn’t that much money), August 14-15, 1999.
“Promising areas for suits” (broken interview promises, third party suits to sidestep workers’ comp limits), Dec. 7, 2000.
“Obese soldiers class action“, Nov. 10-12, 2000.
“New unfairness for old” (Employment Non-Discrimination Act), Oct. 26, 2000.
“Judge tells EEOC to pay employer’s fees“, Oct. 5, 2000.
“EEOC: offbeat beliefs may be protected against workplace bias“, Sept. 5, 2000.
“Losing your legislative battles? Just sue instead” (contraception coverage by employer health plans), July 26-27, 2000.
Coke: “‘Coca-Cola settles race suit’“, Nov. 17-19, 2000; “Class-action lawyers to Coke clients: you’re fired“, Jul. 21-23; “‘Coke plaintiff eavesdrops on lawyers; case unravels’“, Jul. 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke on behalf of clients, enters into a lucrative ad deal with it), May 11, 2000.
“Chutzpah is. . .” (marital-status discrimination case by boss’s ex-son-in-law), Jul. 18, 2000.
“Welcome readers” (CNNfn article advising workers thinking of suing employers; cites this site), Jun. 19, 2000; “Favorite bookmark” (head of Employment Policy Foundation likes this site), May 23, 2000.
“Look for the Kiwi label” (sweatshops), Jun. 9-11, 2000.
“Funny hats and creative drawing“, May 1, 2000.
“Employer-based health coverage in retreat?“, Mar. 31-April 2, 2000.
OSHA and at-home workers: “OSHA & telecommuters: the long view“, April 7-9, 2000; “Update: OSHA in full retreat on home office issue“, Jan. 29-30; “OSHA at-home worker directive“, Jan. 8-9; “OSHA backs off on home-office regulation“, Jan. 6; “Beyond parody: ‘OSHA Covers At-Home Workers’“, Jan. 5, 2000.
“Feds’ mission: target Silicon Valley for race complaints“, Feb. 29, 2000.
“Judgment reversed in Seinfeld case“, Feb. 26-27, 2000.
“Warn and be sued” (industrial psychologist found liable for warning co-workers of patient’s violent fantasies), Jan. 12, 2000; “Indications of turbulence” (pilot whose mental fitness for duty was challenged wins partial back pay), Dec. 1, 1999.
“Christmas lawyer humor” (“Restructuring at the North Pole” parody), Dec. 23-26, 1999.
“Truth in recruitment?” (N.J. jury verdict), Dec. 17-18, 1999.
“From the quote file” (Legal Times: U.S. Supreme Court as nation’s chief human resources manager), Dec. 15, 1999.
Under surveillance at work? “Hold your e-tongue” (employee emails), Nov. 9, 1999; “EEOC encourages anonymous harassment complaints“, Sept. 3; “Please — there are terminals present” (email censorship and harassment law), July 30; “‘Destroy privacy expectations: lawyer’” (advice managers are getting), July 26, 1999.
“Bring a long book” (New York takes average of seven years to adjudicate discrimination complaints), Nov. 4, 1999.
“Perkiness a prerequisite?” (bias suit says employer wanted workers to look like “Doris Day or the boy next door”), Nov. 2, 1999.
“New Jersey court system faces employment complaint“, Oct. 21, 1999.
“Blackboard jungle” (Ann Arbor, Mich. substitute teachers’ suit gets $30 million), Sept. 14, 1999.
“Labor Day: ‘Overworked America?’“, Sept. 7, 1999.
“Big numbers” (Kroger worker $55 million award not blocked by workers’ comp), April 16, 2001; “Block PATH to lawsuits” (claims against NY-NJ commuter line under Federal Employer’s Liability Act), Sept. 1, 1999.
“Ohio high court says forget tort reform; should unionists be cheering?” (unions exempted from exposure to many injury suits), August 17, 1999.
“You made me defame myself” (workplace defamation law doctrine of “self-compelled publication”), August 10, 1999.
“All have lost, and all must have damages” (suit against employer by insurance agent who sold allegedly deceptive policies), August 3, 1999.
|Other writings by Overlawyered.com‘s editor: The Excuse Factory: What Happened When America Unleashed the Lawsuit (Free Press, 1997); writings on disabled rights/ADA; on harassment and sex discrimination law; on other branches of discrimination law.|
“Texas’s giant legal reform“, Jun. 18-19, 2003.
Malpractice suit crisis, 2003: “Letter to the editor“, Jun. 20-22; “Docs leaving their hometowns“, Jun. 12-15; “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “Public Citizen’s bogus numbers“, Apr. 10-13; “Malpractice crisis hits sports-team docs” (& general roundup), Apr. 7-8; “Would you go into medicine again?“, Mar. 18; “‘Public deceit protects lawsuit abuse’“, Mar. 15-16; “One solution to the malpractice crunch“, Feb. 19; “Feinstein set to back Bush malpractice plan“, Feb. 12; “State of the Union“, Jan. 29; “Malpractice-cost trends“, Jan. 24-26; “ATLA’s hidden influence“, Jan. 21-22; “Playing chicken on malpractice reform“, Jan. 9; “‘Doctors strike over malpractice costs’” (W.Va., Pa.), Jan. 3-6. 2002: “Campaign roundup“, Nov. 4-5; “Pennsylvania House votes to curb venue-shopping“, Oct. 11-13; “Rumblings in Mississippi“, Oct. 9-10 (& Sept. 9-10); “Let ’em become CPAs“, Oct. 7-8; “Tour of the blogs“, Sept. 24; “You mean I’m suing that nice doctor?“, Aug. 1; “‘Bush urges malpractice damage limits’“, Jul. 29; “‘Trauma center reopens doors’“, Jul. 18; “Malpractice crisis latest” (Pa., Tex.), Jun. 11-12; “Sick in Mississippi? Keep driving“, Jun. 3-4 (& Apr. 5-7); “‘Rocketing liability rates squeeze medical schools’“, May 28-29; “‘The trials of John Edwards’“, May 20-21; “Ob/gyns warn of withdrawal“, May 17-19; “‘The Tort Mess’” (Forbes, etc.), May 13; “Texas doctors’ work stoppage“, Apr. 11 (& Mar. 15-17); “No more ANZAC Day marches?” (Australia), Apr. 1-2; “Scenes from a malpractice crisis“, Mar. 5; “Med-mal: should doctors strike?“, Jan. 21-22. 2001: “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Valley doctors caught in “lawsuit war zone”‘“, May 3; “Pennsylvania MDs drop work today“, Apr. 24; “Philadelphia juries pummel doctors“, Jan. 24-25. 2000: “Trial lawyers’ clout in Albany“, Oct. 4; “Malpractice outlays on rise in Canada“, Oct. 2.
Ob/gyn, 2003: “Juggling the stats“, Jun. 4-5; “Malpractice studies“, May 12; “‘Edwards doesn’t tell whole story’“, Mar. 4 (& letter to the editor, Mar. 31); “‘Delivering Justice’“, Feb. 27. 2002: “Ob/gyns warn of withdrawal“, May 17-19 (& see Jun. 11-12); “‘Support case hinges on failed sterilization’” (Ind.), Apr. 26-28; “Med-mal: should doctors strike?“, Jan. 21-22. 2001: “Fleeing obstetrics, again“, Dec. 21-23; “‘Wrongful life’ comes to France“, Dec. 11 (& updates Jan. 9-10, May 20-21, Jul. 1-2, 2002); “Meet the ‘wrongful-birth’ bar“, Aug. 22-23 (& letter to the editor, Sept. 3; more on wrongful birth/life: Nov. 22-23, Sept. 8-10, June 8, May 9, Jan. 8-9, 2000); “Pennsylvania MDs drop work today“, April 24; “Caesarean rate headed back up“, Feb. 5. 2000: “Birth cameras not wanted“, Oct. 18; “Plastic surgeons must weigh patients’ state of mind, court says” (roundup: anti-abortion suits), Aug. 15. 1999: “‘Trial lawyers on trial’” (Norplant, etc.), Dec. 23-26; “‘Your perfect birth control…blocked?’“, Aug. 11 (Norplant) (& update Aug. 27; company to settle 36,000 suits); “Yes, this drug is missed” (hospital admissions for hyperemesis tripled after lawyers drove Bendectin off market), Jul. 21.
“Malpractice studies“, May 12, 2003; “Radiologists: sue them enough and they’ll go away“, Nov. 2, 2000 (& see Sept. 24, 2002).
Nursing homes, geriatrics, 2003: “Florida: ‘New clout of trial lawyers unnerves legislators’“, Mar. 20; “$12,000 a bed“, Mar. 19. 2001: “Soaring medical malpractice awards: now they tell us“, Sept. 11; “‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17; “‘Nursing homes a gold mine for lawyers’“, Mar. 13-14. 2000: “‘Litigation grows in ailing nursing home industry’“, Jun. 20 (& see Mar. 2-4, 2001).
“Incoming link of the day“, Mar. 5-7, 2003.
Emergency medicine: “‘Trauma centers warn lives could be at risk’” (Orlando), Feb. 28-Mar. 2, 2003; “Ambulances, paramedics sued more“, Oct. 28-29, 2002; “Let ’em become CPAs“, Oct. 7-8; “Avoid having a medical emergency in Mississippi“, Apr. 5-7; “Scenes from a malpractice crisis” (closure of trauma centers), Mar. 5, 2002 (& see Jun. 11-12); “That’ll teach ’em” (Chicago EMS), Dec. 26-28, 2000; “Highway responsibility” (ambulance, hospital sued in Derrick Thomas crash), Nov. 28, 2000.
“The jury pool he faced“, Feb. 25, 2003.
“Take care of myself? That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.
“Medical mistakes” estimates, 2001: “Report: ‘medical errors’ study overblown“, July 27-29. 2000: “‘Report on medical errors called erroneous’“, July 11; “Medical mistakes, continued“, March 7; “‘Medical errors’ study“, Feb. 28; “Against medical advice” (Clinton proposals), Feb. 22 (& see malpractice law section below).
“Mercury in dental fillings“, Jul. 16-17, 2002 (& Nov. 4-5, 2002).
Psychiatry and allied fields, 2002: “‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘After stabbing son, mom sues doctors’“, May 31-June 2; “Counseling center may face closure” (Okla.), May 24-26. 2000: “Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “Legal ethics meet medical ethics” (lawyers advise schizophrenic murder defendant to go off his medication for trial), Feb. 26-27 (update, Mar. 2: he’s reported to have punched a social worker twice since going off medication; Mar. 29: jury convicts him anyway); “Latest excuse syndromes” (“Internet intoxication”, etc.), Jan. 13-14; “Warn and be sued” (clinical psychologist loses confidentiality suit after warning of patient’s dangerousness), Jan. 12. 1999: “Doctor sues insurer, claims sex addiction“, Oct. 13; see also personal responsibility.
“Artificial hearts experimental? Who knew?“, Oct. 23, 2002.
“U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000.
“Lawyers fret about bad image” (lawyers’ own poll finds public has much more confidence in doctors than in lawyers), Oct. 3, 2002.
“‘Patient pays price for suing over cold’” (U.K.), Sept. 20-22, 2002.
“‘Doctors hope fines will curb frivolous lawsuits’“, Sept. 6-8, 2002; “The doctor strikes back” (neurosurgeon countersues), June 14-15, 2000; “‘Truly egregious’ conduct” (court cites misconduct by attorney Geoffrey Fieger in suit against cardiologist), Sept. 14, 1999.
“Accident medicine”, 2002: “‘How to spot a personal injury mill’“, Aug. 19. 2001: “Lawyers (and docs) block cleanup of Gotham crash fraud“, April 2. 2000: “‘How do you fit 12 people in a 1983 Honda?’“, Aug. 23-25; “His wayward clients“, May 25; “Less suing = less suffering” (NEJM whiplash study), Apr. 24 (& update Jun. 26).
“‘The NFL vs. Everyone’” (medical privacy laws could restrict sports teams from commenting on players’ injuries), Jun. 13, 2002; “Promising areas for suits” (sports medicine), Dec. 7, 2000; “Doctor cleared in Lewis cardiac case“, May 15, 2000.
“‘Remove child before folding’” (AEI-Brookings study on defensive medicine), Jun. 5, 2002.
Managed care/HMOs, 2002: “‘Bad movie, bad public policy’” (John Q), Mar. 19; “Washington Post blasts HMO class actions“, Jan. 30-31. 2001: “Managed care bill: Do as we say…“, Sept. 7-9 (& Dec. 6, 1999); “Contrarian view on PBR“, Aug. 17-19; “Chapman, Broder, Kinsley on patients’ rights“, June 28; “Managed care debate“, June 26; “Columnist-fest” (Morton Kondracke), June 22-24; “Docs and Dems“, June 19; “Roundup“, May 21. 2000: “Patients’ Bill of Wrongs” (Richard Epstein), Oct. 27-29; “Fortune on Lerach“, Aug. 16-17; “Arm yourself for managed care debate“, April 20; “Employer-based health coverage in retreat?“, March 31-April 2. 1999: “Weekend reading: columnist-fest” (John McCarron), Dec. 11-12; “Actions without class” (Wash. Post editorial: “extortion racket”), Dec. 2; “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Aetna chairman disrespects Scruggs“, Nov. 18-19; “World according to Ron Motley” (world’s richest lawyer plans to sue HMOs, nursing homes, drugmakers), Nov. 1; “Deal with us or we’ll tank your stock” (managed care stock prices plunge), Oct. 21; “‘Health care horror stories are compelling but one-sided’“, Oct. 16-17; “After the HMO barbecue“, Oct. 12; “Power attracts power” (Boies joins anti-HMO effort), Sept. 30; “Impending assault on HMOs“, Sept. 30; “Rude questions to ask your doctor” (why are you helping trial lawyers make it easier to sue health plans?), Sept. 4-6; “From the fourth branch, an ultimatum” (leading trial lawyer vows to “dismantle” managed care), July 16.
“Bush’s big mistake on mental health coverage“, May 13, 2002.
“‘Big government ruined my long weekend’” (tide-over weekend prescribing), May 7, 2002.
“Lawyers stage sham trial aimed at inculpating third party“, Mar. 22-24, 2002.
“All things sentimental and recoverable” (veterinarians), Jan. 30-31, 2002.
Public health follies: “Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001; “Letter to the editor” (activist doctors vs. gun ownership), May 18, 2001; “‘P.C., M.D.’“, Feb. 23-25, 2001.
“Bioterrorism preparedness” (laws hobble hospitals), Oct. 30, 2001.
“‘Doctor liable for not giving enough pain medicine’“, Jun. 15-17, 2001.
“To destroy a doctor” (lawyer’s campaign against laparoscopic surgeons), June 6, 2001.
“Promising areas for suits” (laser eye surgery), Dec. 7, 2000.
Plastic surgery: “Plastic surgeons must weigh patients’ state of mind, court says“, Aug. 15, 2000 (& June 11, 2001: she loses); “Strippers in court“, Jan. 28, 2000; “No spotlight on me, thanks” (leading breast-implant lawyer obtains gag order against lawyers for dissatisfied clients), August 4, 1999; “Never saying you’re sorry” (implants), July 2, 1999.
“Turn of the screw” (pedicle screw lawsuits), Oct. 24, 2000.
“Disabled rights roundup” (obligatory sign interpreters at doctor’s offices), Sept. 29-Oct. 1, 2000; “From our mail sack: ADA enforcement vignettes” (interpreters, guide dog allergy case), May 31, 2000.
“Embarrassing Lawsuit Hall of Fame” (intimate injury; misdiagnosis charge), Aug. 14, 2000.
“Senator Lieberman: a sampler” (cost of defensive medicine), Aug. 8-9, 2000.
“And don’t say ‘I’m sorry’” (nurse’s first-person account), June 21, 2000.
“Can’t sue over affair with doctor” (court rules it was consensual), June 13, 2000.
“Jumped ahead, by court order” (residency), May 31, 2000.
“Rhode Island A.G.: let’s do latex gloves next“, Oct. 26, 1999.
“Michigan high court upholds malpractice reform“, August 6, 1999.
Other resources on medicine and litigation:
Good general links pages on health law are provided by the St. Louis University Center for Health Law Studies and by the whimsically named but highly useful Health Hippo.
Marc Arkin, “Products Liability and the Threat to Contraception” (Manhattan Institute Civil Justice Memo, February 1999).
L. William Luria, M.D., and Dennis G. Agliano, M.D., “Abusive Medical Testimony: Toward Peer Review“, describes efforts under way in Hillsborough County, Florida, to apply principles of peer review to the control of irresponsible or unqualified forensic testimony by medical professionals.
Walter Olson, “Lawyers with Stethoscopes: Clients Beware” (Manhattan Institute Civil Justice Memo, 1996) (abusive litigation is also bad for the medical prognosis of claimants)
Breast implants: see separate page
Health Hippo vaccines section.
Peter Huber, “Dan Quayle, the Lawyers and the AIDS Babies“, Forbes, October 28, 1991 (liability and an AIDS vaccine).
Peter Huber, “Health, Death, and Economics“, Forbes, May 10, 1993 (“investment in vaccines remains far lower than it should be, given the huge benefits that vaccines provide”)
Walter Olson, “California Counts the Costs of Lawsuit Mania“, Wall Street Journal, June 3, 1992 (liability slowing research on AIDS vaccine).
Daniel Kessler and Mark McClellan of Stanford won the Kenneth Arrow Award in Health Economics in 1997 for their article “Do Doctors Practice Defensive Medicine?”, which “found that when states reformed malpractice laws to put caps on damages for pain and suffering, or to eliminate punitive damages, hospital expenditures for heart disease patients were reduced by about 5 percent, yet did not leave the patients with worse health outcomes.”
Richard Anderson, M.D., “An ‘Epidemic’ of Medical Malpractice? A Commentary on the Harvard Medical Practice Study“, Manhattan Institute Civil Justice Memo, July 1996 (shortcomings of famous study of medical care in New York hospitals).
Walter Olson, “A Story That Doesn?t Have a Leg To Stand On,” Wall Street Journal, March 27, 1995 (the famous “wrong-leg amputation” case).
In 1993, in a paper given at the annual meeting of the Association for Health Services Research, Daniel Mendelson and Robert Rubin estimated that defensive medicine practices in three areas alone — pre-surgical testing, fetal monitoring and skull x-rays — probably exceeded $2 billion a year, and estimated likely savings from “aggressive malpractice reform” at more than twice that amount. Perhaps in contrast (or perhaps not), a 1995 study of obstetrics in Washington state by L. Baldwin et al found no differences in practice between doctors who had been named in suits and those who had not. And Mark Hauser et al, “Fear of Malpractice Liability and its Role in Clinical Decision-Making” studied doctors’ reaction to hypothetical cases in which a patient’s file did or did not reveal a history of having sued physicians. They found that in cases where an earlier suit had been reported the doctors were modestly more likely to call in other doctors, to recommend hospital admission, to document a case “by the book” rather than rely on judgment, and to predict a bad outcome. Surprisingly, they did not order more tests or withdraw from cases more often when informed that a patient had a record of suing. The Hauser paper notes one possible cost of an over-hasty resort to hospitalization: “In psychiatry a defensive response might include a needlessly low threshold for involuntary hospitalization, where the patient’s liberty and autonomy are, in essence, sacrificed in favor of conservative practice for the sake of self-protection.”
The Michigan law firm of Garan, Lucow, Miller & Seward, P.C., which has a specialty in medical malpractice defense, maintains a comprehensive links page of resources in the field.
Among reform groups, the Health Care Liability Alliance is a nationwide advocacy group whose website offers a variety of useful materials on the case for lawsuit reform. Californians Allied for Patient Protection defends the Golden State’s MICRA limits on malpractice liability. CLYSIS is a Minnesota group working for medical liability reform. State medical societies, such as the Medical Society of the State of New York, often maintain law-related information at their websites.
September 9-10 — Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).
It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)
September 9-10 — Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (“Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)
September 9-10 — Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)
September 9-10 — Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)
September 6-8 — “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)
September 6-8 — Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)
September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (“Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
September 5 — “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)
September 5 — Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)
September 5 — A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press‘s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (“Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)
September 3-4 — By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)
September 3-4 — “Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)
September 3-4 — “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)
September 3-4 — 2002’s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ‘soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)
September 3-4 — A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (“Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times‘s editorialists joined the chorus (“Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)
September 20-22 — How sharper than a serpent’s tooth it is/To have a precociously musical child. “James Brown’s daughters have filed a federal lawsuit against the Godfather of Soul, seeking more than $1 million in back royalties and damages for 25 songs they say they co-wrote…. Even though they were children when the songs were written – 3 and 6 when ‘Get Up Offa That Thing’ was a hit in 1976 – Brown’s daughters helped write them, said their attorney, Gregory Reed.” (“Singer James Brown Sued by Daughters”, AP/Milwaukee Journal Sentinel, Sept. 18). (DURABLE LINK)
September 20-22 — “Patient pays price of suing over cold”. Salutary effects of loser-pays, cont’d: “A patient who claimed £227 damages from his doctor, insisting that she had given him her cold during an examination, was ordered to pay almost £1,000 in costs yesterday after his case was thrown out by a court. Trevor Perry, 47, sued Dr Helen Young for personal injury, stating that he went down with a sore throat, runny nose and a headache after a consultation with her when she had a cold.” (Stewart Payne, “Patient pays price of suing over cold”, Daily Telegraph (U.K.), Sept. 19). And don’t miss the very curious addendum to the case on the question of why Mr. Perry was observed running from the court with a jacket over his head (“The Broadsheets: Cold comfort”, Anorak, Sept. 19). (DURABLE LINK)
September 20-22 —Times on 9/11 fund. The New York Times editorially defends the federal 9/11 compensation fund from charges that its awards are inadequate in a way “especially prejudicial to high-income families”, who may be offered only a few million dollars of taxpayers’ money each. It is entirely legitimate, the paper believes, to seek to avoid “extravagant awards at the top”. We might add that if top-earning families want to feel secure in their living standards in case of disaster, the logical (and socially desirable) course is for them to make provision in advance through privately purchased insurance — which we suspect most of the higher-ups at places like Cantor Fitzgerald did in fact have in place. (“The Perils of Valuing Lives” (editorial), New York Times, Sept. 19). (DURABLE LINK)
September 18-19 — Claim: docs should have done more to help woman quit smoking and lose weight. “A Wilkes-Barre woman is suing several doctors at the Department of Veterans Affairs Medical Center, saying the physicians did not do enough to assist her in making life changes — including quitting smoking and losing weight — that might have prevented a debilitating heart attack she suffered.” Kathleen Ann McCormick’s suit “says the physicians knew she had multiple risk factors to develop heart disease” but dismissed her symptoms as “basically normal and non-life threatening” and failed to put her on aggressive anti-cholesterol medication, as well as failing to help her with the smoking and weight issues. (Terrie Morgan-Besecker, “Woman suing VA doctors”, Wilkes-Barre (Pa.) Times-Leader, Sept. 11). (DURABLE LINK)
September 18-19 — Voltaire spinning in grave. If you disagree with what someone says, but would defend to the death his right to say it, chances are you aren’t running things in today’s France. Prominent French author Michel Houllebecq (pronounced “Wellbeck”) went on trial this week for “inciting racial hatred” on the grounds that he had aimed contemptuous comments at Islam. The case, which evokes parallels with that of author Salman Rushdie, is “being brought by the largest mosques in Paris and Lyon, the National Federation of French Muslims (FNMN) and the World Islamic League. France’s Human Rights League has also joined them, saying that Mr Houellebecq’s comments amount to ‘Islamophobia'” (see Aug. 23-25) (Charles Bremner, “I attack … I insult”, The Times (London), Sept. 18; “French author denies racial hatred”, BBC, Sept. 17). More: Christopher Hitchens on the case (“The stupidest religion”, Free Inquiry, v. 21, #4). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)
September 18-19 — Canada: “Woman freezes, sues city, cabbie”. “A Winnipeg woman who nearly froze to death after a night of drinking is suing the city, emergency personnel and the taxi driver who dropped her at home.” Emergency workers left Kim Simon at her residence but “she was later found outside with her pants pulled down, her winter jacket open and a cut on her lip. The woman claims that emergency personnel and the taxi driver should have made sure Simon was safely inside her house before leaving.” (Canadian Press/Canada.com, Sept. 16). (DURABLE LINK)
September 18-19 — Mississippi: eyeing the exits. Washington Mutual, the giant lender and the nation’s largest thrift institution, “is in the process of suspending all its lending channels in the state of Mississippi due to litigation risk and other factors. ‘We are evaluating the litigation environment and business climate in the state,’ WaMu senior vice president and associate general counsel Jim Garner told MortgageWire. ‘That is why we are suspending loan originations.'” Last year a Mississippi jury hit one of the company’s subsidiaries with a $71 million verdict. (Origination News — will scroll off site’s front page soon). (DURABLE LINK)
September 18-19 — AVweb case and chatroom liability. Eugene Volokh (his site) comments regarding the litigation referenced below: “Incidentally, not supervising one’s chat room is *not* actionable, even if the chatters make libelous statements and you could have stepped in to stop them; that’s what 47 U.S.C. sec. 230 says, see also Zeran v. America Online (4th Cir.) (both available on Findlaw).” See also ChillingEffects.org, Mar. 8; summary of Zeran case, TechLawJournal. (DURABLE LINK)
September 16-17 — Free speech & web litigation: the theory…. Los Angeles Times columnist Norah Vincent, the target of a remarkably silly recent smear (summarized and refuted by, among others, Stuart Buck, Juan Non-Volokh and Megan McArdle) got so angry at her online attackers that she wondered aloud whether she should think of suing them for defamation. Our editor wrote in at her suggestion (Sept. 13) to offer some reasons why, no, she shouldn’t. (DURABLE LINK)
September 16-17 — Right to break workplace rules and then return. This summer the Ninth Circuit ruled that it was an unlawful violation of the Americans with Disabilities Act for a company to follow an otherwise neutral policy barring the rehire of employees who had been terminated (or resigned in lieu of termination) over violations of company rules. In the case at hand, an employee had resigned after testing positive for cocaine, had completed a rehabilitation program, and now wanted to return to the company. Although Hughes Missiles Systems’ rule did not bar the hiring of rehabilitated drug users as such, the court nonetheless ruled that “Hughes’ unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction. If Hernandez is in fact no longer using drugs and has been successfully rehabilitated, he may not be denied re-employment simply because of his past record of drug addiction.” (Hernandez v. Hughes Missiles Systems, No. 01-15512, June 11, 2002, write-up at Jackson Lewis site). Update Dec. 13, 2003: Supreme Court rules in favor of employer. (DURABLE LINK)
September 16-17 — Dave Barry on tobacco settlement, round III. Okay, maybe it’s easy to satirize (rounds I and II), but he still does it so well. “The underlying moral principle of these lawsuits was: ‘You are knowingly selling a product that kills tens of thousands of our citizens each year. We want a piece of that action!'” (“In War On Tobacco, money goes up in smoke”, Miami Herald, Sept. 15) (DURABLE LINK)
September 13-15 — Patriotic, or promotional? Mickey Kaus nominates this “Patriot Troll” and this “Twin Towers handbag” (appears as popup ad when link is clicked) as among the tackiest commercial tie-ins to arise from 9/11. We might also call to his attention this billboard from a personal injury law firm in Schenectady, New York (photographed by reader Steve Furlong) which isn’t going to win prizes for either taste or subtlety. (DURABLE LINK)
September 13-15 — “Epileptic ordered to pay £3,500 for contorted face”. “A man who suffers from epilepsy has been ordered to pay compensation to a student who was upset by his contorted face during a seizure. In a case described by an epilepsy charity as ‘like something you would see on the Ally McBeal show’, Edwin Young has been told to pay £3,500 to Yvonne Rennie for the mild post-traumatic stress that she suffered. Mrs Rennie sued after Mr Young suffered an epileptic fit while driving four years ago and crashed into her car at traffic lights in Perth.” In addition to awarding Mrs. Rennie £1,500 for slight personal injuries and £1,000 for a fear of driving that she had developed, the magistrate accepted that she had suffered emotional injuries from observing the contorted look on Mr. Young’s face during his fit, which made her think he was going to die. “Epilepsy Action Scotland described the case as ‘bizarre’.” (Auslan Cramb, Daily Telegraph (U.K.), Sept. 9).
Addendum: one of our less sympathetic readers calls to our attention this Sept. 13-dated press release and article from Epilepsy Action Scotland (EAS), describes it as proving that the above report is “not true”, and chides us for not referencing it in our original post. To begin with a minor housekeeping point, this reader is apparently unaware that items on this site dated “Sept. 13-15” will in most instances have been posted in the final hours of Sept. 12, so that a fair bit of clairvoyance would be required to anticipate the contents of a press release issued the next day (even in Scotland, which is a few time zones ahead).
More substantively, although it may well be that other press reports did misstate the Rennie/Young case, it is by no means clear that EAS is questioning the accuracy of the Daily Telegraph report linked above. Both EAS and the Telegraph (and our excerpt) make clear that the overall award arose in the context of a car crash and drew on a number of factors. EAS is at pains to emphasize that the court did not rule that “watching a seizure in itself [emphasis added] provides grounds to sue for compensation” absent some other entitlement to compensation such as a physical injury — and of course it’s a familiar practice in compensation systems to let mental injury piggyback on physical injury but not stand alone as a claim. The one interviewee quoted in the Telegraph piece as wondering aloud whether a bystander’s distress at watching a person collapse might stand alone as a damage claim was the spokesman for EAS itself (“Does this mean…?”). This makes it less surprising that the organization would four days later make a point of reassuring the public that, no, it probably doesn’t mean that.
Does Epilepsy Action Scotland, as our reader seems to think, now therefore regard the Rennie/Young case as some kind of overblown urban legend that should never have gotten play in the papers, and regret that its spokesman had been so critical of the ruling before? Quite the contrary: it makes clear the extent to which it continues to be alarmed and upset at the case (“we have forcefully put across the points that this is a shocking case”), it has called for investigations and organized protests, and it “has offered its full support if [Mr. Young] decides to pursue the matter” on appeal. Nothing inaccurate in our post that we can see. (DURABLE LINK)
September 13-15 — We have competition! Or at least sorta-kinda competition, from Colorado humorist Randy Cassingham. But the more the merrier, say we. (DURABLE LINK)
September 12 — Personal responsibility roundup. New York attorney Samuel Hirsch, who made big headlines a few weeks ago by filing a lawsuit on behalf of an overweight man against fast-food chains, has now added another car to the train in the form of a suit on behalf of several obese teens who “say the restaurant chain used marketing practices such as toy and value meal promotions to entice its patrons to eat the food.” (No! Not value meals!) “Mr. Hirsch said his clients ate at McDonald’s almost every day for at least five years. One teenager, who is 5-foot-9-inches tall, now weighs 270 pounds; another, who is 5-foot-3-inches tall, now weighs 200. The parents of the teenagers, either unemployed or on disability, filed the lawsuit on behalf of their children.” Note to parents: those benefit checks will stretch further if you teach kids how to make sandwiches at home (Ellen Sorokin, “McDonald’s marketing cited for teens’ obesity”, Washington Times, Sept. 10). Director Tom Grey of the National Coalition Against Legalized Gambling, who has been beating the drums for years in hopes of making the wagering business the next tobacco, hopes governors and attorneys general will pile on in support of the latest lawsuit by a compulsive bettor claiming his losses were the casino’s fault for luring him in (Rod Smith, “Gambling foes hope federal lawsuit will lead casinos into tobacco industry’s fate”, Gaming Wire/Las Vegas Review-Journal, Sept. 10). The Wyoming Supreme Court has ruled that an employee who tried to commit suicide after being depressed over a work-related injury can collect workers’ compensation from his employer for the injuries inflicted by his attempt (Brierley v. Wyoming, Aug. 14). And the editorialists of Canada‘s National Post applaud Ontario judges’ refusal to follow the lead of many American courts in making party hosts legally responsible if their guests drive away drunk (“Blame drunks, not hosts” (editorial), Sept. 5). (DURABLE LINK)
September 12 — “9/11 aid bill contains giant bonus for trial lawyers”. “Sacramento — Saying that it was primarily a bill to help families of Sept. 11 victims, Gov. Gray Davis on Tuesday signed a sweeping change in California tort law backed by trial lawyers, some of his biggest contributors. In a bill signing ceremony, the Democratic governor focused on only four paragraphs of the seven-page bill that allows relatives of the terrorist attacks more time to file civil lawsuits. Davis did not mention that the bulk of the bill — which extends from one year to two the filing period for all personal injury or wrongful death lawsuits in California — is opposed by more than 80 companies and business groups. They say the measure will sharply increase their insurance and litigation costs.” (Greg Lucas and Lynda Gledhill, San Francisco Chronicle, Sept. 11). (DURABLE LINK)
September 12 — No joy in Mudville. “Saying America’s favorite pastime had become a ‘nuisance’ to a northwest Houston man, a Harris County jury awarded him more than $75,000 Tuesday. ‘I’m happy that 12 people were in full agreement,’ said plaintiff E.S. Armstrong after the verdict was read. Armstrong filed a lawsuit in December 2000 in state district court against Baseball U.S.A., claiming games played on the group’s fields adjacent to his home in the Spring Shadows subdivision are too noisy and the field lights too bright. The lawsuit also claimed that baseballs from the fields, near Sam Houston Tollway and Gessner, twice crashed through Armstrong’s bedroom window.” Baseball U.S.A., a nonprofit group, may appeal. (Dale Lezon, Houston Chronicle, Sept. 11). (DURABLE LINK)
September 11 — Never forgotten. For this site’s commentaries from a year ago, begin here with Sept. 12 items and then scroll upwards. (DURABLE LINK)
September 30 — Australia: “Blind, disabled should be able to fly”. “The physically and mentally disabled may no longer be barred from becoming pilots or air traffic controllers. Eyesight and other medical tests imposed on flight crew have been found to be in breach of anti-discrimination laws.” In the wake of the finding by the federal Attorney General’s department, lawyers for Australia’s Civil Aviation Safety Authority have urgently applied to the Human Rights and Equal Opportunity Commission to allow an exemption to the federal Sex and Disability Discrimination Acts to permit medical tests and standards for pilots, flight navigators and engineers and air traffic controllers. (Matthew Denholm, News Corp./Daily Telegraph (Australia), Sept. 27). Yes, this reads like parody, but we have a sinking feeling that it is not, since the same general issue has given rise to considerable litigation in the U.S.: see our July 1998 column and later articles on safety and disabled-rights law. (DURABLE LINK)
September 30 — “Black eye for zero tolerance”. A hearing officer has ruled in favor of Teresa Elenz, a Pensacola, Fla. honor student who says she found a bag of pills on school grounds, in the latest Pensacola-area incident to draw media attention to the harshness of zero tolerance policies. Besides nail clipper and paring knife cases, there was this: “In 1998, a 12-year-old student at Sims Middle School in Pace was expelled for possession of drugs because he briefly held a Ritalin pill. Robert Starkie held out his hand when a student on his bus asked him to take something. When he saw it was a pill, he threw it out the window.” Nationwide, about 80 percent of school districts are estimated to have zero tolerance policies. (Jenny LaCoste, Pensacola News Journal, Sept. 29; Bill Kaczor, “Pensacola honor students win zero tolerance drug ruling”, AP/Bradenton Herald, Sept. 27). (DURABLE LINK)
September 30 — George Will on litigation reform. He uses Mississippi as his jumping-off point, but his overall message is broader: “nowadays punitive damages are, as Justice Sandra Day O’Connor says, quoting a 9th U.S. Circuit opinion, ‘limited only by the ability of lawyers to string zeros together in drafting a complaint.’ … So remember the candidates who support tort reform when you vote on Nov. 5.” (Washington Post, Sept. 29) (DURABLE LINK)
September 27-29 — Judge overturns $1.3 billion tobacco fee award. Big development on the tobacco-fee front: “A New York judge threw out a $1.25 billion legal fee award to attorneys who represented California in a $206 billion settlement between 46 states and the tobacco industry, saying the amount was ‘irrational'”. The award was to the so-called Castano Group of lawyers, who didn’t actually represent California — the state’s own lawyers did that — and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees — the high point of this effort coming when they managed to obtain what was effectively a commercial endorsement from then-sitting President Bill Clinton (see Mar. 9, 2001).
Note that this was a different proceeding from the case involving the tobacco lawyers representing New York itself, discussed recently in this space, who are also finding their fees subject to unwelcome review (see Jul. 30-31). This time the courageous judge was Nicholas Figueroa of New York State Supreme Court. (Daniel Wise, “$1.3 Billion Tobacco Attorney Fee Overturned”, New York Law Journal, Sept. 27; William McQuillen, “Court Throws Out $1.25 Bln Award to California Tobacco Lawyers”, Bloomberg.com, Sept. 26). Update May 25, 2004: appeals court reverses Judge Figueroa and reinstates award. (DURABLE LINK)
September 27-29 — After our own heart. Regarding Kansas City Royals coach Tom Gamboa, who was set upon and beaten by two fans last week during a baseball game at Chicago’s Comiskey Park: “Gamboa has been contacted by several lawyers who told him he could get money from the White Sox, but the coach doesn’t plan legal action. ‘The fault is with the two people who did it,’ he said. ‘I’m not one who looks to place blame. It’s nobody’s fault but the two idiots who did it.'” (“Gamboa’s hearing impaired since attack”, AP/Sports Illustrated, Sept. 24). Update Sept. 21, 2003: not quite so much after our own heart, it turns out, AP reports that Gamboa has filed suit not only against attacker but also stadium security and drinks concessionaire. (DURABLE LINK)
September 27-29 — Fen-phen settlement abuses: the plot thickens. Lawyers for all three lead parties in the $3.75 billion fen-phen diet drug settlement — the settlement trust, the class action lead plaintiffs’ lawyers, and defendant American Home Products — are asking the federal judge in charge of the case to “order an ’emergency suspension’ of all claims processing, and to reconfigure the entire process so that all future claims of actual heart valve damage will be audited.” They say a group of plaintiffs’ lawyers, with assistance from hired doctor-experts, are engaged in “systematic abuse” of the settlement claims process and have set up what is effectively a “production line” that has resulted in gross overdiagnoses of highly compensable heart conditions in claimants. One of the hired doctors, they say, “has earned some $2.5 million during the past year reviewing 10,000 echocardiograms for a consortium of firms led by Petroff & Associates. She did all this while continuing to see up to 80 patients a week and still participating in some, if not all, of her extracurricular activities.” Money drained from the fund for exaggerated or nonexistent ailments, they note, is not available to compensate genuinely injured users of the compound. (Shannon P. Duffy, “Fen-Phen: Are Claims Exaggerated?”, The Legal Intelligencer, Sept. 26)(see Dec. 28, 2001 and Feb. 25, 2002). More: lawyes respond to allegations (“Plaintiffs’ Lawyers Strike Back in Fen-Phen Settlement Case”, Oct. 3). (DURABLE LINK)
September 27-29 — Sued over 18 cents. A collection agency went after Wendy Ehringer of Seattle with a lawsuit demanding the grand total of 18 cents — plus $311.26 in attorney’s fees and other charges. The court recognized litigation abuse when it saw it and applied the equivalent of sanctions — but now Ehringer’s lawyer is claiming to have put $7,600 worth of time into fighting the case, which is itself rather curious. (Maureen O’Hagan, “Suit over 18 cents redefines ‘small-claims’ court”, Seattle Times, Sept. 26). (DURABLE LINK)
September 25-26 — Skating first, instructions later. Edmonton, Canada: “An Alberta man who crashed on in-line skates before his instructor could teach him how to use them has won damages from the store that arranged the lessons and rented him the wheels. In a decision that expands the controversial concept of ‘duty of care,’ Justice Donald Lee of the Court of Queen’s Bench held Skier’s Sportshop of Edmonton partly liable for Robert Rozenhart’s injuries — even though Mr. Rozenhart was told to wait for his instructor before setting out.
“The judge agreed Mr. Rozenhart’s foray was ill-advised, but he found fault with a general reassurance store staff gave him that morning that in-line skating is ‘very similar’ to ice-skating. Mr. Rozenhart … and his daughter … were scheduled to meet the instructor at 10 a.m. in a nearby park, but store workers told him that his instructor was running 15 minutes late and asked him to wait. But Mr. Rozenhart struck out on his own, clad in a cycling helmet, knee-pads and wrist protectors. Only after he was coasting down a paved trail did he realize he did not know how to stop.” As he soon learned to his cost, in-line skates do not brake the same way ice skates do. Lawyers for the family-owned store plan to appeal. (Charlie Gillis, “In-line skates rental store blamed for injuries suffered by novice”, National Post, Sept. 20). On Sunday our editor discussed this and other personal responsibility cases on Peter Warren’s radio show, based at Vancouver’s CKNW and broadcast in many Canadian cities. (DURABLE LINK)
September 25-26 — Investigate, but gently. Sued if you do dept.: “For the first time since the state supreme court told corporate New Jersey to root out sexual harassers or risk huge damages, a company is to be tried on a charge that it ensnared and fired an innocent employee without a fair and thorough investigation. A Middlesex County judge ruled Aug. 30 that a supervisor who had a consensual sexual relationship with a co-worker can pursue a claim that the company violated a public-policy mandate by discharging him for harassment he never committed.” (Henry Gottlieb, “Too Good At Purging the Workplace?”, New Jersey Law Journal, Sept. 13). (DURABLE LINK)
September 25-26 — How much did you say that Indian legend was worth? Flexing their political muscle with casino revenues and major campaign contributions, “Native Americans are pushing for new laws that would give them what could amount to veto power over certain development projects (mining, housing, shopping malls, etc.) impacting what are considered historically sacred sites.” Such a bill has sailed through the California legislature and onto the desk of Gov. Gray Davis. A mining exec grouses that the Quechan Tribe “considers everything from Los Angeles to the Arizona border and up to Las Vegas sacred.” (Brad Knickerbocker, “More rights for sacred sites?”, Christian Science Monitor/Arizona Daily Sun, Sept. 4; “California Native Americans Want Law Preserving Some Land as Sacred”, FoxNews.com, Sept. 21). (DURABLE LINK)
September 25-26 —The blame for suicide. Two Connecticut teenagers commit suicide in separate incidents sixteen years apart, and in both cases parents sue police departments for failing to protect the youths from themselves. Showing that the cops messed up, however, is not enough; if the jury lacks sympathy for the parents, the case is still in trouble. (Colleen Van Tassell, “When teen suicide doesn’t pay”, New Haven Advocate, Aug. 8). (DURABLE LINK)
September 24 — Tour of the blogs. The medical weblogs have been abuzz with discussion of the malpractice crisis in recent days; see MedPundit for interesting items on whether any doctor in his or her right legal mind should be reading mammograms these days (Sept. 21); on the shamelessness with which trial lawyer apologists deny that there’s any connection between the sums paid out on malpractice claims and the insurance rates charged to doctors (Sept. 20); and on whether penicillin would have been adopted as quickly in today’s liability climate (Sept. 17). Plus much more from RangelMD (Sept. 18 and Sept. 19); MedRants (whole category); and The Bloviator (Sept. 20). Also see Sydney Smith (MedPundit), “Law and Orderlies”, TechCentralStation, Sept. 24.
Meanwhile, newly launched blog The Staffer comments on a lawsuit on behalf of four minority seniors in Massachusetts high schools challenging statewide achievement tests. (Sept. 19; see Ed Hayward, “MCAS mess: Students’ lawyers to sue state over controversial test”, Boston Herald, Sept. 19). And “Robert Musil”, normally a calm and collected sort, gets downright angry at the way some supporters of the federal Title IX sports gender-quota scheme airily dismiss the plight of male “walk-ons”, students who would like to participate in sports though they aren’t of starting-team caliber. (Sept. 22). (DURABLE LINK)
September 23 — “Greek net cafes face ruin”. Police acting under a controversial law banning all forms of computer games have closed down internet cafes around Greece, confiscating computers as evidence. “A judge in the city of Thessaloniki had earlier thrown out the first case brought under the gaming law but prosecutors have appealed against the decision and launched a new crackdown. … The Greek Government passed legislation in July outlawing all electronic or mechanical games in a bid to stamp out an illegal gambling epidemic … The bill has been widely criticised for failing to distinguish between [electronic slot machines, known in British English as “fruit machines”] and mainstream computer games such as Counter-Strike and Age of Empires.” (Daniel Howden, BBC, Sept. 20). The bill bans the playing of computer games in private as well as public places, and on electronic devices of any sort, such as personal organizers and cell phones.
MORE: Rupert Goodwins and Matt Loney, “In Greece, use a Game Boy, go to jail”, ZDNet (UK), Sept. 3; unverified English translation of the law; Nikos Kakayanis, Overclockers.com forum, Sept. 4; “Greeks fight computer game ban”, BBC, Sept. 5; Dan Farber, “Who’s gunning for Game Boy and Google?”, ZDNet, Sept. 5. (DURABLE LINK)
September 23 — “Doctors find no evidence of mold as a toxic disease”. Burgeoning litigation on stachybotris in homes has far outrun the available science, according to the Texas Medical Association’s Council on Scientific Affairs. “Mold can cause reactions in people with allergies and asthma [said allergist/immunologist Wes Stafford]. But there’s no evidence that it causes other health problems or aggravates other existing health conditions, the report said.” Some families have won multi-million-dollar lawsuits over alleged mold-related health problems, and mold claims are considered a key factor in skyrocketing homeowners’ insurance rates in Texas and other states. (Janet Elliott, Houston Chronicle, Sept. 21). And see Christopher Wanjek, “It’s Everywhere”, Washington Post, Sept. 17; RangelMD, Sept. 17 and earlier posts. (DURABLE LINK)
September 23 — Annals of zero tolerance: “No scissors allowed at ribbon-cutting ceremony at Pittsburgh airport”. After all, they’re weapons, right? Officials were reduced to tearing the ribbon. (AP/Canada.com, Sept. 20). (DURABLE LINK)
September 8-10 — Netscape “Cool Sitings” of the day. Overlawyered.com was one of the picks on Thursday’s edition of Netscape’s much-surfed “Cool Sitings” feature. Their write-up: “Legal Shenanigans. If the joke: ‘What do you call 1000 lawyers at the bottom of the sea? A good start’ rings true for you, check out this site” (Sept. 7). And we’re also today’s (Friday’s) web pick of the day at the Memphis Commercial Appeal‘s “C.A. Eye“.
September 8-10 — …Than never to have been born at all. By a 4-3 margin, the Ohio Supreme Court has declined to let a 7-year-old with spina bifida sue her parents’ doctors on a claim of “wrongful life”. The little girl’s argument — at least, the argument put forth on her behalf in court — is that had the doctors told her parents about the availability of a prenatal test that would have disclosed her abnormality, they would have had an abortion, and that she suffered injury because they failed to do so. “Chief Justice Thomas J. Moyer, writing for the majority, said courts do not have the authority to decide if a person should or should not have been born.” Justices Paul Pfeifer, Andrew Douglas and Alice Robie Resnick dissented. (Spencer Hunt, “Girl has no right to sue”, Cincinnati Enquirer, Sept. 7; “Ohio Court Rules Against Parents”, AP/FindLaw, Sept. 7; decision, Hester v. Dwivedi) (see also May 9).
September 8-10 — “NZ kids get ‘license’ to play with toy guns”. “Children as young as four in New Zealand are being required to apply for ‘licenses’ for toy guns.” They must explain why they want one, and playing cops and robbers is not a good enough reason. (Sydney Morning Herald, Sept. 6). Also: an Australian radio talk show host, convicted of improperly soliciting information about the deliberations of a jury, was “given a 15-month suspended sentence … because the judge believed he was too wealthy to fine and too famous to jail.” (Stephen Gibbs, “Laws too famous to jail, says judge”, Sydney Morning Herald, Sept. 6).
September 8-10 — “A perverse use of antitrust law”. “The Justice Department could hardly have come up with a more harmful set of demands than those it now makes [on Microsoft],” writes Charles Munger, vice chairman of famed investor Warren Buffett’s Berkshire Hathaway. “If it wins, our country will end up hobbling its best-performing high-tech businesses. And this will be done in an attempt to get public benefits that no one can rationally predict.” (Charles Munger, Washington Post, Sept. 1). More: “Did Microsoft Harm Consumers? Two Opposing Views”, by David S. Evans, Franklin M. Fisher, Daniel L. Rubinfield, and Richard L. Schmalensee, AEI-Brookings Joint Center for Regulatory Studies (abstract, full text (PDF format), order form); David Boaz, “The theft of Microsoft”, Cato Daily, July 27; Jonathan Rauch, “The Microsoft Case: Fair, Necessary, and Totally Random”, National Journal, June 10.
September 8-10 — “State errors unfairly cast some dads as deadbeats”. A federal law has mandated toughening of state child support collection systems. Unfortunately, reports Marilyn Gardner of the Christian Science Monitor, the resulting overhauls have increased the rate of billing errors in some of the systems and led to parents mistakenly being labeled deadbeats (August 9).
September 8-10 — $1.5 million estate bill included 900 hours spent on fees. An Indiana appeals court has rebuked a law firm which billed heirs $1.5 million for handling an inheritance case, including 900 hours it says it spent calculating its fees. The Indianapolis law firm of Henderson, Daily, Withrow & DeVoe had worked on the estate of former Conseco Inc. executive Lawrence W. Inlow, who died without a will at age 46 in a helicopter accident leaving an estate of $185 million. “Requiring a client to pay an additional amount for being told what he owes in the first instance is neither good business nor good law,” wrote Judge Sanford M. Brook for the appeals court. (“Court Rejects Attorneys’ Charge”, AP/FindLaw, Sept. 7) (court opinion, Inlow children v. Estate of Inlow).
September 6-7 — Prosecution fears slow crash probes. Aviation accidents almost never used to result in the filing of criminal charges, but in recent years they’ve been the subject of several highly publicized prosecutions. A House Transportation Committee hearing in late July looked into evidence that fear of incarceration or fines is now discouraging witnesses from cooperating with crash investigators. “For decades, we had relied on individuals to tell us what happened in an accident — and they usually, sometimes reluctantly, do so,” said Daniel Campbell, managing director of the official National Transportation Safety Board. But “what has been reluctance to cooperate may become refusal to cooperate.” Campbell said prosecution fears had also made it hard to investigate a recent nonaviation accident, a fatal pipeline explosion in Bellingham, Wash., last year. As a result, “more than a year later, we still have not been able to talk to most of the key individuals who were operating the pipeline when it ruptured and may not be able to in the foreseeable future.” A federal grand jury subpoena also “resulted in a significant delay in the investigation,” Campbell said. “In our view, too much lawyering went on before we were able to test the physical evidence of that tragedy.”
“The recent trend towards the criminalization of aircraft accidents is extremely alarming in that it has the potential to cripple industry’s ability to learn from incidents and accidents, essentially guaranteeing that we will repeat them,” said Capt. Paul McCarthy of the Air Line Pilots Association. He cited the 1996 ValuJet crash in Florida, the USAir 1989 crash at LaGuardia, and the recent Alaska Air crash off the California coast as examples of cases where safety investigations had been slowed. (House Transportation Committee, Aviation Subcommittee, hearing summary, Campbell, McCarthy statements; thread on Professional Pilots bulletin board)
September 6-7 — Update: second chance for Wal-Mart. The giant retailer has won a rematch in the case of former employee Ricky Bourdouvales, who sued alleging discrimination based on transsexualism (male-to-female). Judge Douglas Hague issued a default judgment of $2.1 million when Wal-Mart failed to show up in his New Jersey court (see July 21), but has now agreed to grant a retrial. (“Judge Tosses Trans Bias Award”, PlanetOut, Aug. 28).
September 6-7 — Australian roundup. A now-retired New South Wales judge has come under criticism from the losing plaintiffs in a large case, who complain in their appeal that more than 200 pages of his 247-page opinion consist of material cut and pasted from the submissions made by the two sides. The judge had called the case, over the Copper-7 contraceptive IUD, the longest and most complex product liability case in Australian history. (“Judge ‘cut and paste’ in making his decision on IUDs”, AAP/The Age (Melbourne), Aug. 29). Five partners of a Sydney law firm that handles a large volume of immigration work are suing Immigration Minister Philip Ruddock for defamation, “claiming he implied they were unethical and overcharged clients.” (“Ruddock sued for defamation by lawyers”, AAP/The Age (Melbourne), Aug. 29). And a 1998 finding by a federal justice that a prominent Brisbane law firm engaged in abuse of legal process ignited a debate about the condition of the law in Australia; a national TV show explored widespread discontent over the gamelike aspects of adversary process, interviewing both leading insiders of bench and bar and two outspoken critics, former defense lawyer and prosecutor Brett Dawson and journalist Evan Whitton (“The justice system goes on trial”, Ross Coulthart, reporter, Sunday/NineMSN, Transcript #252, undated). One passage among many that caught our eye:
REPORTER: Do you think there’s a case to argue that some of the ethical rules that lawyers have actually almost encourage dishonesty among lawyers?
JUSTICE [GEOFFREY] DAVIES: Yes I do. One of the examples is that a lawyer can ethically deny an allegation in the opponent’s pleading knowing it to be true.
REPORTER: You’re kidding – so you can basically lie?
JUSTICE DAVIES: Well, what lawyers would say is that you are putting the other side to proof.
REPORTER: It’s a lie though isn’t it?
JUSTICE DAVIES: It is.
September 6-7 — Bill for pizza delivery: $1.25 million? A Cocoa Beach, Fla. jury voted, but a federal judge almost immediately threw out, an award of one and a quarter million dollars to a black family that ordered home delivery from Pizza Hut and found a racial slur included as part of the computer-generated receipt. Judge Patricia Fawsett ruled that responsibility lay with the unauthorized actions of a rogue employee and could not fairly be charged to the company. (“Judge throws out $1.25M verdict against Pizza Hut”, Orlando Sentinel, Sept. 1).
September 5 — EEOC: offbeat beliefs may be protected against workplace bias. “Belief in radically unconventional scientific notions, such as ‘cold fusion’ or cryptic messages from extraterrestrials, may merit the same workplace protections as freedom of religion, according to a ruling by the Equal Employment Opportunity Commission in a job-discrimination case.” The case arose from the April 1999 firing by the U.S. Patent and Trademark Office of patent examiner and astronomer Paul A. LaViolette, who claims the action was taken because he holds unconventional beliefs, including a belief in the highly controversial theory of energy generation through “cold fusion”. In the words of the Washington Post, LaViolette’s website, www.etheric.com, “details his ‘proof’ of the existence of alien radio communication, his theory that the zodiac is a ‘time capsule message’ warning of emanations from the galactic center and his views on the Sphinx, the Tarot and Atlantis, along with his considerable accomplishments in mainstream science.” (Curt Suplee, “EEOC Backs ‘Cold Fusion’ Devotee”, Washington Post, Aug. 23).
September 5 — Tax software verdict: pick a number. A Hinds County, Mississippi jury “awarded the state of Mississippi $474.5 million in its suit against a company that failed to deliver on a new tax processing system that was supposed to modernize the state’s collection efforts.” The verdict against Fairfax, Va.-based American Management Systems Inc. included $299.5 million in actual damages and $175 million in punitive damages. A few days later, the company settled the suit by agreeing to pay the state $185 million. The company has contracts with seven other states to operate similar computerized tax systems; no other lawsuits are pending. (“Company loses tax software suit”, AP/USA Today, Aug. 24; “Settlement cuts tax software verdict”, Aug. 29).
September 5 — Juries and cost-benefit analysis. W. Kip Viscusi, professor at Harvard Law, says businesses today get conflicting signals on the use of cost-benefit analysis in safety matters: a large academic literature encourages them to engage in such analysis as part of their responsibility to the public, but juries get furious when they think that sort of “cold-blooded calculation” has gone on. Moreover, there’s evidence to support the paradoxical finding that the higher a valuation of life and limb a company employs in such an analysis, the more stringently it will be punished by subsequent juries. (“The Trouble With Lawsuits”, TechCentralStation, May 29; Manhattan Institute, luncheon transcript).
September 4 — Emulex fraud: gotta find a defendant. “With the manhunt for the perpetrator of the Emulex fraud [false news report torpedoed company’s stock] apparently over, investors burned by the company’s $2 billion post-fraud swing are now hunting for someone, anyone, to sue for legal damages. Two lawsuits have already been filed, one against Internet Wire, which originally distributed the bogus press release, and one against both Internet Wire and Bloomberg, the financial news service that sent out a story based on the press release.” (Craig Bicknell, “Emulex Victims: Who Can We Sue?”, Wired News, Sept. 1).
September 4 — Record-breaking securities class action fee: $262 million. A federal judge in New Jersey last month approved a fee of $262 million for plaintiffs’ lawyers in the securities fraud case stemming from the collapse in the stock price of Cendant Corporation (see June 20). Judge William Walls upheld the record-breaking fee against objections from New York City, a member of the investor class, reasoning that the two lead law firms, New York’s Bernstein Litowitz Berger & Grossman and Philadelphia’s Barrack, Rodos & Bacine, had taken part in a fairly run auction to determine who would get to represent the investors. (Daniel Wise, “Cendant Lawyers Get Record $262 Million in Securities Fraud Case”, New York Law Journal, Aug. 22).
September 4– “Just put the candy in the bag, lady.” “I’ve been watching the lawsuits over Columbine with interest bordering on disgust. It seems the argument is that someone (preferably a government agent not affiliated with the Postal Service, or failing that, any random person with deep pockets) should have foreseen the future and intervened,” writes Paul Kelly, a former vice chair of the Boulder, Colo. Democratic Party. “…If this new ‘everybody’s negligent all the time’ social philosophy seems silly to you, it’s probably because you’re not a lawyer. To a lawyer this is like Halloween to a 10-year-old. ‘Just put the candy in the bag, lady. And hurry. There are still five families on this block I haven’t sued yet.'” (“Doing nothing may be best option”, Denver Post, Aug. 13).
September 1-3 — Texas tobacco fees: Cornyn’s battle. In December 1998 an arbitration panel awarded a stupendous $3.3 billion in legal fees to five law firms selected by former Texas Attorney General Dan Morales to represent the state in the tobacco-Medicaid litigation, which had ended in a $17 billion settlement. The Big Five firms, all high rollers in Lone Star State personal-injury litigation and all major Democratic Party donors, include Beaumont, Texas’s Provost & Umphrey (Walter Umphrey), Houston’s Williams & Bailey (John Eddie Williams), Harold Nix’s law firm in Daingerfield; Beaumont’s Reaud, Morgan & Quinn (Wayne Reaud); and John O’Quinn’s firm in Houston.
Mr. Morales’s Republican successor as Texas Attorney General, former Texas Supreme Court Justice John Cornyn, ran for office in part on a pledge to investigate the circumstances surrounding the fees, and his probe soon led to some eye-opening revelations (see May 22). A Houston lawyer named Marc Murr, who’d earlier worked at the same law firm with Morales, had stepped forward after the settlement to claim a $520 million (later $260 million) share of the proceeds, a mystifying claim since participants could not remember Murr doing work on the case or being considered part of the state’s team. Murr pointed to a hitherto unsuspected contract with Morales entitling him to a piece of the action, but Cornyn hired forensic experts who concluded that the contract had been doctored and backdated. Rather than be put under oath about the matter, Murr withdrew his claim to the fees; a U.S. attorney’s office has the matter under investigation.
As for the circumstances by which the Big Five came by their fees, Cornyn’s investigation has met with a stone wall of resistance and non-cooperation from Umphrey, Williams, Nix, Reaud and O’Quinn. In particular, he would like to investigate what the Houston Chronicle describes as “longtime allegations that [Morales] solicited large sums of money from lawyers he considered hiring” for the suit. Two years ago famed Houston attorney Joe Jamail, who wasn’t among those picked to represent the state, “said Morales solicited $1 million from each of several lawyers he considered hiring”, in addition to the $2 million that each of the five agreed to front to finance the case. “The money, according to memos prepared by Jamail, purportedly was for a fund to help Morales defend himself against political or public relations attacks from cigarette companies during the litigation.” Last year in sworn testimony Dawn Nelson, ex-wife of Big Five lawyer John Eddie Williams, said “Williams had told her that Morales wanted $1 million from one or more of the lawyers that were hired for the tobacco case,” the Chronicle reported.
In an interview last November cited in the same Chronicle reportage, Morales said that the purpose of the money might have been misunderstood and that he didn’t intend it to be used for his personal or political benefit. In May, the Five filed statements in court saying they had not paid any consideration for the chance to participate in the litigation. But they’ve consistently refused to go under oath to answer Cornyn’s questions, and skillful legal maneuvering on their behalf has kept at bay that alarming prospect — first by their successful removal of his legal action away from state court and into the hands of the same federal judge in Texarkana whom they initially selected to hear the Medicaid-recoupment case (see “Best little forum-shopping in Texas”, Aug. 27, 1999), and now with their obtaining of a ruling by that judge last month that Cornyn has no independent right to question the lawyers except under such terms as he, the judge, may see fit to approve in future (Cornyn plans an appeal of that ruling to the Fifth Circuit). The Five have also sought a gag order to prevent the press or anyone else from getting a look at documents generated by the investigation, notwithstanding the usual publicly proclaimed stand of organized trial lawyers that “protective orders” of that sort are an affront to the public’s right to know and serve only to shroud wrongdoing in secrecy. And, like other lawyers who have represented the states in the tobacco recoupment litigation, they have argued that the fees are not an appropriate subject for review by representatives of the taxpayers because they are formally structured so as to be paid directly by the cigarette companies, rather than be routed through the state as part of its payment as is customary.
The Big Five also claimed $40 million in reimbursement for out-of-pocket expenses (as distinct from legal fees) but at the end of May they returned $6.9 million of this money, saying the earlier sum had been overstated. “Their misrepresentation of expenses just raises more questions and strongly reinforces the need to determine what happened in the tobacco case,” Cornyn said. “After 18 months of assuring the people of Texas that their expenses were justified in every way … [they] are now returning millions of dollars with no satisfactory explanation as to why.” Michael Tigar, attorney for the Five, said the earlier sum had been a good-faith estimate and that deviations from such estimates are common. (DURABLE LINK)
SOURCES: Kelley Shannon, “Cornyn, rebuffed in federal court, vows to appeal”, AP state and local wire, Aug. 16, not online, available on NEXIS; “Five attorneys say Morales not paid for contract in anti-tobacco lawsuit”, AP state and local wire, May 12, not online, available on NEXIS; Brenda Sapino Jeffreys, “As Tobacco Lawyers Return Money, Questions Return”, Texas Lawyer, June 9; “Tobacco trial lawyers admit misrepresentation”, Cornyn press release, June 1; Susan Borreson, “Tobacco Plaintiffs’ Lawyers Won’t Enforce Contract With State”, Texas Lawyer, December 2, 1999; Robert Bryce, “Nicotine Fit”, Texas Observer, November 26, 1999; Janet Elliott, “‘Tobacco Five’ Want Confidentiality Order”, Texas Lawyer, Sept. 9, 1999.; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27. Murr case: Miriam Rozen, “Smoke-filled room”, Dallas Observer, Sept. 17, 1998; “Pay up?”, April 22, 1999; Patrick Williams, “Buzz”, Dec. 17, 1998, May 20, 1999; Jim Brickman, “What Would I Ask Former Attorney General Dan Morales In the Grand Jury Investigation?“, Citizens for Lawsuit Abuse Houston; John R. Butler, Jr., “Dan Morales and Marc Murr Have Some Explaining To Do To All Texans“, CALA Houston.
September 1-3 — “Olympic trials”. At least ten athletes, after falling short in efforts to make the U.S. Olympic team in their sports, have insisted on going to arbitration or in one case to federal court, according to columnist Kimberly Strassel of the Wall Street Journal‘s online Opinion Journal (Aug. 31; see also Mark R. Madler, “Judges Wrestle With Epic Case of Olympic Athlete” (wrestlers), American Lawyer Media, Aug. 31.
September 1-3 — “Don’t talk to the humans”. Some years back the federal government issued regulations on universities’ use of human experimental subjects. How strictly are these rules being enforced? So strictly that a scholar can get in big trouble by not asking an official committee’s permission before visiting a retirement home and chatting with one of the elderly residents about his life. (Christopher Shea, Lingua Franca, Sept.) (via Arts & Letters Daily).
September 20 — Victory in Chicago. A judge last week threw out the city of Chicago’s lawsuit against the gun industry. “In granting the industry’s motion to dismiss, Judge Stephen A. Schiller of Cook County Circuit Court suggested that the city had not shown wrongdoing by the individual defendants. He said that the city’s arguments would be better handled in a legislature than in a courtroom.” However, a West Coast judge denied a defense motion to dismiss a group of cases filed by San Francisco, Oakland, Los Angeles city and county, and other plaintiffs. Pending appeal, judges have now dismissed the suits filed by Chicago, Cincinnati, Bridgeport, and Miami, while declining to dismiss suits filed by Detroit, Atlanta, Boston, New Orleans, Cleveland, and the California cities. (Pam Belluck, “Chicago Gun Suit Fails, but California’s Proceeds”, New York Times, Sept. 16 (reg); “Judge dismisses Chicago suit against gun industry”, Reuters/CNN, Sept. 15; reaction from Illinois State Rifle Association). Plus: John Derbyshire gets radicalized on the tort reform issue when he goes out trying to buy ammunition on Long Island, and discovers that the courtroom assault on the industry is choking the local firearms dealers into oblivion with no legislation needed, simply by causing their liability insurance to dry up. (“First thing we do…”, National Review Online, Sept. 12).
September 20 — Disbarred, with an asterisk. Most clients probably assume that a lawyer thrown out of the profession is gone for good, but the Boston Globe finds that for years bar authorities have been quietly readmitting practitioners, including some whose original offenses were grave. Some of this leniency has been misplaced, since a number of the readmitted lawyers have gone on to commit new offenses against clients. (David Armstrong, “Special Report: Disbarred Mass. lawyers skirt discipline system”, Sept. 17, and sidebars: “Reinstatement process favors lawyers“, “Victims often missing from equation“.
September 20 — “Regulating Privacy: At What Cost?” Free-marketeers finally start organizing to resist the steamroller movement toward online-privacy laws, reports Declan McCullagh. Among new initiatives are a symposium held yesterday on Capitol Hill by George Mason U.’s Mercatus Center, a book entitled The Future of Financial Privacy forthcoming from the Competitive Enterprise Institute, and a privacy-issues website called Privacilla.org. (Wired.com, Sept. 19). And Reason Express a while back alerted us to a website by Jacob Palme in Sweden which recounts some of the less pleasant consequences of that nation’s pioneering (1973) law preventing the electronic gathering or dissemination of information about individuals without their consent. Palme says the law mostly went unenforced as regards web publishing, which is a good thing since if enforced literally it could have rendered unlawful much of the web in Sweden. The few instances that led to enforcement action, as related by Palme, suggest that unpopular and dissident opinions were among the most likely to draw complaints under the law. One man put up a webpage critical of a large Swedish bank, naming individual directors whom he believed had behaved in ethically irresponsible ways; he was prosecuted and fined for violating their privacy. In another case, an animal rights group was subject to legal action for posting a list of fur producers. In a third, a church volunteer was prosecuted for stating on a web page that one named church member had broken a leg and another was a member of the Social Democratic Party; health status and political affiliations are considered especially sensitive under the law. In a fourth case, dissident dog lovers got in privacy-law trouble for criticizing leading members of a dog society by name. The privacy laws were revised in 1998 and again in 1999, following much criticism, and as of June 2000, when Palme’s page was last revised, the highest Swedish court had not yet given its interpretation of the law (“Freedom of Speech, The EU Data Protection Directive and the Swedish Personal Data Act“; “The Swedish Personal Register Law“; “Swedish Attempts to Regulate the Internet“; official Data Inspection Board). (DURABLE LINK)
September 19 — Hollywood under fire: nose of the Camel? In what may take the prize for worst idea of the month, South Carolina Attorney General Charles Condon has proposed filing coordinated state lawsuits to make Hollywood the next tobacco. “Clearly we have here a virtual replay of what the tobacco industry did to our children. Instead of Joe Camel, Hollywood uses Eminem, South Park, Doom and Steven Segal [sic] to seduce children,” Condon wrote in a letter to the National Association of Attorneys General (Condon press release, Sept. 13; David Shuster, “South Carolina AG Threatens Suit Against Entertainment Industry”, Fox News, Sept. 15). It’s time the entertainment business cleaned up its act, writes Clarence Page of the Chicago Tribune, but that doesn’t mean Sens. McCain and Lieberman are right to “justify [an] end run around the 1st Amendment with a public-health argument like that which justifies the regulation of tobacco or liquor.” (“A World Apart: Eminem and Me”, Sept. 17). Owens Corning and Met Life use cartoon characters (the Pink Panther and Snoopy respectively) as advertising mascots, and you might jump to the conclusion that they were committing that dire sin, “marketing to children”, if you didn’t know that fiberglass insulation and insurance are products bought by adults, observes Illinois law prof Ronald Rotunda (“The FTC Report on Hollywood Entertainment“, Federalist Society, Free Speech and Election Law Working Group; FTC report; “Lieberman: Entertainment must police itself”, AP/Miami Herald, Sept. 13). Filmmaker John Waters doesn’t think much of the crusade: “The future CEOs of America are all sneaking into R-rated movies” (Rick Lyman, “Writers, Directors Fear Censorship, Tell Anger Over Violence Hearings”, New York Times Service/Chicago Tribune, Sept. 18). And plaintiff’s lawyers suing entertainment companies over school shootings, who’ve already gotten plenty of favorable ink in the conservative press (see July 22, 1999), are hoping the new report will invigorate their legal cause (Frank Murray, “FTC adds ammo to lawsuits for deaths”, Washington Times, Sept. 13).
September 19 —WSJ‘s Bartley on decline of American law. The establishment of the rule of law, replacing the whim of powerful rulers, was perhaps the supreme achievement of the West in the millennium just past, but the United States has grown careless about its legal inheritance, with systematic injustices mounting in both criminal and civil courtrooms. Last week’s call-sheet scandal illustrates the way “audacious and powerful interests” who have found ways to use the legal system to make their fortunes “have allied themselves with government and politicians.” (Robert Bartley, “The Law and Civilization’s Future”, Opinion Journal (Wall Street Journal), Sept. 18). “Justice Department investigators and prosecutors want to know if there were, in fact, any quid pro quos for the trial lawyers’ extraordinary generosity,” editorializes the San Diego Union-Tribune about the scandal. “With trial lawyers contributing almost 10 percent of all funds raised by the Gore-Lieberman campaign, that remains an urgent question. Voters have a right to some answers before Nov. 7.” (“Veto for sale?”, Sept. 16).
September 19 — Punitive damages for hatemongering? Washington Post‘s editorial page “is gutsy enough to have qualms about Morris Dees’ strategy of bankrupting hate groups with punitive tort damages,” observes Mickey Kaus at Kausfiles (“The Aryan Nations Verdict” (editorial), Washington Post, Sept. 16). “Many advocacy groups that engage in direct actions potentially expose themselves to tort liability…. That danger is compounded by the abusive system of punitive damages, which gives juries wide discretion to ruin people or companies financially in a fashion untethered to the scope of the harm they have done in the specific case at issue,” the Post comments. “That could not have happened to a more deserving bunch than Mr. [Richard] Butler and the Aryan Nations. But it’s worth pausing for a moment to wonder who’s next.”
September 18 — Scruggs v. Ritalin. Latest target for zillionaire tobacco lawyer and recent Time profilee Richard Scruggs: Novartis Pharmaceutical Corp., makers of the drug Ritalin, and the American Psychiatric Association. Scruggs’s firm accuses the two of conspiring to promote an overly broad diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD), with the result that the drug is given to too many youngsters. “Novartis and the APA deny the allegations. In a statement, Novartis says the charges are ‘unfounded and preposterous.'” Some lawyers from the Castano consortium, which pursued tobacco litigation separate from Scruggs’s, are also joining him in the action. (“Lawsuits Accuse Ritalin Makers, APA”, AP/Yahoo, Sept. 15; Excite/Dow Jones; Toni Locy, “Fight over Ritalin is heading to court”, USA Today, Sept. 15) (see also Sept. 22-24 and April 13, 2001).
September 18 — White House pastry chef harassment suit. White House assistant pastry chef Franette McCulloch, 53, is suing her boss Roland Mesnier, claiming he “became hostile and rude when she spurned his advances, ‘screaming’ at her for refusing to have sex, excluding her from designing desserts and once assigning her to peel eight crates of kiwi.” Her suit also alleges that Bill Clinton, as the head of the White House, failed to establish a proper method for employees to bring harassment complaints, and demands $1 million each from Mesnier and Clinton. (AP/CNN, Sept. 13; Ellen Nakashima, “White House Chef Accuses Boss of Sexual Harassment”, Washington Post, Sept. 14). In 1997, the Equal Employment Opportunity Commission ruled against a discriminatory-firing claim by an employee of the White House chef’s office, but said he had been improperly retaliated against for filing his complaint. A former executive chef testified in a sworn deposition that year that the Clintons had paid him $37,000 to quit his post “because of my accent and the fact that I’m overweight.” (more).
September 18 — The teetery inkbottle. “Whenever the law and the facts were against him, Mr. Homans was not one to pound on the table. Instead, he would resort to what he called his ‘trial pen’, a big, old-fashioned device that he would pull out at a critical moment in a trial. On the stand would be the state’s star witness testifying that he had seen with his own eyes as Mr. Homans’s client pulled out a gun and pointed it directly at the bank teller’s head. But the jurors’ eyes would be on Mr. Homans, who, with trembling hand, would be filling the pen from a bottle of India ink perched so precariously, half over the edge of the defense table, that the jury would be caught up in the suspense of when it would fall.” — from an obituary, “William Homans, 75, Dies; Boston Civil Rights Lawyer”, by the late Robert McG. Thomas, Jr., New York Times, February 13, 1997 (fee-based archives, search on “William Homans”).
September 18 — That’ll be $2 trillion, please. A former resident has filed three lawsuits against the town of Rocky River, Ohio, “claiming everything from false arrest to injury of reputation,” and demanding $2 trillion. The town isn’t amused and is countersuing her, saying it’s had to expend money to defend itself. (Sarah Treffinger, “Rocky River sues woman who sued for trillions”, Cleveland Plain Dealer, Sept. 13).
September 15-17 — Day Two of Vetogate. George W. Bush in a California speech says the new call-sheet revelations are evidence that Gore “may have crossed a serious line … The appearance is really disturbing”, Janet Reno refuses to talk about the status of the investigation, the New York Times Washington bureau frets about being (just barely) webscooped by Time.com on the story, and Gore campaign spokesman Chris Lehane curiously describes the sensational disclosures as “recycled”, though no one in the press remembers seeing them before now (CNN; Drudge special; Yahoo/Reuters; Wash. Times).
September 15-17 — Who caught the tire problem? “Who provided the information that instigated the current recall? Who acted to protect the consumer? None other than ‘greedy’, profit-seeking State Farm Insurance Company. Eager to earn ever higher profits by reducing injury claims and lawsuits, State Farm’s statistical bureau noticed an increase in claims related to Firestone tires and passed the information along to the NHTSA which had been asleep at the switch. [See Devon Spurgeon, “State Farm researcher’s sleuthing helped prompt Firestone recall’, Wall Street Journal , Sept. 1]. The profit seeking of a big, bad, private insurance company may help save hundreds of lives.” (James Ostrowski, “The Tire Fiasco”, Ludwig von Mises Institute, Sept. 8).
In the New York Times Sept. 11, Keith Bradsher reports that by the end of 1998 trial lawyers “had already sued Firestone, and sometimes Ford as well, in cases involving 22 deaths and 69 serious injuries”. However, few of these cases had come to the attention of the National Highway Traffic Safety Administration; until recently NHTSA had received very few complaints, and none of fatalities. In fact, Bradsher reports, trial lawyers were pursuing a conscious policy of not reporting tire incidents to the agency, apparently because of tactical concerns — if the agency learned about such cases too early and in too small a number, it might do a perfunctory investigation and miss the pattern of defectiveness, and then the lawyers would have more trouble winning their cases. This strikes us as a fairly damning indictment to be leveling against the trial lawyers — they flout the public interest in learning crucial safety information, just in order to angle for monetary advantage? Isn’t that what Firestone is accused of doing? — but Bradsher quotes Ralph Hoar, a well-known plaintiff’s-side consultant in auto-design cases who provided the numerical tabulation cited at the beginning of this paragraph, as cheerily portraying the lawyers as just doin’ their job, saying they have to concern themselves with their clients’ best interests, not anyone else’s.
Meanwhile, Ford Motor had been named in a few suits but “paid little attention, because automakers routinely face thousands of lawsuits after crashes.” In other words, the background level of litigation against a company of that size is so high that it’s hard to notice patterns that do turn out to be meaningful (Keith Bradsher, “Documents Portray Tire Debacle as a Story of Lost Opportunities”, New York Times, Sept. 11 (reg)). (DURABLE LINK)
September 15-17 — Ciresi bested in Senate bid. Michael Ciresi, the trial lawyer who sought to parlay his representation of the state of Minnesota in the tobacco litigation into a seat in the U.S. Senate, has lost the Democratic nomination to department store heir Mark Dayton by a margin of 41 to 23 percent, with other candidates dividing the rest. (Dan Bernard, “Dayton Grabs DFL Nomination”, WCCO/Channel 4000, Sept. 13; St. Paul Pioneer Press; Minneapolis Star-Tribune).
September 15-17 — Cash return sought by murder-for-hire convict. “A criminal defense attorney who paid an undercover agent $11,000 in a failed murder-for-hire plot is asking the government to return the money. Frederick Ford, 48, who is serving an eight-year prison term for planning to kill two former clients he thought could implicate him in a kidnap plot, is seeking the return of the money he admitted he gave to a U.S. Department of Labor agent last year.” (“Convicted attorney seeks return of murder-for-hire retainer”, AP/CNN, Sept. 13; Shelley Murphy, “Hit man hirer wants money back”, Boston Globe, Sept. 13).
September 14 — “I know [you] will give $100K when the president vetoes tort reform, but we really need it now.” The New York Times reports in today’s editions that Justice Department campaign finance investigators have launched a preliminary probe into documents that have surfaced from the Clinton/Gore 1996 fundraising operation, including a “call sheet” prepared for Vice President Gore regarding Beaumont, Texas lawyer Walter Umphrey, a major Democratic benefactor who shared in Texas’s $3.3 billion tobacco contingency fee and is well known to readers of this space. The sheet describes Umphrey as “closely following tort reform” and suggests asking him for $100,000 to finance Democratic Party TV commercials. The White House claims that Gore did not make the call, but two weeks later a staffer for then-Democratic National Committee chairman Donald Fowler prepared a call sheet reading as follows: “Sorry you missed the vice president. I know [sic] will give $100K whn [sic] the president vetos [sic] tort reform, but we really need it now. Please send ASAP if possible.” DNC officials propose that the “missed” might have referred to the two men not connecting at an in-person event; Fowler disclaims any memory of talking with Umphrey about campaign donations and says he would never have used the language on the call sheet. According to the Times, “Trevor Potter, a former chairman of the Federal Election Commission, called the call sheet’s language ‘extraordinarily ill-advised,’ saying prosecutors would probably be investigating whether the solicitation violated either a bribery statute or a law prohibiting ‘illegal gratuities,’ a ‘gift’ given after an elected official takes a public action.”
The Washington Post reports that Umphrey says he doesn’t recall “any of that” and otherwise declines comment, while Payne was talking to the Times only through her lawyer. And attorney Michael Tigar, who represents Umphrey and the rest of the Big Five Texas tobacco lawyers, issued this small gem of legalistically worded denial: “Tying campaign contributions to legislative or executive action has never been illegal in the United States unless there is proof that the public official extorts the money by threatening to give or withhold action based on the contributions,” he said; moreover, his clients, including Mr. Umphrey, “have repeatedly been asked in many forums whether they have ever given money to a candidate or officials as a quid-pro-quo for official action, and they have repeatedly said under oath that they have never done so.” The Times account adds considerable background on the epic pace of Clinton/Gore fundraising among Texas plaintiff’s lawyers of late, including a little-reported fundraiser thrown for Hillary Rodham Clinton’s Senate campaign by Big Five stalwart John Eddie Williams of Houston. (Don Van Natta Jr. with Richard A. Oppel Jr., “Memo Linking Political Donation and Veto Spurs Federal Inquiry”, New York Times, Sept. 14 (reg); Susan Schmidt, “1995 Documents Appear To Link Lawyer’s Contribution To Veto”, Washington Post, Sept. 14; more on Umphrey and the Big Five: Sept. 1, May 22; more on trial lawyers’ political clout). More breaking coverage (via Drudge): Time, Fox News, AP. (DURABLE LINK)
September 13-14 — “Violent media is good for kids”. Good kids, as well as bad ones, are naturally fascinated with violence, catastrophe and retribution, and letting them explore these matters in the relatively safe territory of the printed page and popular entertainment is part of the process by which they learn how to fit themselves into a frightening world, argues cartoonist Gerard Jones, in an excerpt from a book due out next year from Basic with co-author Melanie Moore (“Reality Check”, Mother Jones, June 28; Reason magazine, “The Kids Are All Right“, “Breaking Issues”; Christopher Stern, “Violent Material Marketed To Youth”, Washington Post, Aug. 27; Mike Allen and Ellen Nakashima, “Clinton, Gore Hit Hollywood Marketing”, Washington Post, Sept. 12).
September 13-14 — Gregoire’s home front. Washington state attorney general Christine Gregoire gained a high national profile jetting around the country to take a leading role in the tobacco-Medicaid affair and other big-case AG litigation, and followed up by assuming the presidency of the National Association of Attorneys General (see July 17). Now it may be time to wonder whether she was keeping enough of an eye back home on the unglamorous routine of the AG’s office, which plays a vital role in protecting the state’s legal interests. In March a Pierce County jury awarded the largest verdict ever against the state, $17.8 million, on behalf of three developmentally disabled men whose families said they were abused in a state-supported home. Gregoire’s office announced plans to appeal but, embarrassingly, proceeded to lose the state’s right to do so by missing a filing deadline. With interest, the total bill has now mounted to $18.7 million. (Eric Nalder and Mike Carter, “State won’t give up bid to appeal $17.8 million verdict”, Seattle Times, Sept. 12; Eric Nalder, “No excuse for missed appeal, court says”, Seattle Times, Aug. 22; see also update Nov. 30). The Capital Research Center has issued a new report critical of recent attorney general activism, by Ron Nehring of Americans for Tax Reform (“National Association of Attorneys General: Opening the Door to a New Era of Regulation Through Litigation”, Organization Trends (CRC), Sept.)
September 13-14 — Prescription: 24-7 monitoring. Adding to Evergreen State taxpayers’ legal woes, a Pierce County, Wash. jury Sept. 1 ordered the state government to pay $22 million to survivors of a driver killed in an auto accident by a man who was at the time serving the community-supervision portion of a sentence for third-degree assault. The verdict broke an earlier $17.8 million record for lawsuits against the state, set in March by the same plaintiff’s attorney, Jack Connelly (see above item). Gov. Gary Locke vowed to appeal the verdict, saying if upheld it could make the entire enterprise of community supervision unworkable. “This man was convicted of … third-degree assault connected with a domestic dispute,” he said. “Imposing liability for his involvement in an auto accident extends public liability too far.” A Locke aide questioned whether the state could monitor the 55,000 persons on community supervision adequately to prevent any of them from being a menace on the highway. One of the alternatives to risking failure-to-supervise liability — keeping the 55,000 locked up — would apparently be okay with lawyer Connelly, who said, “If you’re not even going to try to do your job, then don’t put these guys on community supervision. Put them in jail.” (Eli Sanders, “Family awarded $22.4 million in wrongful death lawsuit against state”, Seattle Times, Sept. 2). See also Chris Solomon, “Cities leery of new probation rules”, Seattle Times, July 11 (local governments fear being financially wiped out by Washington Supreme Court ruling allowing negligence lawsuits against municipalities over crimes committed by probationers).
September 13-14 — More bank spying? Despite strongly negative public reaction to withdrawn “Know Your Customer” regulations that would have accelerated banks’ sharing of customer “profiles” with law enforcement, legislators like Rep. James Leach (R-Iowa) are back with proposals that raise similar civil liberties concerns (Scott C. Rayder, “The Counter-Money Laundering Act: An Attack on Privacy and Civil Liberties”, Heritage Foundation Executive Memorandum, Aug. 31; our take on the last round).
September 13-14 — Judges’ words, copyrighted. Officials in the California judiciary would like to revamp the instructions that judges give juries before trial deliberations, in hopes of making them clearer and more understandable, but have run into an unexpected problem. The Los Angeles County courts turn out to hold copyright in the most widely used current instructions and collect royalties when other California courts use them, which have generated $2.5 million for the county’s use over the past decade. “‘When we first began this effort three years ago, all of us just assumed that we would take [Los Angeles instructions] and improve on them,’ said Associate Justice James D. Ward of the state Court of Appeal in Riverside, vice chairman of the task force. ‘Then they announced to us that they owned them.'” The L.A. courts have held back from cooperating in the statewide revision efforts, which if successful would result in a set of instructions that courts could use for free. (Caitlin Liu, “Say What, Your Honor?”, Los Angeles Times, Sept. 7).
September 12 — Goodbye to gaming volunteers? Online multiplayer gaming has grown to be a big Internet institution in no small part because large numbers of unpaid enthusiasts join in on a volunteer basis to suggest and beta-test new features, run discussion boards and perform countless other services. “But maybe not for long. On Monday, August 28 … Origin Systems Inc. (OSI) [makers of Ultima Online, one of the leading fantasy role-playing games], announced the termination of free game account privileges for hundreds of community volunteers…. While company representatives have not said so outright, it appears the move to eliminate what amounted to a $10 a month gratuity for volunteers is related to a recent New York class action lawsuit, brought by former volunteers at America Online (AOL)” (see Sept. 7, 1999). The class action lawyers in that case are charging that because AOL benefits from the content devised by its volunteers, and has given them at least nominal compensation in the form of free services and the like, it is therefore obliged to keep track of how much time they put into volunteering and pay them at least the minimum wage. If the lawyers succeed in their efforts, online community providers could find themselves facing large retroactive wage bills. “Origin is just the first game company to move to protect itself legally by removing any perks that could be seen as differentiating its volunteers from all the other players. The major subscription-based role-playing services may soon follow suit. While the short-term effects may be limited (some volunteers may quit, but could be replaced), the long-term future of volunteer work on online releases seems doubtful all of a sudden.” (Bruce Rolston, “The End of the Smurfs?”, Adrenaline Vault, Sept. 1).
September 12 — Curious feature of lawyer’s retainer. Texas trial lawyers are in a flutter over a Waco case in which an appeals court ruled that a client family in an industrial accident case was within its rights to withdraw from a contingent-fee legal contract it had signed. The agreement the lawyer had gotten the family to sign included a curious feature: a provision entitling him to settle the case without their consent. Such a provision, the court ruled, “clearly violates” the Texas professional code for lawyers, making the entire contract voidable. The lawyer, J.W. Stringer, plans motions for rehearing and appeal. (Jenny Burg, “Opinion Has Lawyers Reviewing Contingent-Fee Contracts”, Texas Lawyer, Aug. 21).
September 12 — This little piggy got taken to court. More pig farmers are facing legal action as outlying towns change “from rural, mind-your- own-business farm communities to residential, what’s-that-smell, suburban neighborhoods,” according to a Cleveland Plain Dealer report. Five residents of Medina County, Ohio, including a truck driver and two auto mechanics, have been sent to jail this summer for refusing to clean up pig living arrangements on their properties (Stephen Hudak, “Proud Pig Man’s smelly pork farm lands him in poke”, Sept. 7) (via Romenesko’s Obscure Store) And a Marlin County, Florida pig farmer sued by an adjoining golf course has put up a website which solicits moral support and legal defense contributions, as well as purchases of the squiggle-tailed offenders (Pigfarmer.com) (more on pig litigation: Oct. 4, 1999).
September 11 — “Feeding Frenzy Over Firestone”. “Lawyers all over the country see opportunity in the escalating legal, commercial and public relations disaster for Ford and Firestone.” (Bob Van Voris and Matt Fleischer, National Law Journal, Sept. 5; Yahoo Full Coverage).
September 11 — Harassment law roundup. At an Alcoa plant in North Carolina, one of the black complainants in a race discrimination suit went out to the parking lot, made a list of all the workers’ vehicles with Confederate flag stickers on them, and filed this as evidence of “hostile racial environment” in the case. The company promptly banned employees from having such stickers on their cars, a ban it insists had absolutely nothing to do with the lawsuit (Steve Chapman, “Trouble in Mind: Is the First Amendment Void in the Workplace?” Chicago Tribune, Aug. 24). In an excerpt from his book The Unwanted Gaze: The Destruction of Privacy in America, New Republic legal correspondent Jeff Rosen urges courts to reconsider the “hostile environment” analysis that has become an accepted part of harassment law: “A jurisprudence originally designed to protect privacy and dignity is inadvertently invading privacy and dignity” (“Fall of Private Man”,New Republic, June 12; more on book). Clarence Thomas, alone among the nine Justices of the Supreme Court, wanted to tackle the “troubling First Amendment issues” raised by a court’s injunction against workers’ use of racial epithets on the job at an Avis Rent-a-Car franchise; a California court had ordered the drawing up of a list of words that employees were to be forbidden to use in conversation with each other, whether anyone present found the words objectionable or not (Tony Mauro, Freedom Forum, May 23). And early this year it was reported that an “affirmative action officer in Falmouth, Massachusetts — whose job it was to enforce the town’s sexual harassment policy — has been fired for sexually harassing a town employee. The official, Jayme Dias, was in charge of promoting and enforcing fairness in hiring and employment practices.” (Monster.com, “Week in Work”, Jan. 31).
September 11 — “Mother sues over lack of ice time for goalie son”. In Rimouski, Quebec, “Hélène Canuel is seeking $1,000 in damages from the Rimouski Minor Hockey Association because her son, David, was denied the right to play in a critical game during a hockey tournament last December.” David is 14 years old. (Arpon Basu, Montreal Gazette/National Post, Aug. 24).
September 29-October 1 — Disabled rights roundup. The U.S. Supreme Court has agreed to decide whether the PGA golf tour must bend its rules to allow disabled golfer Casey Martin to ride in a golf cart (“U.S. High Court To Decide Case of Disabled Golfer”, Reuters/FindLaw, Sept. 26; see April 10, our May 1998 take). The government of Great Britain is considering legislation that would compel its armed forces to accept disabled recruits, and pressures are rising to accept handicapped military personnel in front-line as well as auxiliary positions, given the principle of nondiscrimination (Michael Smith, “Disabled want frontline jobs in ‘pc’ Services”, Daily Telegraph (London), Sept. 26; “Forces may have to admit disabled”, Aug. 21; UK Disability Discrimination Act). And a trend that has been well established under U.S. disabled rights law for some time — doctors’ having to hire sign-language translators at their own expense when a deaf patient wishes to call on them for a consultation — is exemplified by a consent decree negotiated by the office of New York Attorney General Eliot Spitzer, requiring an upstate doctors’ group to provide interpreters-on-demand for “all significant medical encounters” (“Spitzer Announces Agreement With Upstate Physician’s Practice To Provide Sign Language Interpreters for Deaf Patients”, press release, June 21; see also May 31).
September 29-October 1 — Annals of zero tolerance: Tweety bird chain. In suburban Atlanta, the Garrett Middle School has suspended 11-year-old Ashley Smith from sixth grade for two weeks on charges of breaking its zero-tolerance weapons policy by bringing a chain to school. It’s a 10-inch novelty chain that dangles from her Tweety bird wallet. “It’s only a little chain, and I don’t think it can really hurt anyone,” said Ashley, a “Tweety fan who publishes her own Web site devoted to the cartoon character.” Earlier, the ACLU successfully represented an Atlanta public school student who was charged with criminal weapons possession after she brought African tribal knives to school for a project (“Girl suspended for Tweety chain”, AP/Salon, Sept. 28; UPI/Virtual New York) (Ashley Smith’s guestbook) (update Oct. 4: school’s explanation).
September 29-October 1 — French crash, German victims, American payout levels? Air France has sued Continental Air Lines to recoup its costs from the July Concorde disaster in Paris that killed 113 people, charging that a strip of metal that fell off a Continental DC-10 caused the incident. The French airline has already offered to compensate survivor families, who are mostly German, but “German lawyers are pushing for a settlement in the United States, where courts order higher payouts.” (“Airline files Concorde suit”, Reuters/CNNfn, Sept. 27).
September 29-October 1 — “Denny’s fights back against false suits”. The restaurant chain, dogged by past charges of racial discrimination, releases more details on how it uses videotapes and other techniques to disprove dubious copycat claims (see Aug. 29-30). In Oakland, Calif., the lawyer son of John S. Harrison Sr. sued Denny’s claiming that a white couple had been served before his father though they had arrived later. “Mr. Harrison conceded he had been a customer for 20 years and ate at that Denny’s counter twice a day for 10 to 12 years with no problems in a store whose clientele was 50 percent black.” He had been happy with the meal and had left a tip. A federal magistrate threw out the suit and gave Denny’s legal fees. (Frank Murray, Washington Times, Sept. 25).
September 29-October 1 — “Supersize small claims”. Prairielaw columnist David A. Giacalone argues for reviving the nearly moribund institution of small claims court by boosting the threshold value of claims handled by such courts to $20,000, a change also endorsed by the HALT legal reform group. Thresholds around $3,000 are now common. Such a shift might relieve some of the docket pressure on regular courts while allowing ordinary citizens to vindicate more claims without lawyers’ assistance, a feature that may help explain why the bar shows little enthusiasm for the idea (undated, but appeared Aug.) (see also Oct. 3).
September 27-28 — Welcome UserFriendly.org readers. We’re picked as the link of the day by the website for the cartoon strip User Friendly, by Illiad.
September 27-28 — “Blind customers want to touch club lapdancers”. In East Sussex, England, the Brighton and Hove municipal council says it will consider a request by the Pussycats Club that its blind patrons be permitted to touch the exotic dancers as a form of handicap accommodation. The club says its vision-impaired customers appreciate the proximity of the lapdancers and their perfume but would get a better idea of what they looked like if they were allowed a hands-on experience, which is currently forbidden by the club’s license. (David Sapsted, Daily Telegraph (London), Sept. 26).
September 27-28 — Welcome Toronto Star readers. “One of my favourite Web sites is overlawyered.com, a collection of the most asinine stories from the admittedly ordinarily twisted universe of American law,” writes columnist Jason Brooks. He interviews our editor about a current proposal for Ontario to enact its own law emulating the Americans with Disabilities Act. No one seems to have any very clear idea what such a law would cost, but the Ontarians with Disabilities Act Committee says “the idea of a total cost figure misses the point.” Uh-oh…. (Jason Brooks, “Will new act go too far for the disabled?”, Toronto Star, Sept. 25).
September 27-28 — “Controversial drug makes a comeback”. A small Canadian firm, Duchesnay Inc., wants to reintroduce to the U.S. market Bendectin, the pregnancy-nausea drug driven off the market by mass litigation claiming that it caused birth defects. “Bendectin was the archetypical case of junk science scuttling a perfectly safe product,” Dr. Michael Greene, director of maternal-fetal medicine at Massachusetts General Hospital, tells New York Times science correspondent Gina Kolata. “It was a sad episode in American jurisprudence.” Although ultimately the manufacturer never paid damages, it spent $100 million in defense costs, says Prof. David Bernstein of George Mason University (Sept. 26)(reg).
September 27-28 — Stuart Taylor, Jr. on Gore and Vetogate. Another scathing, must-read column on trial lawyers and politics by the National Journal columnist, written before Janet Reno’s announcement last week that the Justice Department would not pursue an investigation of the Umphrey call sheet affair. Did you know that lawyers as a group have donated nearly ten times as much to the Democrats during this election cycle as the tobacco industry has given Republicans? (“Gore’s Shameless About Posing As A Populist”, National Journal/Atlantic Unbound, Sept. 26) .
September 27-28 — Microsoft wins one. The U.S. Supreme Court has turned down a Justice Department request that it hear the Microsoft case immediately, instead allowing the D.C. Circuit Court of Appeals to review the case, which is what the company preferred; past D.C. Circuit rulings suggest that it may be more sympathetic to Microsoft’s position than was the trial judge. (“High Court Defers to Microsoft”, AP/Wired News, Sept. 26; Declan McCullagh, “Microsoft gets what it wants”, Wired News, Sept. 26). And a number of courts have thrown out statewide consumer class actions against Microsoft based on the sale of Windows, although this doesn’t really come as much of a surprise in the case of states that bar indirect (end-user) antitrust claims, since cases filed in those courts were always long shots (Jonathan Groner, “The Cases Microsoft Is Winning”, Legal Times (Washington), Sept. 18).
September 27-28 — Bank error in your favor. Latest coins- found- under- the- sofa- cushions class action settlement: Wilmington, Del.-based credit card giant MBNA Corp. agrees to pay $3.57 each to current and former customers to settle claims that its ads were misleading in the early 1990s when they promoted a low interest rate for balances transferred from another card, but did not warn that the low rate did not apply to newly incurred charges. Lawyers for the plaintiff class, meanwhile, are set to pocket $1.3 million. Major credit card companies are frequent targets of class action litigation; Chase Manhattan and Providian Financial have recently settled such actions, and Citibank and Bank One/First USA face pending claims (Joseph N. DiStefano, “MBNA settles suit over card ads”, Philadelphia Inquirer, Sept. 26).
September 27-28 — Final innings for Kennewick Man. Score stands at archaeologists 0, multiculturalists 1, as Interior Secretary Bruce Babbitt announces that the 9,000-year-old skeleton found along the Columbia River four years ago will be given to local Indian tribes, who intend to bury the remains without allowing a complete examination. “If Babbitt’s ruling stands, the loss to science is beyond comprehension,” writes National Review Online‘s John Miller (“Kennewick Man’s last stand”, Sept. 26; see also Oct. 11, 1999).
September 25-26 — New data on state campaign contributions. Triallawyermoney.org, the project of the American Tort Reform Foundation that tracks plaintiff lawyers’ political contributions, has just expanded its coverage to include local elections in seven key states as well as federal elections. The states include Alabama, Florida, Illinois, Michigan, Ohio and Texas; there is also a link to similar data collected by the Civil Justice Association of California (launched Sept. 19 — “State Races“).
September 25-26 — “Skier to be tried for manslaughter in Colorado in fatal collision”. Although two county courts ruled that a reasonable person would not have expected skiing too fast to result in another person’s death, prosecutors in Denver have insisted on pressing a manslaughter rap against Chico, Calif. college student Nathan Hall, who in 1997, at the age of 18, headed down Vail Mountain and collided with 33-year-old Denverite Alan Cobb on the slope, killing him almost instantly. (AP/CNN, Sept. 11). Update Nov. 21: Hall convicted of criminally negligent homicide.
September 25-26 — Wal-Mart’s tobacco exposure. Through a little-known subsidiary named McLane Co., the Bentonville, Ark.-based retailer is the largest distributor of cigarettes to convenience stores, which makes it the biggest handler of that commodity aside from the tobacco companies themselves. Despite Wal-Mart’s deep pockets, plaintiff’s attorneys seem not to have noticed it yet. (Kelly Barron, “Smoking gun”, Forbes, Aug. 21) (see also July 7).
September 25-26 — A job offer for the judge. Following protests from defendants, Judge Edward Angeletti of Baltimore, Maryland Circuit Court removed himself from a series of asbestos-injury cases over which he was presiding and declared a mistrial after it was revealed that he had received a job offer from plaintiff’s attorney and political kingmaker Peter Angelos (see Oct. 19 and Dec. 9, 1999, March 15, 2000). According to AP/CNN, “Angelos has said that he made a ‘very substantial’ offer for Angeletti to head his office’s pursuit of lawsuits against lead paint manufacturers.” Angelos, who has become immensely wealthy through his handling of asbestos litigation, controls about three of every four asbestos cases in the Baltimore court. (“Job offer from lawyer leads judge to step down from asbestos trial”, AP/CNN, Aug. 1; “Judge removes himself from absbestos [sic] trials”, AP/Prince George’s County [Md.] Journal, Aug. 2)
September 25-26 — Kopel on zero-tolerance policies. Dave Kopel, Paul Gallant, & Joanne D. Eisen of the Independence Institute comment on the school zero-tolerance policies under which possession of an obvious toy gun — or sometimes just making a thumb-and-first-finger “gun” gesture — is considered grounds for punishment. (“Gunning for the Kiddies”, National Review Online, Sept. 22).
September 25-26 — Treaties rule. A federal judge in San Francisco has thrown out a lawsuit against Japanese defendants over World War II atrocities. In 1951 we signed a peace agreement with Japan which prohibited exactly these sorts of claims. Now we have to live up to our end of the treaty — period. (Louis Sahagun, “Suit on WWII Slave Labor in Japan Voided”, L.A. Times, Sept. 22; Reuters/FindLaw; see Sept. 20, 1999).
September 22-24 — “N.Y. Lawyer Charged in Immigrant Smuggling”. In a 44-count indictment, federal prosecutors on Wednesday charged the Manhattan lawyer who runs the country’s largest political asylum practice, Harvard Law-educated Robert Porges, with a wide range of offenses including concocting thousands of fictitious stories of persecution by which detained aliens could avoid deportation, advising smugglers how best to avoid detection by the Immigration and Naturalization Service, and “helping smugglers detain illegal immigrants until debts were paid.” According to prosecutors, paralegals wrote out longhand accounts of persecution, claiming of women clients, for example, that they had suffered forced abortions under China’s “one-child” policy, and then coached the immigrants on how to carry off the story convincingly. Porges is said to have “collected as much as $13 million in fees for helping to transport as many as 7,000 illegal immigrants from mainland China to the United States”. (Hanna Rosin and Christine Haughney, Washington Post, Sept. 21). Update Sept. 21, 2003: Porges and wife sentenced in 2002 to about eight years.
September 22-24 — RN’s illusions. Ralph Nader campaigns on the theme that anti-business advocates like himself are somehow kept from circulating their message or swaying policy. Is he really so disconnected from reality as to think that? (Sebastian Mallaby, “Victim of His Success”, Washington Post, Sept. 17). Before you get too enthusiastic about the Greens, suggests James Lileks, take a look at their platform: “They want your money, your job, your freedom and your car.” (“A look at Nader and his merry Greens”, San Francisco Examiner, July 14). And since some Nader groups have proposed the setting aside of a new .sucks domain to express discontent with powerful institutions (ibm.sucks, mcdonalds.sucks, etc.) some Seattle libertarians have turned the tables by founding the rudely named but inevitable Nadersucks.org, which bills itself as the largest collection of critical links about him online, outpacing the “Nader Skeleton Closet” feature at Realchange.org.
Other links of note from a Nader-watcher’s scrapbook: Doug Henwood, “1.75 cheers for Ralph”, Left Business Observer, Oct. 1996; discussion on LBO mailing list re RN finances, Sept. 9, 1998; RN denounces tort reform in campaign press release, VoteNader.org, Aug. 11; Robert Bryce, “Naturally Nader”, Austin Chronicle, April 7; Mike Allen, “Nader: The Little Guy’s Multimillionaire” (worth $3.8 million, heavily invested in tech stocks, still refuses to reveal income tax records), Washington Post, June 18; Paul West, “Corporate gadfly turns out to be rich”, Baltimore Sun, June 17; Michael Lewis, “Campaign Journal: The Normal Person of Tomorrow”, The New Republic, May 20, 1996.
September 22-24 — From our mail sack: hyperactive lawyers. Reader Scott Replogle, M.D., writes from Colorado: “I see (Sept. 18) that trial lawyer Richard Scruggs is suing psychiatrists and the makers of the drug Ritalin, alleging they conspired to ‘create’ a disease, Attention Deficit/Hyperactivity Disorder, and then overdiagnose it for monetary gain. Which raises the question: when can we sue the people who not too long ago ‘created’ the previously unknown disorders of ‘silicone disease’ and ‘human adjuvant disease’ during the breast-implant controversy, and conspired to overdiagnose those diseases for monetary gain? And does it matter that many of those people were trial lawyers?” (see also April 13, 2001)
September 21 — Missouri tobacco fees. Lawyers stand to make $100 million or more for representing the state of Missouri in the Medicaid-tobacco litigation and the state’s largest newspaper, the St. Louis Post-Dispatch, says that sum “is out of proportion to the work performed and the risk involved … troubling … grossly overpays the lawyers involved … creates an unholy alliance between the state and tobacco interests” It’s also “a political gravy train” since “the five law firms involved in the case donated a total of more than $500,000 in campaign contributions over the past eight years, mostly to Democrats”; a prominent Republican former judge and Democratic former mayor of St. Louis were also cut in. “An important issue of public policy — the lawyers’ fees — will be determined outside the public forum” given that a secret arbitration proceeding will be employed to set the fees. “…It is private money in the public trough. But that doesn’t make the sight of the lawyers lining up to feed any prettier.” (“All aboard the gravy train” (editorial), St. Louis Post-Dispatch, Sept. 17).
Brent Evans, a state senate candidate in Missouri, has posted extensive documentation on the circumstances surrounding state attorney general Jay Nixon’s hiring of outside lawyers to prosecute the suit. According to Evans, the lawyers’ campaign contributions of $561,000 included $139,000 for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan (“The Tobacco Papers“; the lawyers; their generosity; the work they might have done to justify the fees; “Attorneys mum about how much they’re seeking” (fee request “confidential”), Jefferson City News-Tribune, April 26, 1999; Jack Cashill, “Warning: Tobacco Settlements May Endanger The Integrity of Your Elected Officials” (also discusses Kansas fees), Cashill.com, undated 1999; “Appeals court sides with Nixon on legal fees in tobacco settlement”, Jefferson City News-Tribune, May 31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau, Mo.), June).
Last year Missouri Digital News reported that Paul Wilson, lead attorney on the matter with AG Nixon’s office, “urged lawmakers to pass legislation that will protect the major tobacco companies from a market-share loss once the impact of the tobacco settlement sets in. Off-brand cigarette companies, those not participating in the settlement, could otherwise undercut the prices of the major tobacco companies. Missouri will keep getting its billions so long as the market share of the signatories does not dip below 95 percent. If it were to do so and Missouri had no off-brand tobacco law, explained Wilson, the terms of the settlement let the major tobacco companies stop paying.” (Anna Brutzman, “Legislators Bewildered By Settlement”, April 4, 1999). Update Oct. 5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco fees.
September 21 — Dangerous divorce opponents. It’s tough enough going through a divorce in any case, but you’d really better watch out if your spouse is a successful lawyer, according to the New York Post. Advice: try for a change of venue. (Laura Williams, “Attorneys’ Wives Court Disaster”, Sept. 20).
September 21 — Eastwood trial begins. Jurors will hear an Americans with Disabilities Act complaint against the actor’s Mission Ranch hotel in Carmel. For our coverage of the Eastwood case and related Congressional hearings, see May 18, March 7, Feb. 15 and Jan. 26. (“Eastwood to Jurors: ‘Make My Day'”, AP/Fox News, Sept. 20; Shannon Lafferty, “Eastwood in the Line of Fire,” The Recorder/CalLaw, Sept. 21).