Good news dept.: Although it’s still very, very difficult to prevail in a case of malicious prosecution against someone who’s wrongfully sued you, in California it’s now slightly less difficult than it used to be. Last month “the state Supreme Court, in a case of first impression, ruled unanimously that lawyers could be sued for malicious prosecution if they continue to pursue a case after learning it isn’t supported by probable cause.” (Mike McKee, “Pursue a Bad Case, Risk Getting Sued for Malicious Prosecution”, The Recorder, Apr. 21). George Wallace and David Giacalone comment, and the latter tells a personal war story.
Author Archive
“Shouldn’t have been allowed on” roller coaster
“A 55-year-old man who died after falling out of a roller coaster shouldn’t have been allowed on the ride because he was heavy and had cerebral palsy, his mother said Sunday.” (“Family Says Man Shouldn’t Have Been On Ride”, NBC30.com, May 2). “Park officials said Mr. [Stanley J.] Mordarsky was able to board the roller coaster by himself, according to broadcast reports on Sunday. The park, under the federal Americans With Disabilities Act, must allow disabled people on rides if they can get in the rides by themselves, the officials said.” (“Man Dies After Fall From Roller Coaster”, AP/New York Times, May 3). (More: Boston Globe). For other instances in which amusement park patrons may have been killed by their rights, see Oct. 29, 2001 (obesity) and Aug. 31, 1999 (mental retardation).
Number one in donations (and so civically engaged)
In this campaign cycle, “once again, lawyers as a group are not only the largest donors of any single profession tracked, they are also the most consistent, campaign watchers say. As of March 1, when the latest Federal Election Commission figures were available, the legal profession had contributed more than $65 million to federal campaigns since Jan. 1, 2003, according to the nonpartisan Center for Responsive Politics. … ‘It looks like lawyers are making a strong effort to make up for the lack of soft money,’ says CRP spokesman Steve Weiss.” Washington, D.C., attorney William Canfield, who chairs the ABA?s Standing Committee on Election Law, explains that lawyers “are so much more civically engaged than most parts of society”. (Susan Kostal, “Spreading the Money Around”, ABA Journal, May).
Unlawful to test for mad cow
A story already widely discussed on weblogs, but too crazy to let drop: Japan will not allow beef imports from the U.S. unless each animal is tested for mad cow, and Kentucky cattleman John Stewart of Creekstone Farm would be happy to oblige in order to sell his products there. The U.S. Department of Agriculture, however, supported by most of the beef industry, has ruled that he may not: the department does not intend to set up a testing program itself, and private testing is unlawful. “They’ve told us if we attempt to buy those test kits and use them, they are going to put me in jail,” Stewart said. (David Kerley, “Mad Cow, Madder Cattleman”, ABCNews.com, May 2 (aired on Apr. 18))
Lawyer: school should have secured bus windows against opening
In Indianapolis, Raul Gonzalez IV, 16 and developmentally disabled, “died after he stuck his head out of a [school] bus window and struck a tree last fall. The bus driver was steering to avoid an injured raccoon”. Now his mother, Irma Garcia, has filed a tort claim notice against the city and Perry Township schools on a variety of negligence theories. Her lawyer, Robert York, said in particular that the fatality could have been averted “if the bus’s windows had been blocked from opening more than a few inches”. The article makes no mention of what such a recommendation might mean for the safety of school bus passengers in other situations, such as emergency evacuations. (Vic Ryckaert, “Perry Schools may be sued in bus accident”, Indianapolis Star, Apr. 16)(& letter to the editor, Jun. 22).
Update: judge OKs tire settlement
Despite objections from rival plaintiff’s lawyers and others, state district judge Donald Floyd in Beaumont, Texas, has approved the settlement of a class action on behalf of consumers who own or owned recalled Firestone tires allegedly prone to tread separation. The settlement excludes anyone who has filed actual claims of personal or property injury related to the tires. Class members (other than 45 named plaintiffs who will receive $2,500 each) will get no monetary compensation, but will have the right to trade in the tires if they did not respond to the earlier recall, and Firestone has pledged another $65 million for education and safety programs. The class action lawyers, meanwhile, which include Beaumont’s Provost Umphrey, will get $19 million. See our reports of Sept. 19 and Oct. 8. (Brenda Sapino Jeffreys, “Judge Approves $149 Million Firestone Tire Settlement”, Texas Lawyer, Mar. 22).
Update: PPA litigation
In 2000, after a study raised concerns of a possible connection with hemorrhagic stroke, the Food and Drug Administration banned the use of phenylopropanolamine (PPA), a stimulant long widely used in over-the-counter decongestants like Alka-Seltzer Plus and Contac, as well as in appetite suppressants. Lawyers rushed to file suits blaming drugmakers for strokes and other ills suffered by persons who had used the once near-ubiquitous compound (see Apr. 6-8, 2001; Oct. 28, 2003). Earlier this spring the Los Angeles Times ran a long piece summarizing (and uncritically endorsing) the plaintiffs’ case (Kevin Sack and Alicia Mundy, “A Dose of Denial”, Mar. 28). However, juries thus far have found that case considerably less persuasive: last month a Philadelphia jury returned a defense verdict in a case against Glaxo SmithKline over its Contac 12 hour medication (representing the plaintiff: the senatorially well-connected Kline and Specter). In three trials so far, that leaves the score at 0-3 in favor of the defense. (Melissa Nann, “Defense Wins Pennsylvania’s First PPA Verdict”, The Legal Intelligencer, Apr. 6). Update Jan. 21, 2006: further setbacks to litigation.
Miss. governor: legal climate helped cost us auto plant
Mississippi Gov. Haley Barbour says the Magnolia State’s famously pro-plaintiff litigation climate may have played a role in Toyota’s decision last year to locate a new plant in Texas rather than northern Mississippi. Barbour “gave reporters and legislators copies of a letter written to him last week by Dennis C. Cuneo, a New York-based senior vice president of Toyota Motor North America Inc. …Cuneo said he led the site selection for the Japanese auto maker’s newest plants and was impressed by Texas Gov. Rick Perry’s commitment to changing that state’s civil justice system. Cuneo wrote Mississippi is ‘desirable’ for its infrastructure, pool of skilled labor, quality of life and proximity to other Toyota plants and suppliers. But he said ‘the litigation climate in Mississippi is unfavorable, and negatively impacts the state’s business climate.'” (Emily Wagster Pettus, “Barbour: Legal climate hurt state in push to get Toyota plant”, AP/Biloxi Sun-Herald, Apr. 26). Barbour was promptly assailed by lawmaker Ed Blackmon, himself a successful plaintiff’s lawyer, who heads a judiciary committee in the lower house of the Mississippi legislature where he has helped to bottle up liability reform. Blackmun said he “doesn’t believe tort reform played a role in Toyota’s decision and said he guesses ‘Maybe someone at Toyota owed (Barbour) a favor’ and wrote the letter.” (Geoff Pender, “House, Senate show little tort progress”, AP/Biloxi Sun-Herald, Apr. 27; Shelia Hardwell Byrd, “Barbour says House needs chance to vote on tort reform”, AP/Biloxi Sun-Herald, Apr. 29; “Letter shows state needs tort reform” (editorial), Natchez Democrat, Apr. 27; Julie Goodman, “Lawmaker accuses gov. of exploiting tort myth”, Jackson Clarion-Ledger, Apr. 29).
Tobacco-ban roundup
“California could be on its way to becoming the first U.S. state to outlaw smoking in cars or trucks that have children inside.” The bill, which would make lawbreakers of parents transporting their own children, has been introduced by Assemblyman Marco Firebaugh and is being supported by the bossyboots American Lung Association, a good reason to scratch that organization off one’s charitable donation list (“Calif. Bill Would Ban Smoking in Car with Kids”, Yahoo/Reuters, Apr. 28)(see Sept. 24). (Update May 29: bill narrowly defeated in California Assembly.) Irish Minister for Health and Children Miche?l Martin, who pushed through a recent ban on smoking in pubs and most other public places in the Emerald Isle, has announced that he is “very tentatively” mulling a fat tax, according to a profile by Andrew Stuttaford, who calls Martin a number of rude names including “nosey, hectoring clown” (“Goodbye to All That”, National Review Online, Apr. 27)(via Radley Balko). A bill being discussed in Rhode Island’s legislature and backed by state Attorney General Patrick Lynch, primarily aimed at increasing the penalties for school truancy, would also authorize courts to revoke or suspend the driver’s license of high schoolers determined to be “wayward”, a category that includes students found in possession of cigarettes. (Wendy Fontaine, “Truancy plan gets mixed review”, Newport Daily News, Apr. 30). And Jacob Sullum catches the federal government’s National Institute of Aging dispensing flagrant untruths about the relative hazards of smokeless tobacco (“Lies and the Health Nannies Who Tell Them”, Reason “Hit and Run”, Mar. 24).
“DirecTV accused of filing baseless suit”
“Two years after DirecTV launched a legal onslaught against thousands of alleged satellite television ‘pirates,’ a Florida resident who was sued by the company is now claiming malicious prosecution.” The company has filed numerous actions against persons it believes have been in possession of illegal signal piracy devices — famed non-murderer O.J. Simpson is one such defendant — but critics charge (see Jul. 24) that it is casting too broad a net. “The legal assault began after a series of raids on companies that sold decoders enabling viewers to steal DirecTV’s signal. The satellite television operator obtained the names of some 100,000 people in the raids from credit card receipts and other lists.” In the Florida case, Luc Senatus alleges that he was a victim of credit card theft and neither purchased nor received a signal decoder, but was sued by DirecTV anyway. (Matthew Haggman, Miami Daily Business Review, Mar. 26).(& letter to the editor, Oct. 31). Update: see also Crime and Federalism, Feb. 15, 2006 (court rules suits by DirecTV not a RICO violation).