August 10-12 — Smile-flag lawsuit. Dr. Patricia Sabers, a dentist in Sarasota, Fla., sometimes flies a colorful pennant adorned with smiles outside her office, but now a rival dentist, Mitchell Strumpf, is suing her, saying the smile on her flag is a distinctive design that he registered as a service mark some years ago and which he thus has the exclusive right to display in the area. “Sabers said her generic-looking flag comes from a dental supply company catalog”. Sabers “should get her own service mark,” said Strumpf’s attorney, Michael Taaffe. “It’s not a laughing matter.” (Kelly Cramer, “Smile logo brings frowns”, Venice Herald-Tribune, July 31).
August 10-12 — Perils of extraterritorial law. Elite opinion in the U.S. has been relatively uncritical toward the idea of putting unpopular foreign leaders on trial outside their home country for outrages committed in their official capacities, but the policy could easily backfire against us given that there are an awful lot of people and factions around the world aggrieved at the United States and its leaders, observes the former chief of staff of the Senate Foreign Relations Committee (Pat M. Holt, “The push for human rights could hurt Americans”, Christian Science Monitor, Aug. 2). And agitation continues for a lawsuit against the U.S. in international courts to blame us for global warming and our failure to back stronger steps against it (Andrew Simms, “Global Warming’s Victims Could Take U.S. to Court”, International Herald Tribune, Aug. 7).
August 10-12 — School email pranksters to Leavenworth? Sen. Robert Torricelli (D-N.J.) recently introduced a bill called the School Website Protection Act of 2001 which would provide that anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally affects or impairs without authorization a computer of an elementary school or secondary school or institution of higher education” will to go federal prison for up to 10 years.” Critics say the bill “is worded so vaguely it would turn commonplace activities into federal crimes to be investigated by the U.S. Secret Service.” “Sending one unsolicited e-mail affects a computer,” says Jim Dempsey, deputy director of the Center for Democracy and Technology. “If I send an e-mail to my student’s teacher and I didn’t have her permission, I violate the act.” (“Senator Targets School Hackers”, Declan McCullagh, Wired News, Aug. 1).
August 10-12 — New in Letters. The operator of an online pet store writes in to amplify our coverage of his recent suit against participants in a hobbyist listserv (more).
August 10-12 — U.K.: Labour government proposes curbs on malpractice awards. In Britain, the newly reelected Labour government of Tony Blair is proposing to limit skyrocketing awards in medical malpractice cases against the National Health Service. It wants to adopt “fixed tariffs of compensation”, i.e. prescheduled amounts for types of injury that can be looked up in tables in lieu of individualized argumentation. Also in the works is a shift to in-kind awards, such as the provision of future nursing services, instead of large lump sums. “The Government is keen to cut the amount paid in lawyers’ fees — which often exceed the damages awarded by the courts.”
“The tariff scheme is similar to one brought in by the previous Tory government — amid stiff Labour opposition — to cut the cost of criminal-injuries compensation. Mr Milburn [Health Secretary in the Blair Cabinet] is determined to take an axe to the spiralling cost to the health service of legal claims which he believes are being driven by profiteering lawyers. ‘We need to get the lawyers out of the operating theatres and off the backs of doctors — and get doctors out of the courts,’ said a Health Department aide. ‘The amount of litigation is rising and causing distress not only to NHS staff but also to patients who find themselves drawn into protracted and upsetting legal battles.'” The Bar Council, representing barristers, has already attacked the proposals. (Joe Murphy and Jenny Booth, “Labour blocks big payouts to victims of NHS blunders”, Sunday Telegraph (U.K.), July 8).
August 9 — Why we lose workplace privacy. Employers are monitoring their employees’ email, web surfing logs and hard drives more than ever these days, and the number one reason is to protect themselves from lawsuits. “Almost every workplace lawsuit today, especially a sexual harassment case, has an E-mail component,” says one expert. Plaintiffs’ lawyers subpoena hard drives in search of sexually oriented jokes or other material they can use to build a case, and rather than leave themselves vulnerable many companies conduct pre-emptive searches before disputes arise. (Dana Hawkins, “Lawsuits spur rise in employee monitoring”, U.S. News & World Report, Aug. 13).
August 9 — “Nudist burned while fire-walking files lawsuit”. “A nudist whose feet were burned while fire-walking has filed a lawsuit that accuses event organizers of leading participants to believe the stunt was safe.” The suit by Eli Tyler of El Cajon claims that the organizer “told participants the walk would be ‘a safe and spiritual experience'” but that seven participants were hospitalized with severe burns to their feet. The owner of the resort where the event took place, who is also named as a defendant in the action, “said participants were warned of the dangers and each agreed not to sue if they were injured.” (AP/Sacramento Bee, Aug. 8).
August 9 — Forbes on lead paint suits, cont’d. The “suits claim the companies misrepresented the paint as safe for use around children. Evidence? In 1920 National Lead told retailers to be nice to children because they might someday be customers. More: In 1930 the company distributed coloring books with poems and a cartoon drawing of its Dutch Boy character. Hard to imagine children having much influence on paint purchases.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).
August 7-8 — Victory in California. By a 5-1 margin, the California Supreme Court has ruled that crime victims cannot sue gun manufacturers over criminals’ misuse of their wares. In doing so it reinforces a trend so clear that some day it might even sink in to the folks over at the hyperlitigious Brady Campaign: “Every state high court and federal appellate court in the nation to consider such lawsuits has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.” (“California Supreme Court Says Gunmaker Not Liable in Killing Spree”, AP/Fox News, Aug. 6).
August 7-8 — Wrong guy? Doesn’t seem to matter. Antonio Vargas, a bus driver in Northern California, has the same name as an Antonio Vargas who owes child support in San Bernardino County, in Southern California. He’s been trying to disentangle himself from attachments, process servers and other legalities aimed at the other Mr. Vargas, but with at best temporary success — and it’s been going on for twenty years, he says. An official with the desert county acknowledges that Mr. Vargas’s protestations of being the wrong guy were probably ignored for a while; so many men falsely use that excuse that why should they listen?, seems to be the official’s reasoning (Dan Evans, “It’s the wrong Vargas”, San Francisco Examiner, Aug. 2).
August 7-8 — Trial lawyers vs. OxyContin. The breakthrough pain medication, a timed-release opioid, has brought unprecedented relief to sufferers from advanced cancer and chronic disease but can result in addiction if improperly prescribed and is unusually easy to abuse on purpose: users crush the time-release capsules into a powder that yields a heroin-like high when snorted or injected. Now, amid public alarm about its emergence as “hillbilly heroin”, lawyers have filed billions of dollars in claims against the drug’s manufacturer, Purdue Pharma, distributor Abbott Labs, and other companies; they’re also advertising heavily for clients, and the state of West Virginia has stepped in with its own suit. Well-known Cincinnati tort lawyer Stanley Chesley, of breast-implant and hotel-fire fame, is “working with a group of lawyers from Ohio, Kentucky and West Virginia on similar cases.” If such litigation drives the drug off the market, a million or more legitimate users may be forced back to lives of agonizing pain, but that won’t be the lawyers’ problem, now, will it?
SOURCES: “Maker of OxyContin is hit with lawsuits”, AP/Baltimore Sun, July 27; Paul Tough, “The Alchemy of OxyContin: From Pain Relief to Drug Addiction”, New York Times Magazine, July 29 (reg); National Clearinghouse for Drug and Alcohol Information; Amanda York, “1st Ohioan named in Oxy suit”, Cincinnati Enquirer, July 10; Norah Vincent, “A New ‘Worst’ Drug Stirs Up the Snoops”, Los Angeles Times, July 19; Eric Chevlen, “A Bad Prescription from the DEA”, Weekly Standard, June 4; “W.Va. files first state suit against OxyContin firms”, AP/Charleston Daily Mail, June 12; Common Sense for Drug Policy; “Oxycontin Lawsuit Aims For Class-Action Status”, Roanoke Times, June 19; many more links (Google search on “Oxycontin + lawsuits”). If you click on “OxycontinInfoCenter.com“, a sponsored link on Google, you get “Oxycontin law info and lawyers who specialize in Oxycontin litigation” (see also July 25).
August 7-8 — Dotcom wreckage: sue ’em all. Class action firms are suing not only investment banks and directors of failed dotcoms, but also executives and lenders. (Joanna Glasner, “Bankrupt? So What? Lawyers Ask”, Wired News, Aug. 6).
August 7-8 — “Judge orders parents to support 50-year-old son”. “In what could turn out to be a landmark decision, a Ventura County Superior Court judge ordered a Ventura couple to support their 50-year-old son indefinitely. Judge Melinda Johnson ruled two weeks ago that James and Bertha Culp of Ventura pay their son David Culp $3,500 a month for living expenses because he is incapable of supporting himself. Culp suffers from depression and bipolar disorder.” The son had practiced as an attorney for 19 yearss, but his practice fell apart and he went on disability. “Johnson based her ruling on state law, Family Code section 3910(a). It states that ‘the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means,'” language which the judge called “unambiguous on its face”. Representatives of the National Alliance for the Mentally Ill called the decision a “bad judgment” that could “set a terrible precedent”. (Leslie Parrilla, Ventura County Star, Aug. 2).
August 6 — “Airline restricts children flying alone”. America West Airlines, changing its previous policy, has announced that it will no longer allow children of 11 years or less to fly alone on connecting (as opposed to nonstop) routes. Last month a young girl traveling from L.A. to Detroit was mistakenly allowed to board a connecting flight to Orlando, and it took nearly a day before she was reunited unharmed with her father. The father, Bill McDaniel, said he was thinking of hiring a lawyer and suing because the airline’s proffered free ticket and other compensation was not enough. So now all families, including those who believe their kids can handle the responsibility, stand to lose a freedom that saves them a lot of money as well as hassle (Channel 2000, Aug. 3; “Airline Puts Young Girl On Wrong Plane”, July 18).
August 6 — Big fish devour the little? After hobbyists on a listserv dealing with aquatic plants criticized one online pet store for allegedly “horrible” service and worse, its operator proceeded to sue various individual posters who he says defamed his company with such comments. His complaint asks for $15 million in compensatory and punitive damages. (Aquatic Plants Mailing List listserv; discussion; TheKrib.com; AquariaCentral forums; Usenet rec.aquaria.freshwater.plants) (see letter to the editor from Robert Novak, owner of PetsWarehouse.com, Aug. 10)(see extensive update on case May 22-23, 2002).
August 6 — When trial lawyers help redesign cars. Class action lawyers suing GM over its old C/K full-size pickup trucks are venturing onto what you might think is perilous ground by proposing a retrofit change to the vehicles’ design, with effects on performance that can’t be foreseen with complete certainty. Aren’t they worried that if the design turns out to malfunction in some way they’ll be held responsible for the consequences? (Well, no, they probably aren’t, since they’ll just find some way to blame the carmaker if that happens.) (Dick Thornburgh (former U.S. attorney general), “Designing Ambulances and Retrofitting Class Actions”, National Law Journal, July 18).
August 6 — Mailing list switch. If you’ve been on the list to receive our periodic announcements of what’s new on Overlawyered.com, you should by now have received an email from Topica.com, our new list-hosting service, inviting you to continue your subscription. To do so, just respond to their email. If you take no action you’ll automatically be dropped from the list as ListBot closes down. If you discarded or didn’t receive the Topica email, or would like to join the list for the first time (it’s free), just visit our mailing list page.
Another logistical note: we’ve now established a separate archives page that makes it easier to navigate Overlawyered.com‘s archives without repeatedly having to download large pages. Just as we encourage you to bookmark our search page if you expect to perform frequent searches at our site, so we encourage you to bookmark the new archives page if you expect to browse our archives often.
August 3-5 — “Lawyers pay price for cruel hoaxes”. “Two Florida lawyers, whose paternity hoaxes last year cost families of four Alaska Airlines crash victims hundreds of thousands of dollars to rebut, finally will have to pay for a smidgen of the damage they inflicted.” Attorneys Robert Parks and Edgar Miller of Coral Gables, Fla. filed suits on behalf of four distinct sets of supposed secret Guatemalan heirs claimed to have been fathered by men who perished on the doomed flight without direct heirs (see Nov. 29, 2000, April 10, 2001). The suspiciously multiple nature of the filings was noticed only by chance, and the outraged families of the deceased had to spend hundreds of thousands of dollars to fend off the phony heirs’ claims. Now, Parks and Miller have agreed in a court-ordered mediation to pay $225,000 toward the families’ costs; Seattle lawyer Harold Fardal, who assisted their claims, will help split the cost, though it doesn’t begin to cover the expense the families faced in rebutting the claims. “Miller, by his own admission, has [represented survivor claims] as many as 100 times before, mostly in Central and South America.”
To investigate the phony claims, the surviving Clemetson and Ryan families sent investigators to Guatemala, where the supposed secret heirs lived. “But an investigator and a court-appointed guardian found that the birth records were forged. They found that the alleged grandmothers couldn’t keep the girls’ names straight, couldn’t say where their own daughters were born or how they died, couldn’t remember their own addresses and had no knowledge of the details alleged in the inheritance claims. In February, DNA tests proved the girls weren’t related to the men.” The families now say they may file a complaint with the Florida bar against Parks and Miller. (Candy Hatcher, “Lawyers pay price for cruel hoaxes”, Seattle Post-Intelligencer, Aug. 2; “Claims against two Flight 261 victims thrown out” (AP), Feb. 7; “Heirs claimed in Flight 261 twist” (AP), Nov. 22, 2000).
According to Seattle Post-Intelligencer columnist Candy Hatcher, Seattle attorney Mark Vohr, who later withdrew from the case, sent the same photograph of two little Guatemalan girls to two different families against whom he was pursuing secret-heir claims. And: “The woman who was providing temporary housing for the girls and their ‘grandmothers’ said she was working with a ‘lawyer’ in Florida who had helped her when both her husbands died in aviation disasters in Central America. The ‘lawyer’ turned out to be an investigator for the Florida lawyers.” (“False claims add to the agony of a tragedy”, Feb. 26). See also Richard Marosi, “Unexpected ‘Heirs’ of Flight 261”, L.A. Times, Jan. 31, no longer online at Times site but Googlecached. (DURABLE LINK)
August 3-5 — More from Judge Kent. Yesterday we linked to a scorching opinion by Judge Samuel Kent of the U.S. District Court for the Southern District of Texas, excoriating what he saw as incompetent pleadings by the lawyers on both sides of a maritime injury case. Reader Keith Rahl points out that this is just the most recent in a series of colorful opinions from Judge Kent’s pen, and directs our attention to two of them that have been reprinted at The Smoking Gun: one in which he orders a change of venue (to the District of Columbia) for a suit that lawyers for the government of Bolivia had filed in his Galveston courtroom against the tobacco industry; and this one turning down a defendant’s request to transfer a case to Houston due to claimed travel inconveniences.
August 3-5 — Dra-clonian. By a margin of 265 to 162, the U.S. House of Representives has voted “to approve the Human Cloning Prohibition Act of 2001. It would impose steep criminal and civil penalties on any individual violating the ban — even scientists who create cloned human cells solely for research purposes. The penalties make participation in human cloning in any way — from creating cloned human cells to patients receiving medicine based on such research done abroad — subject to a felony conviction that could bring a 10-year prison term and, if done for profit, civil penalties of more than $1 million.” (Megan Garvey, “House Approves Strict Ban on Human Cloning”, L.A. Times, Aug. 1; Kristen Philipkoski, “What Side Effects to a Clone Ban?” Wired News, Aug. 1) The best critique we’ve seen of the stampede to legislate has come from Virginia Postrel at her VPostrel.com (several entries in recent weeks; also check out her new commentary on firearms and journalists).
August 2 — Fee fights. They’re worse than catfights, aren’t they? Lawyers are snapping and swatting at each other over the fee spoils of several dubious but lucrative mass-tort cases. “Wallace Bennett, former associate dean at the University of Utah’s law school, is suing well-known lawyer Robert DeBry, claiming his old friend is cheating him out of money he earned while they worked together on national breast implant litigation. … Bennett was part of a legal team that included former U.S. Sen. Frank E. Moss and former Utah Supreme Court Justice D. Frank Wilkins. … [He] alleges breach of contract, intentional breach of fiduciary duty, conversion and fraudulent transfer of assets, and usurpation of business opportunities.” (Elizabeth Neff, “Former U. of U. Dean Sues Ex-Law Partner Over Fees”, June 28, Salt Lake Tribune, no longer online on Tribune site but Googlecached). The breast implant campaign was based on charges of systemic illness soon refuted in scientific studies, which didn’t stop trial lawyers from cashing in a $7 billion settlement.
Meanwhile: “Several of the plaintiffs’ lawyers in the massive Orthopedic Bone Screw case are putting the screws to each other as an ugly battle has erupted” over how a court divided $12 million in fees deriving from a $100 million settlement by Acromed Corp. Among the charges flying: fraud, contempt of court and abuse of process. (More on the bone screw litigation: Oct. 24, 2000.) (Shannon P. Duffy, “Disgruntled Lawyers Sue in Louisiana to Get Bigger Share of Bone Screw Fees”, The Legal Intelligencer, July 18). Last but certainly not least, anti-tobacco prof. Richard Daynard has followed through on his pledge to sue legal sultans Richard Scruggs and Ron Motley, claiming they’d promised to cut him in on a 5% contingency share of the maybe $3 billion they stand to haul in from the tobacco caper. “In his role as intellectual godfather of tobacco litigation, Daynard has been quoted in news articles hundreds of times — though always as a public health advocate, never as a private litigator.” (see April 21, 2000). Scruggs and Motley “said that if Daynard had indeed been a member of their legal team, his attacks on a settlement proposal favored by their clients, the states, would have been a serious ethical lapse.” (Myron Levin, “Tobacco Wars’ Huge Legal Fees Ignite New Fight”, Los Angeles Times, May 20, reprinted at NYCClash.com)
August 2 — “Baskin-Robbins lawsuit puts family in dis-flavor”. The Janze family of Alamo, Calif. is surprised to have gotten such a disrespectful reception in the press and on the Web for its lawsuit against the ice cream chain over a frozen confection strewn with fizzy “Pop Rocks”, a scoop of which they say sent their 5-year-old daughter Fifi to the hospital. “Shrek Swirl” is “one of several ogre-related treats tied to the animated movie ‘Shrek’.” Baskin-Robbins spokeswoman Debra Newton “said the Janzes’ complaint has been the only one reported to the company. ‘What we can tell you is that we have absolutely no indication that there are any safety concerns whatsoever with Shrek Swirl,'” Newton said. (Claire Booth, Knight-Ridder/Bergen County (N.J.) Record, July 19).
August 2 — “Ouch”, they explained. It’s every lawyer’s nightmare: to be the target of a judicial opinion as scathing as this one from federal judge Samuel Kent (S.D. Tex.). Neither side’s attorney gets out unscorched (Bradshaw v. Unity Marine, June 26, reprinted at National Review Online).
August 1 — Batch of reader letters. Latest assortment covers everything from exploding Pop-Tarts and special-ed “mainstreaming” to small claims reform, IOLTA and zero tolerance, and includes an explanation of an unusual photograph sent in by a reader.
August 1 — “Businesses bracing for flood of lawsuits after state court ruling”. “If you wear glasses, use a hearing aid or take medication for high blood pressure, you now may be legally disabled in California.” Sacramento’s homegrown version of disabled-rights law is even more sweeping than the federal Americans with Disabilities Act, and the divergence has been widened by a new state law that “significantly broadens the definition of disabled and throws open the courthouse doors to workers with a wide range of diagnosable ailments — from depression to chronic back pain.” Things got even dicier “when a state appeals court in Los Angeles ruled that the new law applies retroactively to potentially thousands of cases that arose before Jan. 1, when the law went into effect. Employers are bracing for an onslaught of claims, warning that the statute signals open season on business.” (Harriet Chiang, “Businesses bracing for flood of lawsuits after state court ruling”, San Francisco Chronicle, July 29; Mike McKee, “California Disability Rules Declared Retroactive: State Supreme Court May Have to Referee”, The Recorder, July 27).
August 20-21 — “Man suing after drunken driving crash”. Nashua, N.H.: “Three years ago, a Merrimack man crashed his Jeep in a Londonderry sand pit, killing a friend. Now, he’s suing the pit’s owner and the couple who threw the party where he was drinking before the crash. Albert Gordon, 36, charges Jay and Susan Barrett of Londonderry were negligent in letting him get drunk at a company party and didn’t warn him and other guests of the dangers of four-wheeling in the sand pit next door. He alleges the pit owner, Continental Paving Inc., should have done something to keep people off its property or warn them of the danger.” Gordon was convicted of aggravated driving while intoxicated; prosecutors said his “blood alcohol level after the accident was more than twice the legal limit for driving.” (AP/Boston Globe, Aug. 16)
August 20-21 — Jury orders Cessna to pay $480 million after crash. Sure, go ahead and let trial lawyers swallow the light aircraft industry — no doubt they’ll do a better job running it. Tobacco-fee angle: one of the plaintiff’s firms in the case is that of Fred Levin, who hauled in an estimated $300 million representing Florida in the tobacco suit, gave enough to the University of Florida’s law school to get it named after himself, and clearly knows how to reinvest his winnings. (Bill Kaczor, “Pensacola Jury Returns $480 Million Verdict in Plane Crash”, AP/TBO.com, Aug. 16; Molly McMillin, “Jury says Cessna is at fault in crash”, Wichita Eagle, Aug. 17; Shannon P. Duffy, “Florida Jury Sets $480 Million Verdict in Crash of Defective Plane”, The Legal Intelligencer, Aug. 17).
August 20-21 — Welcome LinkyDinky, FluffyBunny visitors. The popular best-of-the-web service LinkyDinky gives us a nod, describing Overlawyered.com as a site that “chronicles the sad (and scary) state of affairs due to our litigious attitudes, including bizarre examples of greed overcoming logic” (Aug. 15). We’ve also newly won mention on FluffyBunny.com, which says of us: “Sites like this are always a good read when you’re tired of the dozen shark stories, recaps of Chandra Levy timelines and discussions of the obvious” (first Aug. 16 item). LinkyDinky, FluffyBunny — could a pattern be developing here? Also: Australia’s Blackstump (Aug. 8) and HalluciNETting; Pop-o-ganda.com (“control- trademark – delete”), RidersForJustice.com (“links of interest to bikers”/”Freedom Fighter” section), Daily Frank weblog (July 26), Teri O’Brien (“speaker, author, motivator”), Laipple family of Tulsa, Okla., GentleWolf.com.
August 20-21 — Updates. More new developments in familiar stories:
* By a 9-5 vote, the Fifth Circuit has paved the way for a new trial for Texas death row inmate Calvin Burdine on the grounds that his lawyer was asleep during parts of his trial. The dissenting judges argued that Burdine’s guilt was clear from his confession and other evidence and that his lawyer’s alleged propensity to snooze off made no difference in the case’s outcome. The dissent “also noted that Mr. Burdine waited 11 years before raising the ‘sleeping lawyer’ claim and even praised [his lawyer’s] performance after the trial.” (see Feb. 12) (Diane Jennings & Ed Timms, “Court sides with inmate in sleeping-lawyer case”, Dallas Morning News, Aug. 14).
* In California, a state panel has ordered Judge Patrick Couwenberg off the bench for lying extensively about his background during the process that led to his appointment, despite his lawyer’s plea that Couwenberg “is a victim of a mental condition called ‘pseudologia fantastica’ for which he is undergoing treatment” and which causes him to fib in a compulsive way (see June 7). (Erica Werner, “Los Angeles Superior Court judge removed from bench for lying”, Sacramento Bee, Aug. 16; Sonia Giordani, “L.A. Judge Removed From Bench for Lies About Past”, The Recorder, Aug. 17).
* “A federal judge has rejected a proposed settlement of an antitrust suit against the National Football League and its member teams over the pricing structure of the ‘Sunday Ticket’ on satellite television after finding that consumers weren’t getting enough money and that the plaintiffs’ lawyers were getting too much. … [The judge said] courts have a duty to reject such settlements so that plaintiffs’ lawyers will be discouraged in the future from bringing weak cases.” (see June 5). (Shannon P. Duffy, “Judge Rejects NFL Antitrust Settlement That Pays Lawyers Too Much, Consumers Too Little”, The Legal Intelligencer, Aug. 20).
* In the eight-year-long saga that has pitted Marilyn Bartlett’s demands for handicap accommodation against the resistance of the New York State board of bar examiners, federal judge Sonia Sotomayor has ruled that the board must allow Bartlett four days, rather than two, to complete the bar exam because of her dyslexia and learning disability (see our editor’s column in Reason, Feb. 1999) (Mark Hamblett, “Learning-Disabled Woman Wins Added Time for New York Bar Exam”, New York Law Journal, Aug. 17; Daniel Wise, “Review of Dyslexic’s Bar Exam Ordered by 2nd Circuit”, New York Law Journal, Aug. 31, 2000).
August 17-19 — Contrarian view on PBR. “The managed care industry is not complaining that loudly about the latest legislation.” (George M. Kraw, “The Patients’ Bill of Rights” (commentary), The Recorder, Aug. 10). Also: Philip K. Howard, “A Cure for the Patient’s Bill of Rights,” AEI-Brookings Joint Center for Regulatory Studies Policy Matters #01-18 June; Karlyn H. Bowman, “Public Favors Patients’ Bill of Rights, but It’s Not a Top Priority,” Roll Call, June 28.
August 17-19 — “The arithmetic of arsenic”. U. of Chicago law prof Cass Sunstein, a frequent contributor to the New Republic and mentioned as a possible Supreme Court pick in a future Democratic administration, examines the role of cost-benefit analysis in the recent EPA arsenic controversy, and concludes that reasonable assumptions could have tipped the decision either way: there is “no obvious, correct decision for government agencies to make”. (AEI/Brookings Joint Center for Regulatory Studies, Working Paper 01-10, Aug. — abstract/full paper (PDF) (see also Apr. 18))
August 17-19 — From the evergreen file: humiliation for dollars. How much embarrassment would you be willing to put up with on the witness stand just to nab a few thousand dollars more in damages after a fender-bender in which “not even a taillight was broken”? As much as this Connecticut couple? (Colleen Van Tassell, “Good Thing It Wasn’t A Tow Job”, New Haven Advocate, March 11, 1999).
August 16 — Bias suits can tap personal assets of innocent higher-ups. “Victims of housing discrimination have a direct claim on the personal assets of business owners and officers whose employees were at fault and need not go through the usual hurdles to pierce the corporate veil, the 9th U.S. Circuit Court of Appeals ruled on July 31.” The court ruled that a mixed-race couple and homebuilder could file suit against David Meyer, the founder of Triad Realty in Twenty-Nine Palms, Calif., over the discriminatory failure of one of the realty firm’s agents to present the couple’s bid on a house, and that Meyer’s personal assets could be proceeded against if he were the owner or proprietor whether or not it could be shown that he knew anything about the discrimination. (Gary Young, “Realtor Liable for Agent Bias, 9th Circuit Rules”, National Law Journal, Aug. 14).
August 16 — “Deputies Sue Diabetic Driver They Beat After Traffic Stop”. Maryland: “Two Frederick County sheriff’s deputies are suing a diabetic man they beat after a traffic stop, contending his complaints about the incident hurt their careers. Eric J. Winer and Jeffrey A. Norris are seeking more than $68,000 from Frederick T. ‘Tom’ Moore IV of Virginia.” In 1998 officers Winer and Norris chased and blocked Moore’s erratic truck on the assumption he was drunk, then beat and doused him with pepper spray and let their dog into his vehicle when he failed to respond to their commands. It turned out, however, that he had been slipping into a diabetic coma. “Moore spent four days in the hospital for dog bites and other wounds from the beating.” In their lawsuit, “the officers say the inquiries and publicity portrayed them unfairly. They contend Moore’s criticism of them in media interviews was ‘highly offensive,’ considering they had ‘prevented serious harm, injury and/or death’ to Moore.” (WJLA/Yahoo, Aug. 10).
August 16 — How Germans see American injury law. “In Germany, lawyers and the media look upon the American tort system with a mixture of fascination, envy, and horror.” Perhaps surprisingly, the difference between the two systems is not so much in the substantive scope of liability; in fact, German law in some respects is more liberal than American, imposing a “duty to rescue” that American courts have rejected, for example. Instead, the differences have more to do with damages: ours are both far higher and far more unpredictable. “It is well documented that the scale of damages resulting from successful tort litigation in Germany is at least one order of magnitude lower than in the US. Thus, where a broken leg in a car accident in New York City might produce a jury award of $300,000, in Berlin it would produce an award of around $30,000.” At the same time, “in comparison with the German tort system the American system is wildly more unpredictable at every level”: many cases result in low compensation or none even though they seem as deserving as the jackpot cases.
“The Germans find the variation in our damages awards totally unacceptable. … [They feel] we should give the same amount to people for the same kind of injury. The Germans enforce a semblance of order with respect to pain and suffering damages by collecting together all the damage awards produced in every trial court in Germany in a given year. This book, called the Tabellen, is published and used by judges and lawyers to estimate what a damage award in a new case should be.” The American system is “actively opposed” to any such approach (more on “scheduled compensation” abroad: Aug. 10). (Anthony J. Sebok (professor, Brooklyn Law School), “How Germany Views U.S. Tort Law”, FindLaw.com, July 23) (via Arts & Letters Daily).
August 16 — New daily traffic record on Overlawyered.com. Upwards of 11,700 pages served on Tuesday, helped along by that excellent John Leo column and by our first announcement mailing since we moved the list to Topica (though we bunglingly forgot to include in it a link to this site’s front page, an omission we’ll rectify in the future). Thanks for your support!
August 15 — John Leo on Overlawyered.com. The columnist pulls together a fresh batch of “news from the annals of zero tolerance and the continuing campaign to make the culture ever more deranged”. He gives generous credit to the website you are perusing at this very moment, which “reports brightly on the amazing excesses of the litigious society” (“It’s a mad, mad world”, U.S. News/TownHall.com, Aug. 14). Some recent zero-tolerance cases he describes, which hadn’t made it onto this site yet: “A New Jersey student made a baseball bat in shop class, then was expelled for refusing to hand it over to a teacher as a dangerous weapon. A National Merit scholar in Fort Myers, Fla., missed her graduation ceremony and was sent to jail after a kitchen knife was found on the floor of her car. She said the knife had fallen there when she moved some possessions over the weekend. At a Halifax, Nova Scotia, school, a ban against throwing snowballs also prohibited all arm motions that can be interpreted as possible attempts to throw something at anyone.”
August 15 — Navegar not nailed. Pundit/law prof Erwin Chemerinsky was sure that Navegar’s sued-over TEC-DC9 weapon, though it sold by the hundreds of thousands, had no legitimate uses whatsoever. Notes Reason Online‘s Jacob Sullum: “it was galling how readily anti-gun activists and politicians leaped from the premise that thugs liked a given gun to the conclusion that no one else did”. (“The Evil Gun”, Aug. 14; see also “California Dreamin'”, WSJ/OpinionJournal.com, Aug. 10; “Gun makers’ liability (editorial), Las Vegas Review-Journal, Aug. 7). And given voter trends in last November’s election, many national Democrats are racing to distance themselves from the agenda of the litigate-and-confiscate antigun groups. “More than any other issue, some analysts say, unease about gun control helped defeat presidential candidate Al Gore in several traditionally Democratic Southern and border states — any one of which would have been enough to put him in the White House.” (Susan Page, “Democrats back off on firearms”, USA Today, Aug. 14). Similarly: James Dao, “New Gun Control Politics: A Whimper, Not a Bang”, New York Times, March 11; Juliet Eilperin and Thomas B. Edsall, “For Democrats, Gun Issue Losing Its Fire”, Washington Post, Oct. 20, 2000.
August 15 — “Girl from Ipanema is sued over the song she inspired”. “It was as a sultry 18-year-old that Heloise Pinheiro inspired Brazil’s best-known tune. Now aged 57, she is being threatened with legal action by the songwriters’ heirs, who claim that her boutique, ‘The Girl From Ipanema’, infringes their copyright.” (Philip Delves Broughton, Daily Telegraph (U.K.), Aug. 13; “The churls from Ipanema” (editorial), Aug. 13).
August 13-14 — Why she’s quitting law practice. Karen Selick, a libertarian attorney who writes a column for Canadian Lawyer and practices in a small community in Ontario, is getting out of the business and explains why on her website. To begin with, there’s the aggravation and emotional wear and tear of matrimonial law, the bulk of her practice. “Then there’s the state of the law itself. When I started in this field in 1985, there was at least a modicum of cohesiveness to the case law. That has now vanished completely. Not only is the law different from what it was in 1985 — it’s different from what it was last month or last week. Once upon a time, you could give your clients a pretty good idea of the outcome they might expect if they went to court. Now all you can tell them is that every case is a crapshoot.” And then there’s the law’s tilt against husbands and fathers, “to the point where representing women in a manner that protects you from negligence suits requires a lawyer to make claims that I consider to be unethical, while representing men means you are perpetually on the losing side.” (“A Twist on Gresham — Bad Laws Drive Out Good Lawyers”, undated, late July).
August 13-14 — “Shark-bite victim turns to Cochran”. By reader acclaim: “The family of a highly publicized shark-attack victim mauled while swimming at a Bahamian resort has consulted a famous legal barracuda to represent them in a possible suit against the hotel: Johnnie Cochran.” The family of 36-year-old Krishna Thompson “has accused lifeguards at the Our Lucaya Beach & Golf Resort on Grand Bahama of lingering on the beach during the attack. … The resort has insisted that lifeguards acted swiftly in pulling Thompson out of the water. The resort’s statements were backed by a Bahamian doctor who interrupted his morning stroll to help.” (Tere Figueras, Miami Herald, Aug. 10).
August 13-14 — “We often turn irresponsibility into legal actions against others”. Two events in the Tampa Bay area caught the eye of St. Petersburg Times columnist Robyn Blumner: the criticism that greeted the city of St. Petersburg for declining to cancel a free fireworks display in the face of an approaching lightning storm, even though it might tempt residents to go outside; and “a sexual harassment lawsuit filed by Nicole Ferry against the University of South Florida, in which the state of Florida agreed to give her $25,000″ for having subjected the student to a sexually explicit photograph (warned of in advance) as part of her university art class. The two news reports suggest to Blumner that our sense of personal responsibility and resilience is slipping fast, and remind her of a certain website which (among other functions) “documents the way predatory lawyers help people turn their personal failings into lawsuit fodder.” Which cases on this site does Blumner “find most appalling?” Read the column and find out. (July 15).
August 13-14 — Tobacco: judge cuts Boeken award. In Los Angeles, Superior Court Judge Charles McCoy has upheld $105 million worth of a jury’s $3 billion award to smoker Richard Boeken against Philip Morris (more). The company has vowed to appeal, citing among other reasons the judge’s refusal to admit evidence that would have shed light on Boeken’s credibility, in particular his record of criminal convictions on fraud and other charges. (Anna Gorman, “Huge Award to Smoker Cut by Judge”, L.A. Times, Aug. 10; Cadonna M. Peyton, AP/Daily Southtown, Aug. 10). On the evidence exclusion issue, see “Tobacco Giant Cites Plaintiff’s Credibility; Courts: Philip Morris Says Smoker’s Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion,” Los Angeles Times, July 29, summarized in Columbia Law School Faculty In the News, Summer 2001 (scroll to “Prof. Richard Uviller”). See also Paul Campos, “Outrageous verdicts are genteel theft”, Rocky Mountain News (Denver)/Jewish World Review, June 9).
August 13-14 — Tobacco: Boston Globe on state-settlement aftermath. Meanwhile, a report from the National Conference of State Legislatures confirms what is already well known, namely that states are spending only a small fraction of their $246-billion tobacco windfall on programs to hector smokers into quitting, propagandize youngsters against the habit, and vilify tobacco-company execs in mass-media ads. The Boston Globe‘s coverage strings together many quotes from anti-tobacco activists flaying the settlement as not tough enough, but seems unable to find anyone willing to blast the settlement from the other direction, as an extortive deal premised on bad law, nor anyone who will point out the cozy nature of the alliance between many AGs and trial lawyers with whose firms they often had personal and campaign-finance links. The story also misses the reason why tobacco companies have found it so easy to recover the settlement’s costs in higher prices, namely the settlement’s provisions cartelizing the industry and hobbling new entrants (see July 29, 1999) — but then, none of the groups quoted in the article (anti-tobacco activists, state governments, trial lawyers, tobacco companies themselves) have any interest in shining light in that particular dark corner. Incredibly, even Mississippi AG Michael Moore and his good friend trial lawyer Dickie Scruggs, who led the whole crusade, now have the nerve to criticize the outcome as “perverse”, ineffective and so on. Is Scruggs saying he was outnegotiated or that he didn’t get his clients that great a deal, and if so is he going to give back some of his estimated billion in fees? (Thomas Farragher, “Little of $246b deal fights tobacco”, Boston Globe, Aug. 9). The same paper reports on the ugly feud over what Massachusetts owes to the law firm Brown Rudnick, which represented the state in the settlement and now says $178 million in fees aren’t enough. “‘If you divide what we’re getting, which is $178 million over 25 years, and then divide that by [about 50] partners, you’ll see that it’s certainly significant. But on an annual basis, it’s not something that anybody can retire on,’ said M. Frederick Pritzker, chairman of Brown Rudnick’s litigation department.” (Thomas Farragher, “State, lawyers fight over settlement fees”, Boston Globe, Aug. 10). Daynard-cite dishonor roll: both the Globe‘s Aug. 9 entry and the L.A. Times‘s Aug. 10 (see above) quote Northeastern U.’s Richard Daynard on tobacco suits without mentioning his interest as a contingent-fee claimant to state settlement booty (the Globe‘s Aug. 10 article does mention this in passing, however).
August 31-September 2 — Study: DPT and MMR vaccines not linked to brain injury. Some children experience fever and febrile (fever-related) seizures after being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles, mumps, and rubella (MMR) vaccine and it has long been feared, to quote the New York Times‘s summary of a massive new study, “that those rare fever-related seizures may be linked to later autism and developmental problems. The fears are unfounded, the [new] study concluded.” The study, which appears in the New England Journal of Medicine, was of medical data for 639,000 children and was conducted with the assistance of the Centers for Disease Control and Prevention. “There are significantly elevated risks of febrile seizures after receipt of DTP vaccine or MMR vaccine, but these risks do not appear to be associated with any long-term, adverse consequences,” concludes the abstract.
All of which comes too late to prevent the legal devastation of much of the childhood vaccine industry at the hands of trial lawyers, an episode that climaxed in 1986 when Congress stepped in and established a no-fault childhood vaccine compensation program (see Nov. 13, 2000). According to the Washington Post, one Milwaukee lawyer alone “has won million-dollar judgments or settlements in nearly a dozen DPT cases.” “The jury hated the drug companies so bad when we got through with them that they would have awarded money no matter what,” boasts the lawyer, Victor Harding. (Arthur Allen, “Exposed: Shots in the Dark”, Washington Post Magazine, Aug. 30, 1998). If the new study is correct, however, the vaccines may not have been responsible for the occurrences of permanent developmental disability that so often led to high awards. Worldwide alarm over the vaccines’ feared side effects, stoked in no small part by the litigation, contributed to a decline in immunization rates that resulted in a resurgence of the diseases in several countries, killing many children. (DURABLE LINK)
SOURCES: William E. Barlow, Robert L. Davis et al, “The Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps, and Rubella Vaccine”, New England Journal of Medicine, Aug. 30 (abstract); Philip J. Hilts, “Study Clears Two Vaccines of Any Long-Lasting Harm”, New York Times, Aug. 30 (reg); and dueling headlines: Daniel Q. Haney, “Two Vaccines Linked to Seizures”, AP/Yahoo, Aug. 29, and Gene Emery, “Researchers: Vaccines Carry Little Risk of Seizures”, Reuters/Yahoo, Aug. 29. Adds AP: “In April, an Institute of Medicine committee issued a report saying there is no evidence that MMR causes autism, as some have speculated.” (more)
August 31-September 2 — Radio daze. The nation’s largest radio chain, Clear Channel, is known for hardball lawyering — as when it sued Z104, a rival station in Washington, D.C., for having the temerity to hold a listener contest in which the prize was tickets to an outdoor concert in Los Angeles staged by a Clear Channel subsidiary. Violated their client’s “service mark”, the lawyers said (Frank Ahrens, “Making Radio Waves”, Washington Post, Aug. 22).
August 31-September 2 — “Man Pleads Guilty to Use of Three Stooges’ Firm in Fraud Scheme”. In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and other institutions out of $1 million in a scheme in which he “used the name of the slapstick comedy trio’s fictional law firm Dewey, Cheatham and Howe to obtain cashier’s checks” (more on that illustrious firm: Google search). “It did seem just a bit unusual for a company name,” said a bank officer who alerted the FBI (AP/FoxNews, Aug. 27).
August 29-30 — Washington Post on class action reform. “No portion of the American civil justice system is more of a mess than the world of class actions. None is in more desperate need of policymakers’ attention.” Excellent Post editorial which should help fuel reform efforts (“Actions Without Class” (editorial), Washington Post, Aug. 27).
August 29-30 — Firefighter’s demand: back pay for time facing criminal rap. David Griffith, a Hispanic firefighter in Des Moines, Iowa, “has sued city officials, alleging racial bias in their refusal to give him back pay for a leave of absence after he was arrested.” Griffith went on a six-month unpaid leave after he “was arrested in December 1999 on three counts of third-degree sexual abuse involving a then-22-year-old woman. The charges were dropped in May 2000 after Griffith pleaded guilty of assault with intent to inflict injury and harassment. … In his lawsuit, Griffith said he ‘was treated less favorably than non-Hispanic employees and believed such treatment was based on race’. … City attorney Carol Moser said Des Moines officials never forced Griffith to take a leave of absence but simply granted his request.” (Jeff Eckhoff, “D.M. firefighter sues for back pay after arrest, alleges discrimination”, Des Moines Register, Aug. 24).
August 29-30 — “Trolling for Dollars”. Lawyers are turning aggressive patent enforcement into a billion-dollar business, and companies on the receiving end aren’t happy about it (Brenda Sandburg, “Trolling for Dollars”, The Recorder, July 31).
August 29-30 — Negligent to lack employee spouse-abuse policy? The husband of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her, then killed himself. Now her lawyer is suing the retailer, arguing (among other theories) that it should have had a policy to protect its employees from spousal abuse. (Shannon P. Duffy, “Employee Sues Wal-Mart Because Store Didn’t Protect Her From Husband’s Attack”, The Legal Intelligencer, Aug. 24).
August 29-30 — Updates. Further developments in perhaps-familiar cases:
* Extremist animal-rights group PETA, which not long ago cybersquatted on the domain ringlingbrothers.com where it posted anti-circus material, has prevailed in its legal battle (see July 3, 2000) to wrest the domain peta.org away from a critic which had used it for his contrarian “People Eating Tasty Animals” site (more/yet more). (Declan McCullagh, “Ethical Treatment of PETA Domain”, Wired News, Aug. 25).
* The Big Five Texas tobacco lawyers have enjoyed an almost perfect record of success so far in dodging investigation of their $3.3 billion-fee deal to represent the Lone Star State in the national tobacco litigation, but Texas Attorney General John Cornyn should not be counted out yet (see Sept. 1, 2000, May 22, 2000, June 21, 2001): last month he scored an advance for his long-stymied ethics probe when the Fifth Circuit ruled he should be given a chance to pursue state court proceedings aimed at putting the Five under oath about the lucrative arrangements (Brenda Sapino Jeffreys, “Texas Attorney General May Depose Tobacco Lawyers in State Court”, Texas Lawyer, July 30).
* Conceding that one of its execs did indeed use a disrespectful nickname for its Denver stadium (“the Diaphragm”, referring to its shape), the Invesco financial group agreed to drop its threatened defamation lawsuit (see July 5) against the Denver Post for reporting the remark (“Invesco won’t sue Post”, Denver Post, July 6).
August 27-28 — Clinical trials besieged. Since the Jesse Gelsinger case, where survivors of an 18-year-old who died in a gene-therapy experiment brought a successful lawsuit against the University of Pennsylvania, lawsuits have been burgeoning against universities, private health-research foundations and other sponsors of clinical trials and experimental medical treatments; one recent high-profile case targets the Fred Hutchinson Cancer Research Center in Seattle. The “suits have sent shudders through the biomedical community. … Some experts in the biomedical field believe the litigation will have a chilling effect on research that benefits humankind through scientific advancement. They also worry that volunteers will dry up.” A lawyer who specializes in the new suits makes a practice of suing not only researchers and deep-pocket institutions but also “bioethicists as well as members of institutional review boards, the volunteers charged with reviewing and approving clinical trials.” (on bioethicists, see also Oct. 6, 2000) (Vida Fousbister, “Lawsuits over clinical trials have doctors wary, but not quitting research yet”, American Medical News, April 16; Maureen Milford, “Lawsuits Attack Medical Trials”, National Law Journal, Aug. 21; Kate Fodor, “Insurance Companies Get Stricter on Clinical Trials “, Reuters/CancerPage.com, June 27; Christy Oglesby, “Volunteers sustain clinical trials”, WebMD/CNN, July 23).
August 27-28 — Recommended new weblog. Launched a few weeks ago, Instapundit by U. of Tennessee law prof Glenn Reynolds has already made it onto our must-read list with frequently updated commentary on such topics as gun laws, patients’ bill of rights legislation, abusive prosecution, the tobacco settlement, and stem-cell research. Also new among our “dailies” links (left column of front page) are Joshua Micah Marshall’s and Marshall Wittmann’s weblogs, both oriented toward political matters.
August 27-28 — “Jailed under a bad law”. “The arrest by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date — one that shows the need to revisit the rules Congress created to prevent the theft of intellectual property using electronic media,” contends the Washington Post in an editorial. Sklyarov wrote a program, legal in Russia, that enables users to defeat the copy-protection on Adobe’s eBook Reader system; the DMCA bans such programs even though they have uses unrelated to unlawful copying, and it does not require the government to prove in prosecution that facilitating piracy was part of a defendant’s intent. (Washington Post, Aug. 21; Julie Hilden, “The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov”, FindLaw, Aug. 10; Declan McCullagh, “Hacker Arrest Stirs Protest”, Wired News, July 19; Glenn Reynolds (see also other items in his weblog). More ammunition for anti-DMCA sentiment: Amita Guha, “Fingered by the movie cops”, Salon, Aug. 23.
August 27-28 — Urban legend alert: six “irresponsibility” lawsuits. Much in our inbox recently: a fast-circulating email that lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website? (DURABLE LINK)
NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.
August 27-28 — “Incense link to cancer”. Just when you thought it was safe to go back to the Sixties (BBC, Aug. 2). But not to worry, since it seems everything else in the world has also been linked to the dread disease: Brad Evenson, “Everything causes cancer — so relax”, National Post (Canada), Aug. 4.
August 24-26 — “Delta passenger wins $1.25 mln for landing trauma”. Outwardly uninjured after a terrifying emergency landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana jury that the episode had caused her to suffer post-traumatic stress syndrome and an aggravation of her pre-existing depression. The judge ruled that “her terror during the landing led to physical changes within the brain that could be defined as injury”. (Reuters/Yahoo, Aug. 23; PPrune thread) (more on white-knuckle lotto: Oct. 19, 2000, Oct. 8, 1999).
August 24-26 — “Cessna pilots association does some research…” “Last week’s decision by a Florida jury to ding Cessna to the tune of $480 million for allegedly faulty chair railings in a Cessna 185 has raised more than a few eyebrows,” reports AvWeb. “Cessna’s lawyers blamed the crash on pilot error — as did the NTSB final report — but the plaintiffs’ attorneys argued that the seat-latching mechanism was defective, and the seat slipped back suddenly as the pilot was trying to land. A plaintiff’s attorney was quoted in the Wall Street Journal last week as saying that Cessna ‘knew the seats could slip, but they never told the pilots that.'” On the contrary, says the Cessna pilots association: the company issued a service advisory in 1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered all owners a free secondary seat-stop kit “that would provide positive retention of the seat in the event that the primary system failed. Owners had to pay for about three hours’ labor at a Cessna Service Center to install the free kit.” In 1987, the FAA issued its own Airworthiness Directive “with detailed instructions for inspecting the seat-latching system for wear, pin engagement and cracks”. (AvWeb, undated). More of what general aviation folks have to say about that jury award (much of it highly uncomplimentary): AvWeb reader mail; Pprune threads #1, #2.
August 24-26 — Can I supersize that class action for you? The FBI has charged eight persons in the conspiracy, allegedly dating back to 1995, to steal the winning pieces in McDonald’s promotional Monopoly game. Although the fast-food chain was among the victims of the scheme and has already promised a make-it-up sweepstakes promo, can we doubt that the class action lawyers will soon descend? “And never mind those gloomy folk who say the lawyers will win millions while the rest of us each gets a coupon for a packet of fries.” (“They Knew It” (editorial), Washington Post, Aug. 23); Yahoo Full Coverage).
August 24-26 — The document-shredding facility at Pooh Corner. “A family-owned company that receives royalties from the sale of Pooh merchandise says that Walt Disney Co. has cheated it out of $US 35 million … by failing to report at least $US 3 billion in Pooh-related revenue since 1983. … the case has been entangled in Los Angeles Superior Court for a decade …. Last year a Superior Court judge sanctioned Disney for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems'”. (“Claimants call Pooh a bear of very little gain”, L.A. Times/Sydney Morning Herald, Aug. 17). Update Mar. 30, 2004: court dismisses suit after finding misconduct on plaintiffs’ side. (DURABLE LINK)
August 24-26 — More traffic records at Overlawyered.com. What summer slowdown? Last week set a new record for pages served, and so did last month … thanks for your support!
August 22-23 — Meet the “wrongful-birth” bar. “BIRTH DEFECTS — When did your doctor know? … You may be entitled to monetary damages,” according to an advertisement by the law firm of Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J. The theory behind “wrongful-life” and “wrongful-birth” suits? “If the health team had done its job, the [parents] would have known of the defect — and could have chosen not to have the baby. … Lawyers file the cases if — and only if — the parents are prepared to testify that they would have aborted the pregnancy.” Many disabled persons, joined by others, are not exactly happy about the premise that it might be better for some of the physically imperfect among us never to have been born. Attorneys believe such cases “will become more common as prenatal sonograms, blood tests, and genetic counseling become routine, and the public learns of the potential for large financial awards when genetically defective babies are born.” “Any child born with a birth defect has a potential wrongful birth or wrongful life claim,” says one optimistic lawyer. (Lindy Washburn, “Families of disabled kids seek peace of mind in court”, Bergen Record, Aug. 19; “N.J. has taken lead in allowing parents, children to sue”, Aug. 19). Note the bizarre headline on the first of the two stories: just how likely is it that “peace of mind” will be found by having the parents swear out a permanent public record to the effect that they wish their child had never been born? (more on wrongful birth/life: Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000). (DURABLE LINK)
August 22-23 — Pricing out the human species. According to Idaho governor Dirk Kempthorne, the federal government’s proposal to reintroduce grizzly bears into Idaho “assumed injury or death to people and even calculated the value of human life. A human killed by a grizzly bear in Idaho would cost the federal Treasury between $4 million and $10 million, and the plan even amortized the annual costs at $80,000-$200,000. As far as we know, this is the first time that death or injury to humans has been factored into a program proposed by the federal government under the [Endangered Species Act].” (“Risk to humans too great”, USA Today, Aug. 17). And did reluctance to draw water from a river containing threatened fish contribute to the deaths of four firefighters during a big wildfire in Okanogan County, Wash. last month? (Chris Solomon, “Why Thirty Mile Fire raged without water”, Seattle Times, Aug. 1; “Endangered Fish Policy May Have Cost Firefighters’ Lives”, FoxNews.com, Aug. 2).
MORE: “NWFP [Northwest Forest Plan] standards and guidelines and other agency policies such as PACFISH set streamside buffers with virtually zero risk to fish species, regardless of the effects of large buffers to other management objectives. Managing risks requires value-based decisions. We understand that the zero-risk [to fish — ed.] approach is largely a result of lawsuits….” (James E. Brown of the Oregon Department of Forestry at a House Agriculture Committee oversight hearing, June 21, 1999 — scroll to near end of document). (DURABLE LINK)
August 22-23 — Slavery reparations suits: on your mark, get set… “By year-end, an all-star team of lawyers calling themselves the ‘Reparations Coordinating Committee’ plans to file a suit seeking reparations for slavery. … Multiple cases in multiple forums are likely. The defendants will come from both the public and private sectors”; among businesses likely to be named as defendants is J.P. Morgan Chase. (Paul Braverman, “Slavery Strategy: Inside The Reparations Suit”, American Lawyer, July 6). Harvard Law prof Charles Ogletree said “‘an amazing series of possible actions’ is slated for early next year.” (Emily Newburger, “Breaking the Chain”, Harvard Law Bulletin, Summer). Some of the reasons it’ll be a terrible idea: John McWhorter, “Against reparations”, The New Republic, July 23 (more on reparations: July 6-8, April 17, Dec. 22-25, 2000 and links from there). (DURABLE LINK)
August 22-23 — “New York State’s Gun Suit Must Be Dismissed”. No, bad lawsuits don’t always prosper: “The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed,” Justice Louis B. York has ruled in Manhattan. New York was the only state to have joined 32 municipalities in suits against the gun industry that aim to extract money from gunmakers as well as arm-twist them into adopting various gun controls that legislatures have declined to enact. New York AG Eliot Spitzer is said to be “dismayed” by the decision. Good! (Daniel Wise, New York Law Journal, Aug. 15).