Following the spectacular $2 billion class action settlement in Beaumont, Texas against Toshiba for a reported data glitch in its laptop computers (see Nov. 3, 1999 and later coverage) class action lawyers descended with copycat suits against Compaq and other rival laptop makers. A federal class action was however rejected (see May 11-13, 2001) and now the Texas Supreme Court has rejected a national class action filed in Texas state courts. However, “attorneys for the class aren’t throwing in the towel and say a statewide class action still is possible”. Besides proffering other defenses, a lawyer for the company “contends that a buffer in Compaq’s computers prevents problems with the FDC [floppy disk controller].” (Mary Alice Robbins, “Court Boots Nationwide Class Action Against Compaq”, Texas Lawyer, May 18).
Author Archive
Opportunistic dad sent packing
According to what the court described as “overwhelming and credible evidence,” Derrick Williams refused to acknowledge that he was the father of Lisa Farmer’s unborn child, or have any contact with Farmer. Then he learned that she’d been awarded $150,000 after being in a car accident that claimed the life of the fetus. Then he decided that he really was a deeply devoted sort of dad after all and claimed half the money. Eventually the Mississippi Supreme Court told him to get lost. (“Mississippi gets it right” (editorial), Chicago Tribune, Aug. 10).
Client neglect: Fagan ordered to pay $3.4 million
Attorney Edward Fagan, much publicized for his role in Holocaust and other reparations controversies, “is facing a $3.2 million legal malpractice judgment for suing the wrong party in a personal injury case and failing to oppose its dismissal.” Former client Allen C. Tavel sued Fagan, saying he had neglected a product liability case against Honda Motor Corp. and the manufacturer of a seat belt that allegedly failed over an accident in which Tavel was seriously injured. “Fagan did not contest Tavel’s malpractice suit, which resulted in a default judgment. In May, Justice Shirley Kornreich of Manhattan Supreme Court awarded Tavel $1.2 million for his economic losses and $2 million for pain and suffering.” (Anthony Lin, “Personal Injury Client Wins Malpractice Award Against Holocaust Victims’ Lawyer”, New York Law Journal, Aug. 12). Fagan has been the subject of extensive coverage on this site, including Jun. 24-25, 2002; Apr. 2 of this year and links from there. More: Feb. 5, 2005.
DUI laws in the dark
The Washington Post profiles various local residents who saw their lives turned upside down, sometimes losing their marriage or livelihood, after being arrested under driving-under-the-influence laws which mandate automatic license suspension for first-time offenders. One woman had attended a birthday party after which she drove with a slightly elevated blood-alcohol level (0.09) which would not have constituted a legal offense at all until lawmakers ratcheted down permissible blood levels. (Lena H. Sun and Carol Morello, “For DUI, Personal Costs Are High”, Washington Post, Jul. 25). Soon the Post was fielding vehement letters to the editor accusing the paper’s reporters of excessive sympathy for these criminals. The TrueBeliever.org site, run by a California defense lawyer, has more, including a pointer to an organization called Responsibility in DUI Laws, Inc.. Radley Balko also offers a few opinions, with a big comments section, while KipEsquire dissents.
Judge: noise complaint merits no Creedence
According to Tim Sandefur (Aug. 6), musician John Fogerty, best known for his work with Creedence Clearwater Revival, in April of last year “prevailed in a lawsuit brought by an audience member who alleged that Fogerty?s music was so loud as to harm his hearing at the concert. …The opinion [by Judge Martin Schoenfeld], studded with quotations from Fogerty?s songs, held that
there is no standard of care by which a jury could determine on the evidence presented that defendants had breached a duty owed to plaintiff. Without knowing what is ?too loud,? and without knowing how loud the concert actually was, a jury would have to engage in double speculation to conclude that defendants? music was ?unreasonably loud.? Second, the doctrine of primary assumption of risk bars the instant action.
Finding no relevant cases in which concertgoers had been allowed to sue over excessive volume, the court also noted:
Surely this dramatic absence of litigation, in what is perceived to be such a litigious nation, speaks volumes to the fact that the principle applicable to the social compact governing the volume at Rock & Roll concerts is caveat emptor…. Litigation by an ?eggshell ear? plaintiff is not an appropriate means to impose an unlegislated noise code upon performers…and their legions of screaming fans….
The case cite (per Sandefur) is Powell v. Metropolitan Entertainment Co., Inc., 195 Misc.2d 847, 849 n. 1 (N.Y.Sup. 2003).
Radiology group expels member over testimony
“For the first time in its history, the American College of Radiology has expelled a member for giving inaccurate expert testimony. Dr. E. James Tourje, a neuroradiologist at Cedars-Sinai Medical Center in Los Angeles, was expelled [last month] for violating the ACR code of ethics, which states that expert testimony should be nonpartisan, scientifically correct, and clinically accurate.” Dr. Tourje had testified on behalf of the plaintiff in two malpractice cases, both of which resulted in defense verdicts. (“‘Expert’ witness gets booted from ACR”, Diagnostic Imaging Online, Jul. 8; Arati Murti, “Stat Read: Election-Year Politics Push Medical Liability Skirmishes to Trenches”, Imaging Economics, Aug.).
In a case several years ago, Judge Richard Posner of the Seventh Circuit gave impetus to the then-nascent trend toward professional self-regulation of expert testimony, writing in an opinion that “this kind of professional self-regulation furthers rather than impedes the cause of justice. More policing of expert testimony is required, not less.” (Russell M. Pelton, “Professing Professional Conduct: AANS Raises the Bar for Expert Testimony”, AANS Bulletin, Spring 2002. In the latest ABA Journal, Terry Carter discusses the controversy and in particular the formation of the Coalition and Center for Ethical Medical Testimony to promote efforts by associations to act against what Peter Huber has called malpractice by mouth. (“M.D. With a Mission”, ABA Journal, Aug., reprinted at CCEMT site)(PDF). The organized plaintiff’s bar is completely apoplectic about the trend: for its views, see Stephanie Mencimer, “The White Wall”, Legal Affairs, Mar-Apr.; Steve Ellman, “Code of Silence”, Miami Daily Business Review, Jun. 25, 2003.
“Kin of slain ‘thief’ sue city”
New York: “The family of a teen who was shot and killed by an undercover cop last year — after the youth put a BB gun to the head of the officer’s partner — filed a $5 million wrongful-death suit against the city yesterday.” Police say Allen Newsome, 17, had robbed several restaurant deliverymen in Harlem when he got caught in a January 2003 sting operation in which an undercover cop posed as a delivery worker. As the teen held a gun to the officer’s head, “a second officer — the cop’s partner — shot Newsome three times.” Now his mother is suing, saying cops took too long to summon medical help. (Carl Campanile, “Kin of Slain ‘Thief’ Sue City”, New York Post, Aug. 10)(via NY Civic “Quotidian“).
Another med-mal insurer collapses
This time it’s the Hospital Casualty Co. of Oklahoma, a subsidiary of the Oklahoma Hospital Association founded in 1977 by 12 local hospitals, capsized by nursing-home suits and by the general Sooner-get-sued atmosphere in its home state. Must have been mismanaged, our friends in the plaintiff’s bar will say. Earlier this year, the Physicians Liability Insurance Co., owned by the Oklahoma Medical Association and the state’s largest med-mal insurer, “was placed under formal supervision of the Insurance Department because the company didn’t have money to pay anticipated claims.” Another mismanaged outfit, no doubt. More details at Point of Law, where I also discuss the anguish felt by California insurance regulators over the relative lack of interest among low-income drivers in taking advantage of a scheme to rob Peter in Pacific Palisades to pay Paul in Pico-Union.
Target: general aviation services
Ten years ago, in one of the few significant liability reforms to emerge from Washington, D.C. in modern times, Congress provided litigation relief to small-aircraft makers, most notably by cutting off lawsuits filed more than 18 years after an aircraft was sold. As was widely reported, general aviation thereafter enjoyed a substantial recovery from its previous slump, with significant numbers of planes again being manufactured and sold. But trial lawyers, casting around for parties to sue after crashes, simply began naming everyone else in sight: flight instructors, “mechanics, manufacturers of replacement parts, fuel suppliers and airports. Aviation is again in decline.” Frasca Field in the college community of Champaign-Urbana, Ill. has “shut down its flight training, recurrent training and mechanics’ services a year ago because of skyrocketing insurance costs brought on by a lawsuit in which the field itself was found not guilty.
“The case stemmed from the 1996 death of a man who was a passenger in a Piper J-3 Cub that crashed in a cornfield near Thomasboro. Federal Aviation Administrators inspectors found no mechanical problems. The National Transportation Safety Board said the accident was caused by pilot error. Frasca Air Services Owner Rudy Frasca said the final legal defense price tag was about $600,000. ‘We won the case, but we lost the field,’ said Tom Frasca.” Much more here (J. Philip Bloomer, “Liability costs ground Frasca”, Champaign (Ill.) News-Gazette, Jun. 20).
Terrorism legal risk: see no evil…
“A year after the Sept. 11 attacks, the Justice Department obtained video surveillance tapes suggesting terrorists were targeting Las Vegas casinos, but authorities never alerted the public as they discussed whether a warning might hurt tourism or increase the casinos’ legal liability, internal memos show. …Another memo states the casinos didn’t want to see the footage for fear it would make them more likely to be held liable in civil court if an attack occurred.” Most local law enforcement authorities also declined an opportunity to view the tape. (John Solomon, “U.S. Didn’t Warn Las Vegas of Threats”, AP/Washington Post, Aug. 9). On the other hand, MGM Mirage spokeswoman Yvette Monet said her company did see the tapes and cooperated with authorities. An anonymous casino executive also tells the Las Vegas paper that the casinos kept their distance from a Detroit terrorism trial in which surveillance tapes were a factor because they feared having to reveal their security plans in sworn testimony, to the advantage of future terrorism attempts. (“Terrorism threats: city accused of inaction”, Las Vegas Review-Journal (with AP coverage), Aug. 10). More: Eugene Volokh comments as does Radley Balko.