That didn’t take long: according to Prof. Childs in a post yesterday, at least one legal advertiser has bought Google AdSense words in quest of victim families. Those who click on the ad get redirected to personalinjuryattorney.com.
Author Archive
“Thompson’s Tort Trouble”
Discrimination against the mentally ill
David Bernstein is presiding over a thread at Volokh (Apr. 18).
More from the WSJ’s editors today:
A reasonable university administrator might conclude from all this [the suits against Harvard and MIT over the Sinedu Tadesse and Elizabeth Shin episodes, respectively] that mentally ill students–when there is even a remote possibility that they will be dangerous–need to be removed from campus, at least until their condition has improved. But not so fast. In 2004, George Washington University suspended Jordan Nott after he sought medical treatment for severe depression. Officials said later that they were trying to act in Mr. Nott’s best interests, by forcing him to take time off to get counseling. Mr. Nott sued the university, arguing that it had violated his rights under the Americans With Disabilities Act. The school and Mr. Nott settled out of court last fall.
In the same rights-based spirit, Virginia recently passed a law barring public colleges and universities from punishing or expelling students “solely for attempting to commit suicide, or seeking mental-health treatment for suicidal thoughts or behaviors.”
(“Caught in the (Legal) Crossfire”, Apr. 20).
And: “Privacy and anti-discrimination laws have meant paralysis in the face of the scarily insane.” (Kay Hymowitz (Manhattan Institute), “In loco parentis – not”, New York Sun, Apr. 20, original at City Journal). Speaking of privacy laws, Hymowitz writes:
Some years ago, when my daughter was starting out at Amherst, the college president explained the terms of the Buckley Amendment to the parents of incoming freshmen. One parent asked in disbelief, “You mean, if my kid were to disappear to California with a drugged-out nut, you wouldn’t even tell me she was missing?” The president smiled with just a hint of condescension. “That’s right,” he said.
Update: Maag drops defamation suit
Watch what you say about judges dept.: former Illinois judge Gordon Maag has dropped the $110 million defamation lawsuit he had filed against the U.S. Chamber of Commerce and other defendants over campaign flyers he claimed were false and unfair. An appeals court in November upheld a lower court’s dismissal of the suit, and the Illinois Supreme Court declined to revive it. (Ann Knef, “Gordon Maag drops $110 million defamation suit”, Madison County Record, Apr. 12). Earlier: Dec. 23, 2004; Feb. 6 and Nov. 6, 2006.
New Hampshire and Iowa
Peter Lattman at WSJ law blog (Apr. 10) discusses political maneuvering in the two early-Presidential-deciding states. It turns out that both states have (in the persons of Bill Shaheen and Jerry Crawford, respectively) Democratic kingmakers who happen to be trial lawyers. Not that this makes them so different from other states from coast to coast….
“Laws Limit Options When a Student is Mentally Ill”
WashingtonPost.com’s “Think Tank Town” feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.
This morning’s New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:
Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.
For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness….
Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.
On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.
Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression….
Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.
The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son’s suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, “After a Suicide, Privacy on Trial”, Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho’s behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, “School says its options were few despite his troubling behavior”, Boston Globe, Apr. 19; Ribstein.
And: How well did privacy laws/policies work? Why, just perfectly:
Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.
“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.
“I do not know why she would not have that information,” she said. “I just know that she did not have it.”
(Shaila Dewan and Marc Santora, “University Says It Wasn’t Involved in Gunman’s Treatment”, New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today’s Times, recounting her experience with a disturbing student: “It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt.” (“The Killer in the Lecture Hall”, Apr. 19). The tease-quote from the Times’s editors: “Do universities fear lawsuits more than violent students?”
April 19 roundup
- University of Maine official files emotional-distress suit against students who distributed truthful information about him, says Eugene Volokh [@ eponymous]
- You’d think kids at hospitals have enough woe already without snatching away the chocolate shakes and toy-prize meals that might brighten their day [Dr. Charles via KevinMD]
- Keep your eye on just-being-released documentary A Lawyer Walks Into a Bar, directed by Eric Chaikin who did the excellent Word Wars [more]
- Flying-imams lawsuit continues to generate plenty of controversy [Malkin, NY Sun, Saunders, Smerconish, Zumwalt @ NYT]
- Former ATLA president Roxanne Conlin has named her website SomePeopleJustNeedToBeSued.com; no one seems to have posted online the story of how Iowans gave her the nickname Taxanne;
- UCP has this useful guide to the state of current knowledge about cerebral palsy (via Fumento, who’s quite unsparing toward John Edwards on the topic)
- Trial lawyers launch indignant crusade against AOL (more examples) over this bit of innocuous fluff on wacky warning labels;
- Blue-ribbon excuses: woman blames shoplifting on irritable bowel syndrome [AP/NBC6.net]
- Lawyers in Alberta, Canada, challenge as unconstitutional province’s limitation on cash for soft-tissue injury in car crashes [CBC]
- Ruling expected later this spring in infringement complaint by meatpacker Hormel against “Spam Arrest” email product [Coleman, Seattle Trademark Lawyer, Jeff Kiger @ Rochester, Minn. Post-Bulletin, documents; see Jul. 9, 2003]
- After teenage admirer of bin Laden flies small plane into Tampa skyscraper, his family sues blaming his Accutane acne medication [five years ago on Overlawyered]
NJ comp fraud case: lawyers settle out, workers nailed
When the Melard bathroom-components factory closed in Passaic, New Jersey, 112 workers were laid off, and more than 80 filed workers’ comp claims alleging that they’d been injured on the job but just hadn’t gotten around to reporting it previously. Mass comp filings of this sort are by no means rare following plant closings, at least in some parts of the country. However, the employer, Bath Unlimited — a subsidiary of Masco that does business as Melard — sniffed fraud, and decided to fight back. It sued the workers and the law firm that represented them, Ginarte O’Dwyer and Winograd, alleging racketeering:
The company claimed in its 2004 federal lawsuit that the Ginarte law firm and attorney [Michael] Policastro encouraged workers angry at being fired to file claims, most of which were identical except for employees’ personal information. According to the suit, the law firm directed workers to provide false information to doctors, and “virtually all” of the employees examined by physicians for Bath had no disabilities or none attributable to the company, the complaint charged.
The 84 worker-defendants did not make an appearance to contest the charges, and last month a federal judge signed a default judgment against them which leaves them personally on the hook for at least $2.26 million. (Greg Saitz, “$2.26M fraud judgment against workers shakes labor landscape”, Newark Star-Ledger, Mar. 21; “Workers penalty to be reviewed”, Mar. 30; John Petrick, “Workers must pay ‘compensation’ after losing claims suit”, Bergen Record, Mar. 25; Workers Comp Insider, Mar. 21 and Mar. 30).
Not surprisingly, the ruling has sent shock waves through the workers’ compensation and labor bar. Some of these lawyers argue as if granting employers any right at all to pursue fraud sanctions will impermissibly chill legitimate claims; presumably they imagine that the right to sue should forever be left a one-way affair. Others not unreasonably take exception to the severity of federal racketeering law’s treble-damage remedy (although the default “progressive” position, or so it seems, is otherwise to defend that same treble-damage remedy). Finally, and most cogently, they have pointed to the intrinsic harshness of the default judgment as a procedural device, which in this case has laid heavy burdens on unsophisticated immigrant workers, some of whom might plausibly have advanced the merits of their individual comp claims even if the bulk of the other 80-plus cases should be shown to be bogus.
But what of the law firm of Ginarte O’Dwyer and Winograd, which was at the center of the fraud scheme, if a fraud scheme there was? Well, this is the piquant part: after denying the allegations in court papers and trying unsuccessfully to get the federal case dismissed, the law firm settled separately with Bath/Masco/Melard on undisclosed terms. That protected its own interests, but left its former clients … well, “twisting in the wind” may not be too strong a way of putting it. The large law firm of Lowenstein Sandler has now stepped forward, acting on what it says is a pro bono basis, to attempt to get the default judgment against the workers overturned. (Greg Saitz, “Defending factory workers”, Newark Star-Ledger, Apr. 11).
New low for Jack Thompson?
“In the wake of Monday’s horrific shootings at Virginia Tech, video game scourge Jack Thompson went on Fox News and argued that violent video games were probably to blame. … he went on TV to make the claims before anyone really knew anything about the shooter or his reason for doing what he did.” (Daniel Terdiman, Gaming Blog, Apr. 17; video clip; Brian Crecente, “Dissecting Jack’s Lies”, Kotaku, Apr. 17). More: Mike Musgrove, Post I.T., Washington Post.com; Geek.com; Palgn.com.au (Australian); Wired.com Game/Life blog (TV’s “Dr. Phil” takes same line).
Quote of the day
“She said she notified authorities about Cho, but said she was told that there would be too many legal hurdles to intervene.” — Lucinda Roy, a writing professor who’d noticed the disturbed personality of the Virginia Tech killer-to-be and tried to take an interest in his case, quoted in an ABC News report. (Ned Potter, David Schoetz, Richard Esposito, Pierre Thomas, and staff, “Killer’s Note: You Caused Me To Do This”, Apr. 17). More: Apr. 19.