Legal correspondent Adam Liptak quotes me in a Sunday Week in Review piece on the prospect that lawyers, restrained from asking for unlimited non-economic damages, will instead seek and obtain higher economic damages from juries. I should make clear for the record, by the way, that despite my quoted remark expressing one reason to be skeptical that such limits can be readily gotten around, I haven’t yet seen Columbia law prof Catherine Sharkey’s forthcoming paper, and intend to keep an open mind about it. (Adam Liptak, “Go Ahead. Test a Lawyer’s Ingenuity. Try to Limit Damages”, New York Times, Mar. 6).
Author Archive
Update: Mississippi “60 Minutes” suit
More than two years ago (see Dec. 16-17, 2002), following a CBS “60 Minutes” installment exposing “jackpot justice” in Jefferson County, Mississippi, two former jurors struck back with an intimidating lawsuit against the network and two local interviewees. Now Ted reports at Point of Law (Mar. 4) that the Fifth Circuit has affirmed the suit’s dismissal by a federal district court; that court “assumed jurisdiction after it found that state defendants had been fraudulently joined in an attempt to defeat federal jurisdiction”.
Cited in House report
The Lawsuit Abuse Reduction Act of 2004 didn’t pass (though it’s been reintroduced) but Rep. Sensenbrenner’s majority report for the House Judiciary Committee nearly gave us (well, okay, nearly gave Stuart Taylor, Jr.) the chance to make permanent legislative history (see footnote 81).
U.K.: No moor tourists, please
Don’t make plans to visit Vixen Tor on Dartmoor any time soon: “The owner, Mary Alford, was afraid of being sued by members of the public who injured themselves on the tor, which was named after Vixana, a witch who reputedly died there and was turned to stone.” (Richard Savill, “Owner asked to restore access to Vixen Tor”, Telegraph (U.K.), Mar. 5).
More: Via Decs & Excs, Mar. 6, comes word that British Prime Minister Tony Blair has now called for a “real debate over risk”:
Mr Blair said that the fears of public service workers over the potential for a US-style litigation culture had made a deep impact on him.
“I was quite shocked to be told by people who were running a nursery that they were worried about letting the kids out into the playground when it was wet, in case one of them slipped and fell and they ended up having a legal case,” he said.
“We have got to look at a way of getting people protection on that.”
(Andrew Woodcock, “Blair Questions ‘Needless Panic’ over Issues”, The Scotsman, Mar. 5). For more on the “compensation culture” debate, see our U.K. page.
A logical place for a bus stop
That is, except for the ADA implications, or so MNKurmudge hears (Dec. 17).
McCain-Feingold
Expect it to begin serving soon as the basis for regulation of bloggers’ political speech, predicts Brad Smith of the Federal Election Commission. (Declan McCullagh, “The coming crackdown on blogging” (interview with Bradley Smith), CNet/News.com, Mar. 3). Michelle Malkin has a roundup of reactions (Mar. 3). More: Prof. Bainbridge follows up (Mar. 6).
“‘No link’ between MMR and autism”
Another study finds no link between the measles-mumps-rubella (MMR) vaccine and rising incidence of autism. (BBC, Mar. 3). For more on the litigation-fueled efforts to establish such a link in Britain, see our earlier reports: Dec. 29, 2003 and Feb. 25, 2004. More: Helene Guldberg, “MMR, autism and politics” (interview with Dr. Michael Fitzpatrick), Spiked-Online (UK), Jun. 23, 2004.
“Disabled golfer files complaint”
Says Robert Trent Jones Golf Trail in Tuscaloosa won’t provide free golf carts. (Stephanie Taylor, Tuscaloosa News, Dec. 15). The National Golf Course Owners Association maintains a page on ADA issues and compliance. At Cybergolf, Jeffrey D. Brauer (“Must golf courses accommodate wheelchair golfers?”, undated) discusses the impact of wheelchair-access regulation on golf course design: “The golf industry at first feared that ADA might outlaw contoured greens and fairways, and possibly sand bunkers, to achieve disabled access. Future rules revisions may eventually eliminate features like ‘perched’ greens and steep banks, but for now, traditional golf course architecture is not compromised by the guidelines.” And federal prescriptions on the design of miniature golf courses can be found here.
Helping themselves to class action funds
Federal prosecutors say they’ve caught two men masterminding unrelated complex schemes to siphon off large sums from class action settlements by falsely posing as members of the class. Richard Lagerveld was charged with mail and wire fraud after settlement administrators in two class actions mailed $9.2 million to his stated address in San Diego, which was in fact a homeless shelter. Authorities said he had a long criminal record including aliases and stolen identities; in one of the class actions, he submitted forged brokerage records to document his claim that he’d owned $145 million worth of stock in Oxford Health Plans, the target of securities litigation. In a second case, he collected a check for $2.3 million after claiming to be an owner of a fictitious company that had purchased glass from companies settling a class action. In the other case, inmate Alan N. Scott, who resides in the Schuylkill federal correctional institution in Pennsylvania, is charged with orchestrating an $8 million assortment of false settlement claims of which about $200,000 had been received as of the time of his arrest. According to the U.S. Attorney’s office, Scott used co-conspirators to correspond with claims administrators in about 90 securities class actions, “and routinely sent directions and correspondence to his co-conspirators by falsely labeling the correspondence ‘legal mail.'” (Onell R. Soto, “Ploy paid man millions, authorities say”, San Diego Union-Tribune, Jan. 18; Department of Justice press release, Feb. 9; Robert E. Kessler, “Two are charged in separate scams”, Newsday, Feb. 10; Securities Litigation Watch, Jan. 18).
Flint’s mayor retreats
On Jan. 21 Mayor Don Williamson of Flint, Mich., issued an executive order directing the city not to do business with any enterprise or person who had sued the city during the previous five years. Last week he announced a retreat from that policy, his spokesman saying a record of having sued the city would henceforth be considered as one factor among others rather than as an automatic bar to doing business.
Williamson’s original order had been criticized on various grounds, and the local ACLU chapter had threatened — what else? — to sue the city over the policy. Now, it should be noted that a municipality’s blanket refusal to do business with lawsuit-filers very likely might run afoul of various laws: employment discrimination statutes, to take one notable example, typically include provisions banning employers from “retaliating” against persons who sue under them. Other state laws on topics such as procurement might also be plausibly implicated, and perhaps constitutional doctrines as well. On the other hand, news accounts portray the ACLU chapter as adventurously asserting some sort of universal if heretofore unenumerated right not to be retaliated against by any official body on the grounds of a record of litigiousness — so that an asphalt contractor, for example, with a record of getting into repeated wrangles with the city over the terms of past contracts might have a constitutional right not to have that held against it in future competition for business. Given Flint’s announced policy of continuing to consider proneness to litigation as one factor among others, it may be predicted that the controversy has not been finally put to rest. (Christofer Machniak, “Flint’s no-sue policy modified”, Flint Journal, Feb. 25; “Flint rescinds policy barring business with companies who have sued city”, AP/Detroit Free Press, Feb. 24).