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ARCHIVE -- JULY 2000 (I)

July 10 -- Tobacco: why stop at net worth?    Trial judge Robert Kaye, presiding over the Engle tobacco class action in Miami (see July 8, 1999, Sept. 28, June 2, our WSJ take July 1999), has declared that in calculating a basis for punitive damages there's no reason jurors should feel obliged to stop at a sum representing the tobacco companies' net worth.  "There's much more to this case than net worth or stockholder equity," he said.  Earlier, Judge Kaye ruled that it was proper to place before the jury the companies' capacity to borrow funds to help meet a punitive damage award, and also agreed to let the jury consider companies' operations worldwide in assessing those damages, though foreign countries might wonder why the hypothesized victimization of smokers worldwide should result in a punitive payoff exclusively to (certain) Floridians, and though overseas court systems are generally far more averse than ours to the award of punitive damages.   Moreover, Judge Kaye "barred the defendants from arguing to the jury that they have already been punished enough by their earlier settlements with states valued at $246 billion" even though those settlements took place in the shadow of demands for punitive damages.  (Imagine copping to a plea bargain in one court over your past doings, and then finding you get no double jeopardy protection when hauled up for punishment by a second court -- after all, your plea bargain was "consensual", so how can it count as punishment?  But American courts are in fact permitted to assess punitive damages against civil defendants an unlimited number of times to chastise them for a single course of conduct, so it's not as if any due process is owed or anything.)

Plaintiffs offered an expert witness, Prof. George Mundstock of Univ. of Miami School of Law, who testified that the nation's five biggest cigarette makers "are worth $157 billion domestically and have a 'strikingly rosy' future", per AP, which appears to make hash of suggestions that lawyers' efforts previous to this point have made a vital difference in putting us on the road to a "smoke-free society".  Mundstock's methodology reportedly reduced to a present value stream the surplus of all future tobacco company income over expenses.  Even the Wall Street Journal's Milo Geyelin, not a reporter suspected of pro-business leanings, writes that Kaye's handling of the legal issues in the suit has been "unorthodox".  At the New York Times, meanwhile, reporter Rick Bragg last month interviewed several of the dozen or more smoking-ravaged spectators who throughout the trial have taken highly visible seats in the courtroom day after day where the jury can hear and see their labored breathing, oxygen tanks, and mechanical voice boxes.  While extracting considerable human-interest content from these interviewees, Bragg's story does not display the least curiosity as to whether the idea of attending just happened to occur to all of them spontaneously, or instead, as defendants have hinted, was the result of an orchestrated effort by plaintiff's attorneys Stanley and Susan Rosenblatt, which might have been ruled out of bounds as manipulative and prejudicial by a jurist less agreeable to the plaintiffs' cause than Judge Kaye. 

SOURCES: Milo Geyelin, "Judge Won't Allow Tobacco Industry To Cite Settlements", Wall Street Journal, May 18; "Jury can hear about tobacco industry's borrowing power, judge rules", FindLaw, May 31, no longer online; "Economist estimates tobacco industry worth $157 billion", AP/FindLaw, June 6, no longer online; Gordon Fairclough, "Judge in Smoking-Illness Suit Tells Jury Not to View Settlements as Punishment", Wall Street Journal, June 14; "Judge KO's Tobacco Try on Damages", AP/FindLaw, July 6; Milo Geyelin, "Judge Reverses, Lets Jury Weigh Foreign Tobacco Sales", Wall Street Journal, June 7; Rick Bragg, "Where Smoking Damages Are Argued, Plaintiffs Fight for Air", New York Times, June 3.

July 10 -- "Why You Can't Trust Letters of Recommendation".   Fear of lawsuits isn't the only factor inhibiting candid letter-writing in higher education, but it's an important one, especially since a recent decision by the Virginia Supreme Court stripped professors of immunity for allegedly defamatory reference-giving in the tenure process.  Open-records laws add to the difficulties, as in the University of California system, where job candidates enjoy a big head start in figuring out who's saying what about them (Alison Schneider, "Why You Can't Trust Letters of Recommendation", Chronicle of Higher Education, June 30) (via Arts & Letters Daily).

July 10 -- Wonder Bread hierarchy too white, suit charges.   What more symbolically fraught company to get sued on race discrimination charges than Wonder Bread?  Bay Area politician/attorney Angela Alioto, representing 21 black workers at Interstate Brands' San Francisco bakery, thinks $260 million an appropriate amount to ask for failure to promote and other sins; the trial began May 24.  A feud has also developed between Alioto and co-counsel Waukeen McCoy, with Alioto accusing McCoy of swiping three of her clients.  (Dennis J. Opatrny, "Wonder Bread Race Discrimination Trial Opens in S.F.", The Recorder/CalLaw, May 30; Alioto website).  Update: jury awarded $11 million in compensatory and $121 million in punitive damages (see Aug. 4).

July 7-9 -- Veeps ATLA could love.  For the organized plaintiff's bar, more reason to smile: recent speculation about a running mate pick for Al Gore has centered on such names as Senator Dick Durbin (D-Ill.) and Defense Secretary Bill Cohen, a Republican Senator from Maine before joining the Clinton Administration.  Trial lawyers have had few better friends in the U.S. Congress than Durbin, who's taken a prominent role in advancing their interests in virtually every hot area of recent years: tobacco (where, notwithstanding language on his website about how he's worked to prevent "unnecessary windfalls for special interests", he led the successful fight against limiting multi-billion-dollar lawyers' fees), gun and HMO liability (in both cases sponsoring legislation that would make it easier to sue) and product liability (where he helped lead opposition to various GOP-sponsored bills, such as one to ease liability pressure on biomaterials used in implants and other advanced medicine).  (PBS "NewsHour with Jim Lehrer" transcript, May 19, 1998 (tobacco -- scroll to near end); Bob Barr (R-Ga.) press release on Durbin gun bill, March 4, 1999; Durbin press release on HMO liability, April 29, 1998; Jeffrey J. Kimbell, "Biomaterials Access Bill Continues To Move Through Congress", American Society for Artificial Internal Organs, undated 1998) (also see May 8).  Cohen, though unlike Durbin not closely identified with the trial lawyer agenda, has the unusual distinction of having worked early in his career for both the Association of Trial Lawyers of America (as an assistant editor-in-chief) and the Maine Trial Lawyers Association (as vice president); not surprisingly, he acquired a reputation on the Hill as one who often strayed from the Republican fold on litigation issues.  (Biographical note, University of Maine/Orono; Ramesh Ponnuru, "The Case for Bill Cohen", National Review Online "Washington Bulletin", July 3). (DURABLE LINK)

July 7-9 -- Inmate: You didn't supervise me.  A former inmate at the Spartanburg County, S.C. jail has filed a lawsuit saying officials negligently failed to supervise him while he engaged in horseplay alone in his cell.  Torrence Johnson, of Rock Hill, who was in jail after his arrest on charges of driving with a suspended license and another traffic infraction, says he fell and broke a vertebra with resulting paralysis.  "If jail personnel had done a better job of supervising him, Johnson claims, he never would have been able to engage in the 'horseplay' that paralyzed him."  "He stood up on a desk in his cell and was cutting back flips off of it," said jail director Larry Powers. "With the small number of detention officers we have, there's no way that we can constantly monitor every inmate continuously around the clock."  (Tom Langhorne, "Paralyzed man blames jail for injury", Spartanburg (S.C.) Herald-Journal, July 6).

July 7-9 -- The Wal-Mart docket.  The world's largest retailer gets sued with such regularity that an enterprising Nashville lawyer has erected a site entitled the Wal-Mart Litigation Project devoted to the subject.  You can browse 99 Verdicts Against Wal-Mart, search for attorneys who volunteer a willingness to sue the company, or consult a price list of packets you can buy on dozens of specialized topics such as "Pallets or Dollies Left in Aisle Ways (12 items, $100)" "Shopping Carts - Overloaded (4 items, $45)", and "Restrooms - Water on Floor (3 items, $40)".  Some of the bigger-ticket lawsuits against the chain assert liability over the sale of guns later used to commit crimes, over abductions and other crime occurring in parking lots, and over tobacco sales: a suit in Arkansas last year labeled the retailer a "co-conspirator" with cigarette companies.  Update: for another suit, see July 21-23.

SEE ALSO: "Ala.Wal-Mart to pay up to $16 million over shotgun used to kill woman", AP/Court TV, Feb. 23; Trisha Renaud, "Tangled Mind, Tangled Case", Fulton County Daily Report (Atlanta), March 24; Bob Van Voris, "Wal-Mart Discovery Tactics Hit", National Law Journal, March 29; Bob Van Voris, "More Sanctions for Wal-Mart", National Law Journal, April 14; Seth Blomeley, "Pair sues Wal-Mart, tobacco firm, calls them 'co-conspirators'", Arkansas Democrat-Gazette, Dec. 16, 1999 (no longer online); Bob Van Voris, "Wal-Mart's Bad Day", National Law Journal, June 5.

July 7-9 -- Welcome Australian Bar Association members.  Our editor was a featured speaker at the Association's conference in New York this week, which has helped boost this site's already considerable traffic from Down Under.  For more on Dame Edna's fateful gladiolus toss, mentioned in our remarks, see our May 26 commentary.

July 6 -- Foreign policy by other means.  The Constitution entrusts to the President and his appointees the task of managing this nation's relations with foreign powers, but now some in Congress are keen on giving private litigators ever more authority to initiate courtroom fights against those foreign powers, whether or not the State Department considers that such hostilities fit well into a coordinated national policy.  A bill that would entitle U.S. victims of Iranian-backed terrorism to collect compensation payments from blocked Iranian bank accounts is moving swiftly on Capitol Hill, despite a plea from the Clinton Administration's Stuart Eizenstat that significant foreign policy interests of the government will be impaired if blocking of foreign assets becomes simply a preliminary to attachment of those assets on behalf of particular injured litigants.  (Jonathan Groner, "Payback Time for Terror Victims", Legal Times (Washington), June 7).   The touchy issue of U.S. relations with member nations of OPEC has in the past and might someday again engage this nation in armed conflict abroad, but Rep. Benjamin Gilman, R-N.Y., chairman of the House International Relations Committee, has just introduced a Foreign Trust Busting Act that could empower litigants to seize OPEC assets in this country, removing a legal obstacle known as the "Act of State" doctrine, under which U.S. courts generally avoid ascribing liability to the official acts of foreign governments.  Presumably oil sheiks would proceed to submit to depositions in American courtrooms and negotiate over the size of the fees payable to entrepreneurial class action lawyers.  (Ted Barrett, "Bill will allow antitrust suits against OPEC", CNN, June 24).  And lawyers for Argentine veterans and relatives are in Strasbourg, France, preparing to file a war crimes case against Great Britain over the 1982 sinking of the cruiser General Belgrano, which killed 323 seamen; Britain and Argentina were at war at the time over Argentina's invasion of the Falkland Islands.  ("Argentine war victims sniff justice in Belgrano case", Reuters/CNN, July 3) (see Feb. 14 commentary and links there, and July 14).

July 6 -- Trial-lawyer candidates.   New York Press columnist Chris Caldwell, reflecting on the New Jersey Senate primary victory of Goldman Sachs executive Jon Corzine, predicts that more millionaire candidates will enter Democratic politics by staking their own campaigns, but says "[i]t’s unlikely most of them will be finance executives. More probably, they’ll resemble North Carolina Sen. John Edwards, who made his 25 million as a trial lawyer. Trial lawyers are the Democratic Party’s biggest contributors, and the party repays the favor by helping create a favorable litigating climate, and even breeding such golden-egg-laying geese as the various state tobacco agreements. But they’re increasingly coming to the conclusion that there’s no reason to bribe the party when you can run it yourself.

"Typical of the new lawyer/candidate class is Minnesota’s Michael Ciresi, who’s seeking the Democrat/ Farm[er]/ Labor nomination for Senate. Ciresi’s law firm got $400 million of Minnesota’s tobacco money. Why?  Because then-state Attorney General Skip Humphrey (Hubert’s son) said it should.  We seem to be arriving at a situation in which it is the government itself that puts up candidates."  ("Hill of Beans: Iron Jon (second item), New York Press, June 13).

July 6 -- Update: Canadian skydiver recovers damages from teammate.   A judge has awarded C$1.1 million ($748,000) to Gerry Dyck, a veteran skydiver who sued teammate Robert Laidlaw for allegedly failing to exercise proper care toward him during a dive.  The case, along with other recent suits, had been criticized by some in the skydiving community as bad for the sport (see May 26) ("Canadian skydiver wins lawsuit against teammate", Reuters/FindLaw, June 26).

July 5 -- Feds' own cookie-pushing.   Even as the White House and Senators wring their hands over the threat to privacy posed by visitor tracking by private websites, dozens of federal agencies use cookies to track visitors, including those dispensing information on such sensitive topics as drug policy and immigration.  (Declan McCullagh, "Feds' Hands Caught in Cookie Jar", Wired News, June 30; Eric E. Sterling, "Uncle Sam's 'cookie' is watching you", Christian Science Monitor, July 3).  So does the website of a New Jersey Congressman who's expressed high dudgeon about privacy issues in the past (Declan McCullagh, "How Congressional Cookies Crumble", Wired News, June 30; John T. Aquino, "Senate Online Profiling Hearing Suggests Movement Toward Federal Legislation", E-Commerce Law Weekly, June 16).  Meanwhile, state attorneys general, emboldened by taking tobacco and Microsoft scalps, are moving closer to filing cases against cookie-setting dot-coms: "It's like the thought police.  It's really an alarming specter in terms of privacy", claims Michigan AG Jennifer Granholm, of the ability of servers to detect particular repeat visitors to their sites (Gail Appleson, "States may launch privacy suits", Reuters/ZDNet, June 20).  The Federal Trade Commission has moved to regulate privacy policies at financial services sites, and is asking Congress for legislation that would extend its authority much further (Keith Perine and Aaron Pressman, "FTC Publishes Internet Privacy Rule", Industry Standard/Law.com, May 16; Keith Perine, "FTC Asks Congress for Online Privacy Laws", Industry Standard/Law.com, May 24). 

July 5 -- Prospect of injury no reason not to hire.   In May, the Ninth Circuit U.S. Court of Appeals ruled that employers can't deny a job to a disabled applicant even if the work poses a "direct threat" to that applicant's health or safety.   Chevron had turned away Mario Echazabal for a job at the "coker unit" of its El Segundo, Calif., oil refinery in 1995 after a pre-employment exam revealed that he had a liver disorder that the company's doctors feared would worsen in the unit's harsh environment ("coker units" explained: Industrial Fire World site). Prominent liberal jurist Stephen Reinhardt, writing for a unanimous three-judge panel, held that it should be up to a disabled worker whether to risk a toxic exposure -- never mind that the employer will predictably be presented with much or all of the bill if the exposure does wind up incapacitating the worker.  Jeffrey Tanenbaum, with the San Francisco office of the management-side law firm Littler Mendelson, said "either the decision is terribly wrong, or the ADA is written in a ludicrous manner," because "it makes no sense to make an employer violate a federal or state health and safety law," referring to Occupational Safety and Health Administration statutes that require employers to avoid exposing employees to injury.  (Michael Joe, "Employment Bar in Tizzy Over 9th Circuit Decision", The Recorder/CalLaw, June 16). 

July 5 -- "Exporting tort awards".   Study of more than 7,000 personal injury cases by Eric Helland (Claremont McKenna College) and Alexander Tabarrok (Independent Institute) finds civil awards against out-of-state defendants ran an average of $652,000 in states where judges reach office by partisan election, but only $385,000 where selection is nonpartisan.  For cases against in-state defendants, the gap was a narrower $276,000 vs. $208,000 -- suggesting that while one effect of partisan judicial elections may be to raise the level of awards, an even more important effect may be to worsen the bias against out-of state entities which are not represented in a state's political process but are subject to wealth redistribution by its courts ("Exporting Tort Awards", Regulation, vol. 23, no. 2 (autoredirects to pdf document); "The Effect of Electoral Institutions on Tort Awards" (links to pdf document), Independent Institute Working Paper #1).

July 5 -- We probably need a FAQ.   "Does your law firm handle driving under the influence cases?" -- thus a recent email to this site from a Mr. R.S.   We do seem to spend an inordinate amount of time explaining to correspondents that we aren't a law firm or legal referral service, and that we can't advise folks with their legal problems, no way, nohow -- both from lack of time and inclination and because we fear being dragged off to the Unauthorized Practice dungeons where they stow people who presume to dispense such advice without advance permission from the bar.

July 3-4 -- "Parody of animal rights site told to close".   Several years ago internet entrepreneur Michael Doughney registered the web address www.peta.org and used it to put up a site called People Eating Tasty Animals, parodying the militant animal rights group People for the Ethical Treatment of Animals.  Now a federal judge "has ordered him to relinquish the web address to PETA and limit his use of domain names to those not 'confusingly similar'".  Doughney's lawyer says he plans to appeal and says it's not a cybersquatting case because his client had no wish to sell the domain name but simply wanted to use it for parody.  Doughney has moved the site here; it includes a substantial list of links to sites which take the position that there's nothing unethical about animal husbandry as such, as PETA would have it.  ("Parody of animal rights site told to close", Ananova.com, June 21; "Domain Strategies for Geniuses", Rick E. Bruner's Executive Summary, May 12, 1998).  As for PETA, it's not a group to shy away from charges of hypocrisy: it itself registered the domain name ringlingbrothers.com and used it for a site decrying alleged mistreatment of circus animals.  A lawsuit by the real Ringling Brothers Circus ended with PETA's agreement to relinquish the name.  ("PETA’s Internet hypocrisy", Animal Rights News (Brian Carnell), May 18, 1998; DMOZ).

July 3-4 -- Multiple chemical sensitivity from school construction.   At Gloucester High School on Massachusetts's North Shore, some present and former staff members and students have sued the architects and contractors after a school construction project whose fumes, some of them say, sensitized them to the point where they now grow ill from a whiff of window cleaner, perfume, hairspray, or new upholstery, or even from contact with people who've laundered their clothes in regular detergent.  The reporter doesn't quote anyone who seems familiar with the skeptics' case against MCS, but to us this sounds like a case for Michael Fumento (see his "Sick of It All", Reason, June 1996). (Beth Daley, "Disrupted lives", Boston Globe, June 26)

July 3-4 -- A Harvard call for selective rain.   "So far, legislators, loath to tamper with the dot-com wealth machine powering the U.S. economy, have left Web companies alone. But Jonathan Zittrain, executive director of Harvard's Berkman Center for Internet and Society, believes that era is ending. Hot-button issues like personal privacy are putting Web companies under a microscope, he says. And continuing advancements in technology will soon make it easier for companies to patrol their sites much more aggressively.  'No one wants to rain on the Internet parade so much that you wash it out,' Mr. Zittrain says. 'But people are starting to realize you'll be able to very selectively rain on the parade'".  Aside from feeling some alarm at the content of these remarks by Mr. Zittrain, we hereby nominate them for the Unfortunate Metaphor Award: if rain is the sort of thing he thinks can be made to fall "very selectively", why do we keep hearing that it falls on the just and the unjust alike?  (Thomas E. Weber, "E-World: Recent Flaps Raise Questions About Role of Middlemen on Web", Wall Street Journal, June 5) (fee).

July 3-4 -- Overlawyered.com one year old.   We started last July 1 and have set new visitor records in nearly every month since then, including last month ... thanks for your support!

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