Overlawyered: Chronicling The High Cost Of Our Legal System

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Pixar’s “The Incredibles”

The latest offering from the ruling geniuses of animation (Toy Story, Finding Nemo, etc.) is a little bit different, as we reported Feb. 24. Notes the New York Times:

The buzz out of early screenings is that “The Incredibles,” set to be released Nov. 5, carries a considerably more middle-American sensibility than the usual fare from Hollywood, where liberal shibboleths often become the stuff of mainstream movies.

The new movie’s hero, Bob Parr, a k a Mr. Incredible, after all, has been driven into middle-aged retirement and the Superhero Relocation Program by a flood of lawsuits brought by personal-injury lawyers representing people Mr. Incredible has saved but who later complain of things like neck problems.

Mr. Incredible’s 10-year-old son, Dash, is blessed with super speed but is forced to conceal it from his unknowing peers at school — until, that is, he complains that he is being held back by the “everyone is special” ethic, which holds that kids should receive a trophy just for showing up on the playing field.

Writer-director Brad Bird demurs when asked whether the movie is meant to be critical of trial lawyers:

“I just always wondered when a superhero broke through a wall, who was going to pay for that wall?” he said with a smile. “In the small-minded world we live in, that deed is not going to go unpunished.”

(John M. Broder, “Truth, Justice and the Middle-American Way”, New York Times, Oct. 20).

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A right to assistance pets

Under established disabled-rights law, store owners and other business people very seldom have a right to exclude the “service animals” that accompany blind and deaf visitors. Relatively few inconveniences ensue, in part because such animals tend to be few and extremely well trained. However, the idea has begun to catch on that persons disabled in other ways also have a right to the company of assistance animals; California regulators issued such a ruling as to dogs two years ago. Now a rapidly rising number of San Francisco residents are applying for tags for assistance dogs; the city has issued 658 tags for them. “‘The bottom line is that we’re seeing a lot of people come down here with notes from their doctors saying they need a companion dog to improve their quality of life,” said Carl Friedman, director of the city animal control agency. ‘Now we’re seeing a lot of people applying for the tags who have psychological issues.”’ Landlords and restaurants are not allowed to enforce no-dog policies against a registered animal. As for the pets’ required “training”, that “can be done by the owner and can be as simple as teaching the dog to wag a tail and lick a face if that’s what it takes to make someone with a diagnosed depression feel better.” (Rachel Gordon, “‘Assistance dog’ designation opens doors for pooches”, San Francisco Chronicle, Oct. 19). We were on to this trend very early: see Jul. 9, 1999.

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Update: N.Y. high court derails Blue Cross anti-tobacco suit

Several years ago, in a controversial ruling, activist federal judge Jack Weinstein ruled that health insurance plans in New York could sue tobacco companies for cost recoupment under state consumer protection law. The result, in 2000, was a jury verdict of $17 million to which Weinstein added an award of $32 million in attorney’s fees (see Mar. 6-7, 2002). However, the state’s highest court, the Court of Appeals, has now declared that the basis of the case is invalid: the Blues can’t invoke the consumer protection act. That will probably mean the suit’s dismissal. Health insurers do have a separate right to sue under older principles of “subrogation”, but the tobacco companies have robust defenses against that variety of action. (John Caher, “Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers”, New York Law Journal, Oct. 20). Two other Blue Cross actions in other states have also been dismissed. On dismissal of union health plans’ suits against tobacco companies, see Jan. 11, 2000.

And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either — the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.

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Update: judge OKs obstructed-view class action

Updating our Feb. 11-12, 2002 report: “A judge has approved a class-action lawsuit against Ticketmaster and Madison Square Garden for allegedly selling seats with obstructed views of Michael Jackson’s 30th anniversary concert three years ago. The judge said the suit potentially covers 7,840 ticket buyers ‘who received no advance notice that their seats were inadequate for viewing purposes.'” (“Judge gives go-ahead to suit against Ticketmaster, Madison Square Garden”, AP/CourtTV, Oct. 7).

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Calif.’s mandatory harassment training

A new law will require mid-size and larger employers in California to put their supervisors through interactive training aimed at preventing sexual harassment. Gov. Arnold Schwarzenegger, who may have a hard time standing up to feminist demands given his own record on the issue, signed the bill Sept. 29. (Jacqueline McManus, “New law for harassment awareness”, Monterey County Herald, Oct. 8; Peter Nicholas, “Business Sees an Ally in Governor”, L.A. Times/KTLA, Oct. 18). “The law defines a covered ’employer’ as one that employs 50 or more persons, which includes temporary service employees and independent contractors. The law does not specify that the 50 employees must be within California. That means that an employer with 50 total employees may be covered by the law, even if just a few workers are in California.” (“New California Law Mandates Anti-Harassment Prevention Training for Supervisors”, Jackson Lewis, Oct. 1) (via George’s Employment Blawg). When Connecticut lawmakers enacted the first such state law twelve years ago, I took a dim view.

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Asbestos: new at Point of Law

Over at Point of Law, which has an entire category devoted to asbestos litigation, there are several new posts on the subject. Ted Frank reports on a potentially major turnaround in Madison County, Ill. handling of asbestos suits, occasioned by the arrival of a new judge. Guest blogger Michael DeBow links to a substantial Houston Chronicle article on the crisis. As for me, I’ve got posts on how an Australian court has approved a claim for psychological injury from asbestos, on how Dallas tort czar Fred Baron is allegedly retired from the asbestos business (well, sort of), and on the “rocket docket” operation of court schedules in, again, Madison County.

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Stonewalling 101?

A New Jersey nursing home defense attorney finds himself under fire after a presentation to fellow litigators at which he seemed to recommend, whether in a jocular way or not, making plaintiffs fight for every document and asserting blanket claims of privilege to keep relevant papers out of their hands. Curiously, adversaries who’ve litigated against attorney Donald Davidson tell a reporter that they consider him a straight shooter who has not used abusive or stonewalling tactics against them. (Charles Toutant, “Candid Comments About Discovery Bring Lawyer National Notoriety”, New Jersey Law Journal, Sept. 21).

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Welcome New York Sun readers

I’m quoted and this site is mentioned in an article on the ever-expanding enforcement ambitions of New York Attorney General Eliot Spitzer (William F. Hammond Jr., “Spitzer Cements His Reputation as One to Watch”, Oct. 21)(more on Spitzer from Point of Law). More: For a more benign view of Spitzer than the one I take, see Daniel Gross’s Oct. 21 profile in Slate. Yet more: Martin Grace points out that the multifaceted AG has a blog.

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