“In the first legal action of its kind in Britain, Stacy Dow is claiming her local NHS trust should pay to help her raise the daughter she never expected to have.” (Michael Blackley, The Scotsman, Apr. 25).
Author Archive
Federalism and product liability
Doesn’t a proper respect for federalism require us to stand back and let individual states assert whatever powers they wish to assert on the matter of product liability? No, it doesn’t, because to do so is in many cases to deprive the other states of a chance to adopt their own favored policy. We’ve belabored this point for years (particularly in the gun context; see here and here, for example), but now Eugene Volokh sums up the whole matter (Apr. 25) with great clarity. He concludes with the following points:
Finally, I would caution against appeals to tradition here. It’s true that most tort law has traditionally been state law; but that’s partly because historically most tort liability has involved either entirely intrastate behavior or behavior that’s largely intrastate. In particular, I don’t think there has been a long tradition of tort law imposing liability on defendants’ purely out-of-state behavior in the first place, especially when defendants’ behavior was lawful in the state in which it took place.
Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what’s “traditional” here.
Trauma from seeing bottled fly: C$340,000
Neither Waddah (Martin) Mustapha, of Windsor, Ontario nor his wife Lynn consumed the dead fly they found in a bottle of Culligan bottled water, nor did they drink any of the water that had come in contact with it, since they discovered the fly before opening the bottle. They were so traumatized, however, that a court has just applied the calamine of cash to their psychic wounds to the extent of a third of a million dollars (Canadian). Mr. Mustapha, a hairstylist, said he had nightmares and lost sleep after the fly incident; he “also testified that he lost his sense of humour and became argumentative and edgy,” among other ill consequences. Let’s hope the couple never goes on a picnic. (Chris Thompson, “Man wins $340,000 in bottled fly lawsuit”, Windsor Star, Apr. 23). Update Feb. 17, 2007: appeals court reverses judgment and awards $30K in costs to defendant Culligan; May 23, 2008: Supreme Court upholds Culligan win.
New post category: “Eat, Drink and Be Merry”
It’s been a while since we’ve added any new topical categories, so we’ve just created one that’s been overdue: Eat Drink and Be Merry, covering lawsuits over bacon cheeseburgers and obesity, booze sales, foreign objects that turn up in the chili or bottled water, calorie-labeling goofs, and, of course, hot coffee spills. We might throw in a few related stories about claims of “addictive” entertainment, too. Several of these topics are obviously closely related to the themes of our ever-popular personal responsibility subpage, which will remain unchanged.
A word about our topical pages (which are a great way to use the site for research, or just browse what we’ve published on a topic you find of interest): our subpage on product liability is a catch-all for cases in that category that don’t fit into the more specific pages covering guns, tobacco, cars, aircraft, microchips, and so forth (and now food and drink). If you’re interested in product liability as a general subject, you should consider visiting these other pages too. And our subpage on environmental law ranges somewhat afield to take in topics that include zoning, landmark preservation, mold claims and (always a favorite) animal rights. The full list of topics can be found along the right column of Overlawyered’s front page, just below the list of archives arranged by month.
“Which merger deals draw lawsuits?”
…asks Forbes. Its answer: “The ones that are sure to generate big fees, of course.” University of Arizona law professor Elliott Weiss and New York University economist Lawrence White studied lawsuits filed in Delaware Chancery Court over mergers of Delaware companies between 1999 and 2001. Of 564 mergers, 104 attracted lawsuits, and there was a pattern: the deals sued over “were among the largest, often involved all-cash offers and in more than half the cases the acquiring company owned stock in the firm it was buying.” As it happens, “Delaware law subjects cash takeovers and buyouts by controlling shareholders to much tougher scrutiny than most stock-swap mergers” and in such deals acquirers frequently anticipate negotiations with independent directors, and thus enter a somewhat lower initial bid to leave scope for concessions. It is common, however, for the lawyers who sue to wait for the deal price to rise and then claim credit for having made that happen, thus entitling them to compensation: “according to the study, they sought and got fees averaging $1,800 an hour in the cases where the price rose.” The authors “conclude that in many cases lawyers are ‘exploiting their “license to litigate” primarily to enrich themselves.'” (Daniel Fisher, “Free Riders”, Feb. 14).
Cow-pie bingo scratched
Among the latest recreational activities to fall afoul of liability fears: the cow-pie bingo event at Westby, Wisconsin’s Syttende Mai Festival, an annual celebration of Norwegian folk heritage (pictures). Last year, it seems, a Holstein named Baby managed to escape the designated containment, and although nobody was hurt some kids were scared, causing the organizers to reconsider the whole venture. “In cow pie bingo, a large area is marked as a grid with up to 500 squares, and gamblers bet $2 a square (six for $10) on where Baby will deposit a fresh meadow muffin.” (George Hesselberg, “Hopping Holstein shuts down cow pie bingo”, Wisconsin State Journal, Apr. 24).
Update: S.F. client-bilker
A judge has sentenced once-prominent San Francisco attorney Nikolai Tehin to 14 years in jail for stealing $2 million in settlement money from clients he represented, including impoverished tenants and brain-damaged infants on whose behalf malpractice suits had been filed (see Jul. 16, 2003). (Jeff Chorney, “Lawyer Who Stole $2M From Clients Draws 14-Year Sentence”, The Recorder, Apr. 20).
Update: Judge approves Abercrombie deal
Easy to read, that’s us
Via Prof. Bainbridge (Apr. 22) comes word of an automatic checker that will rate the readability of a website, assigning it scores according to its “fog index”, its reading ease, and the educational level it demands of readers. When we run the current front page of Overlawyered.com through the checker it tells us, among other things, that our average sentence contains 8.24 words, of which 15.48% are of three syllables or more. (The first number seems low; maybe the checker is using a nonstandard definition of “sentence”.) At any rate, our “fog index” stands at 9.49 on a scale on which Time and Newsweek stand at 10 (that is, slightly harder to read than us) and most popular novels score between 8 and 10. On the alternative “Flesch reading ease” measure, on which “Authors are encouraged to aim for a score of approximately 60 to 70,” we come in at 65.29. Finally, on the “Flesch-Kincaid grade level” calculation, we score a 6.20, suggesting that a seventh grader might be capable of following along with the posts here, though we can’t recall hearing from any who do. As a check, we ran the March 2005 archives through and got a slightly more difficult rating: 10.74 fog (comparable to the WSJ), 60.25 reading ease, and a grade level of 7.58. Overall, we come off as easier to read than Prof. Bainbridge himself or the Volokh Conspiracy, but not so easy to read as Glenn Reynolds — no great surprise on either front.
Update: PETA vs. “Happy Cows” ads
Animal-rights extremist group PETA has failed in its effort to invoke California’s s. 17200 unfair-practices act to suppress a state advertising campaign characterizing California dairy products as coming from “happy cows”. Without comment, the state Supreme Court has denied review of an appeals court decision throwing out the lawsuit, which had held that official government activity (in this case that of the state’s farmer-funded milk advisory board) is not covered by the statute (see Nov. 30, 2004 and Jan. 16, 2005). (Bob Egelko, “State justices refuse PETA a hearing on the life of cows”, San Francisco Chronicle, Apr. 21).