A New York man has sued Novartis, maker of the health drink Boost Plus, saying he woke up the morning after drinking the concoction with a case of priapism — involuntary male sexual arousal — that landed him in the hospital. “The company would not comment, but its website “describes the drink as ‘a great tasting, high calorie, nutritionally complete oral supplement for people who require extra energy and protein in a limited volume,’ in vanilla, chocolate and strawberry.” Reader Michael McK. suggests that word of the lawsuit may serve to increase the drink’s sales. (“Man Sues Over Long-Lasting Erection”, AP/Breitbart, Jun. 5).
Author Archive
Use our product or we’ll sue
Two manufacturers of digital rights management (DRM) systems, Media Rights Technologies (MRT) and BlueBeat.com, “have issued cease and desist letters against Apple, Microsoft Real and Adobe for not including their technological protection measures in products like Windows, iPod and Flash Player.” (TechnoLlama, May 12; Louisville Music News, May 16, whose headline we have borrowed). Explains Podcasting News (May 12):
The companies are using an unusual interpretation of the Digital Millenium Copyright Act (DMCA) to make their case. The DMCA, signed into law by President Clinton in 1998, makes prohibits the manufacture of any product or technology that is designed for the purpose of circumventing a technological measure which effectively controls access to a copyrighted work or which protects the rights of copyright owners. According to the firms, mere avoidance of an effective copyright protection solution is a violation of the DMCA.
Freedom to Tinker (May 15) says that if you believe the companies’ legal claim is sound, “I have a bridge to sell you — and let me assure you that you’re legally compelled to buy it.”
Update: Australian’s failed suicide try
A 19-year-old Australian who fell from a tree and was left quadriplegic after a failed suicide attempt has failed in his effort to lay legal blame on a mental hospital that had discharged him eleven days earlier. Timothy Walker “sued the Sydney West Health Service for negligence, claiming not enough was done to care for him prior to the accident. He claimed the hospital should have prescribed him anti-depressant or anti-psychotic medication, counselled him and detained him as an involuntary patient for at least two weeks for assessment.” However, a judge found that the health service had not rendered substandard care, that it properly declined to prescribe antidepressants because Walker would not promise to stay off liquor, and that it had followed up with home visits after Walker’s discharge, during which he reported feeling better. Walker will, at least notionally, be liable for the hospital’s legal expenses under the rule that costs follow the event (sometimes known as the “everywhere-but-America rule”). (Alyssa Braithwaite, “Would-be suicider fails in hospital sue bid”, AAP/Daily Telegraph, May 25). Earlier: May 9.
June 5 roundup
- Everyone’s got an opinion on Dr. Flea’s trial-blogging fiasco [Beldar, Childs, Adler @ Volokh (lively comments including Ted), Turkewitz (who also provides huge link roundups here and here), KevinMD]
- Sidebar: some other doctor-bloggers have shut down or curtailed posting lately amid pressures from disapproving employers and patient-privacy legal worries [KevinMD first, second posts; Distractible Mind, Blogaholic]
- Amusement park unwisely allows “extremely large” woman to occupy two seats on the roller coaster, and everyone lands with a thump in court [Morris County, N.J. Daily Record via Childs]
- Prosecutors all over are trying to live down the “Duke effect” [NLJ]; how to prevent the next such debacle [Cernovich]
- Bad for their image: trial lawyers’ AAJ (formerly ATLA) files ethics complaint against Judge Roy Pearson Jr., of $65 million lost-pants-suit infamy [Legal Times]
- More suits assert rights to “virtual property” in Second Life, World of Warcraft online simulations [Parloff]
- Plea deals and immunity in the Conrad Black affair [Steyn, OC Register]
- Another round in case of local blog sent nastygram for allegedly defaming the city of Pomona, Calif. [Foothill Cities; earlier]
- “There once was a guy named Lerach…” — Milberg prosecution has reached the limerick stage [WSJ Law Blog comments]
- Government of India plans to fight Americans’ claims of intellectual property over yoga postures [Times Online; earlier here and here]
- After car-deer collision, lawyer goes after local residents who allegedly made accident more likely by feeding the creatures [seven years ago on Overlawyered]
Don’t
More things that it’s really inadvisable to do if you’re a lawyer:
- Tell a judge to her face in open court that you consider her “a few French fries short of a Happy Meal” (William Smith of McDermott Will & Emery LLP, facing possible exclusion from the right to practice in the bankruptcy court in question; Crain’s Chicago Business);
- Show up in a hospital room to recruit as client a heavily medicated crash victim, then discourage him from going after the other driver’s personal assets in the case, without mentioning that the other driver is your own wife’s grandfather (Jeffrey Hark of Cherry Hill, N.J., referred for a state-bar ethical investigation although a legal-malpractice claim against him failed for lack of a showing of damages; NJLJ);
- As part of a $59 million settlement of Benlate fungicide-damage cases, accept a secret $6 million side payment from defendant duPont in exchange for (among other services) agreeing to file no more cases (Roland R. St. Louis Jr. and Francisco R. Rodriguez of Miami, disbarred and given a two-year suspension respectively; NLJ, Elefant).
U.K.: Recliner training?
Resting the wrong way in the U.K. Midlands:
…the men and women of the Greater Manchester fire service have been told they can only rest in prescribed reclining chairs – and only after they have been trained to use them.
Now, however, three experienced firemen are facing disciplinary action over “involvement in the use of unauthorised rest facilities”. …
Many fire stations have already been transformed by health and safety rules with the disappearance of the traditional fireman’s pole, deemed too dangerous to use.
(James Tozer, “Firemen feel the heat from health and safety for sleeping on the floor”, Daily Mail, Jun. 1).
“No warning…. just a lawsuit”
“Last month, we were hit with two new patent troll cases. With each, there was no warning, no offer to license – just a lawsuit.” Sun Microsystems general counsel Mike Dillon doesn’t hold back (May 14).
“Should they disbar TuberculEsq?”
David Giacalone has some thoughts on now-notorious Atlanta personal injury lawyer Andrew J. Speaker, who doesn’t seem to have lived up very well to the Lakoff-prescribed billing of “public protection attorney” (Jun. 1). But see: Elizabeth Whelan, in the New York Post, thinks the pillorying of Speaker’s decision to fly home has been overdone (“Free Andrew! Hysteria and the TB Case”, Jun. 2). Updates: Jul. 8 (some passengers sue Speaker), Dec. 2 (no one flying with him caught TB).
James Frey settlement, cont’d
CAFA: One plaintiff’s-side view
Victor M. Diaz, Jr., who has served as vice-chair of ATLA’s aviation section among other honors in representing the plaintiff’s bar, writes in Florida’s Daily Business Review taking issue with some of his colleagues’ doomsaying about the Class Action Fairness Act, which he says has proved “no calamity after all“:
More than two years after President Bush signed CAFA into law, these concerns are proving to be greatly exaggerated. CAFA should not be feared by the plaintiffs bar.
While the days of cases filed in remote, plaintiff-friendly state court venues may be over, CAFA has led to better representation of classes by plaintiffs attorneys and better outcomes for class members. On the whole, the potential shift of nearly all class actions to federal court has elevated the class action bar and meant better quality judicial review of corporate class-wide abuses.
As with Congress’s earlier reform of shareholder suits, the major effect seems to be not to choke off litigation, but to improve its average quality (cross-posted from Point of Law).