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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). 

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