Author Archive

New legislation round-up

The Christian Science Monitor writes: “As the new year begins, more than 500 new laws in 21 states – the byproducts of long and oft-tedious legislative sessions – will change Americans’ lives in ways both serious and obscure.” Sara B. Miller, “New state laws run social gamut,” Christian Science Monitor, Jan. 2. They include laws setting up anti-telemarketing do-not-call lists, rules against hogging the fast lane, and new revenue-generating fees. The Associated Press provides additional examples. See “Keep the left lane clear; watch who splits your tongue,” Jan. 3 (via cnn.com).

Of lawyers and GloFish™

Explaining that “tropical aquarium fish are not used for food purposes” and “pose no threat to the food supply,” the US Food and Drug Administration opted not to regulate GloFish™, ornamental fish that have been genetically modified to glow in the dark. (Don Thompson, “FDA won’t bar first biotech pet from the market,” Associated Press, Dec. 9 (via whittierdailynews.com); Shannon Colavecchio-Van Sickler, “Want aquarium flair? GloFish,” St. Petersburg Times Online, Dec. 27 (via www.poynter.org),”FDA statement regarding Glofish,” Dec. 9).

Unhappy with this decision, the Washington, D.C.-based Center for Food Safety promptly announced plans to file a lawsuit against the FDA to force it to exercise its alleged regulatory authority over household pets. “It’s a precedent and it’s one that we want to stop,” a Center spokesman explained, in a remarkable slippery slope argument to support the proposed lawsuit. “Having the Glo-Fish™ out on the market ushers in a new era where we are going to have untested, unregulated, genetically engineered animals as fads, as pets, as food supply. And I don’t think anyone should go down that road.” (“GLO-FISH,” KTVI Fox2 News).

Erin Brockovich watch

Erin Brockovich’s law firm has filed its third lawsuit against Beverly Hills, its school district and several oil and gas companies, claiming that emissions from an oil derrick on the Beverly Hills High School campus caused former students and others to develop high rates of cancer – or at least put them at greater risk of developing the disease. (“Brockovich Files Third Lawsuit in Cancer Case,” L.A. Times, Jan. 3; Associated Press, “Brockovich Firm Against Sues Beverly Hills,” lasvegassun.com, Jan. 3 ). City officials have disputed the claims.

The latest lawsuit filed in California state court lists nearly 300 plaintiffs, “a number” of which claim that they “do not have cancer but are at greater risk of developing the disease.” Earlier posts on the media-savvy paralegal’s environmental lawsuits can be found on Nov. 19, July 15, and elsewhere in this space.

U.S. taxpayers won’t pay Lewinsky’s legal fees

Former White House intern Monica Lewinsky cannot recover the $1.1 million she spent on legal fees for the independent counsel investigation of President Clinton, a federal appeals panel ruled today. (Carol D. Leonnig and William Branigin, “Lewinsky Denied Reimbursement of Legal Fees,” Washington Post, Dec. 30; “Court rejects Lewinsky legal fees request,” Reuters, Dec. 30).

For the federal government to reimburse her under the applicable independent counsel statute, Lewinsky had to show that she would not have had to hire a lawyer, save for the independent counsel’s investigation. The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Lewinsky’s argument that “there would have been no investigation of her … conduct had it not involved the President,” noting that the independent counsel’s office argued that Lewinsky was accused of lying about her affair and perjuring herself. The panel also noted arguments by the independent counsel’s office that Lewinsky initially refused an immunity deal and incurred more than $800,000 in legal fees before negotiating a deal she found acceptable. The panel’s per curiam opinion, in In re Madison Guaranty Savings & Loan, No. 94-00011, is available here.

Sometimes the system works

Despite much hue and cry about the September 11 Victim Compensation Fund (see Dec. 29, 2003, almost immediately below, and Apr. 2-3, 2003, Sept. 9-10, 2002, Oct. 26-28, 2001), more than 95 percent of eligible families ultimately opted to file claims with the fund rather than going to court. (Jennifer Barrett, “A Dramatic Success,” Newsweek, Dec. 23 (via msnbc.com)).

More than 6,450 claims were received by the December 22nd midnight deadline, with about 70 of the remaining 150 eligible families having decided to pursue a lawsuit instead of filing with the fund. Other families have chosen to forego both a lawsuit and the administrative fund, saying others need the money more than they do. “None of us were dependent on” our sister, one such family member explained, “and none of us wanted to gain from her death.” (Stephanie Saul, “Foregoing the WTC Victims’ Fund,” NYNewsday, Dec. 23).

Thank you

Tonight’s posting winds up my stint as guest blogger. Thanks again to Walter Olson for having me here. Anyone who hasn’t should pick up a copy of his latest book, “The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law.” And, while you’re at it, read the amazon.com reviews — even a Madison County, Illinois class-action plaintiffs’ lawyer who says his firm is “routinely slagged” on this website admits the book is a “good read.”

Litigation finance runs afoul of champerty doctrine

Opining that “a lawsuit is not an investment vehicle,” the Ohio Supreme Court has ruled that a personal injury plaintiff who settled her case for $100,000 “need not honor a contract that required her to pay nearly $20,000” to a Nevada-based litigation finance company and an Ohio broker. What’s more, plaintiff Roberta Rancman is not required to return the $8,800 advanced to her by the two companies. A National Law Journal article takes a look at the litigation finance industry, in which “financiers typically offer cash advances to plaintiffs who might be out of work because of an injury or otherwise unable to meet their daily living expenses. The financiers get back their advance, not to mention a usually quite substantial premium, only if the suit leads to a settlement or an award.” (See Gary Young, “Two setbacks for lawsuit financing,” The Nat’l Law Journal, July 28). Update Oct. 25: litigation-finance firms pull out of Ohio after ruling.

More on jackpot justice

Michigan: A federal jury awarded $270.05 in general damages and $875,000 in punitive damages to a 74-year-old woman who claimed she was “questioned, photographed, held against her will and finally tossed out” of a casino after she found an abandoned nickel credit in a deserted slot machine. Plaintiff Estella Romanski prevailed on her claims for violation of her civil rights, false arrest and false imprisonment, while Detroit’s MotorCity Casino defeated her claims for defamation and intentional infliction of emotional distress.

MotorCity spokesman Jack Barthwell told a reporter that the practice of so-called “slot walking” is discouraged to ensure “that proper taxes are paid, and to preserve order in the casino. … Because it’s not your money, you’re taking something that doesn’t belong to you. We believe it’s owned by the person who bet it or by the casino.” But Romanski’s lawyer “said the jury was instructed that under Michigan law the finder of lost or abandoned property has superior title to it than the owner of the locality where the property is found.” Barthwell said the casino plans to appeal, but may first ask the court to reduce damages. (Leonard Post, “Casino Visitor Parlays Nickel Into Legal Jackpot,” The Nat’l Law Journal, Aug. 4) (via law.com) (see also earlier Overlawyered.com report, Jul. 25). [Update Feb. 28, 2007: Supreme Court denies casino’s certiorari petition.]

Perhaps we can help choose

“The federal courts are running out of money to pay jurors…. With a growing caseload and longer trials draining the judiciary’s budget, the agency that runs the courts urged judges early this week to defer ‘noncritical civil trials’ until October, when its new fiscal year begins.” The suggestion was not welcomed in some quarters. “I don’t think there is such a thing as a noncritical jury trial,” said Judge John L. Kane of the Federal District Court in Denver. “If someone has a right to a civil trial, the Seventh Amendment guarantees them a right to a jury.” The Judicial Conference of the United States “later backtracked,” cancelling its request to defer trials in hopes that Congress would allocate additional money or OK the payment of jury fees from a $10 million emergency fund. (Adam Liptak, “Federal Judges Find Courts Short of Money to Pay Jurors,” N.Y. Times, Aug. 1).

Time is money

Already squeezed by litigation-driven hikes in medical liability insurance premiums, Nevada doctors may be facing a new type of lawsuit. Fed up with having to wait three hours to see his doctor, patient Aristotelis Belavilas filed suit for $5,000, explaining “My time is worth something just like his is.” A Las Vegas small claims court awarded Belavilas $365 in damages and court fees. Dr. Ty Weller, understandably “appalled” by the case, said he plans to appeal. “Even more important than the money is that now I have to worry about other patients doing this to me,” he said. (“Impatient patient sues doctor for waiting time,” Assoc. Press, July 30).

Addendum: RangelMD has more (Jul. 30, Jul. 31) as does MedRants and Cut to Cure. Update: case settled in Sept. 2003 for doctor’s apology and payment to charity, see Sept. 16, 2005.