In Reason, Ronald Bailey fact-checks the New York Times on the purported environmental catastrophe near Buffalo that touched off a hundred copycat toxic-tort episodes as well as the federal Superfund program (Mar. 24).
Author Archive
“Tall passengers come up short in lawsuit”
“A California Court of Appeals panel rejected a lawsuit against several airlines, including American and Southwest, by the Tall Club of Silicon Valley which sought preferential seating in roomier exit rows for men at least 6 foot, 2 inches and women at least 5 foot, 10 inches.” (Reuters/Houston Chronicle, Mar. 3)(via Legal Humour)(& letter to the editor, Apr. 2).
M.D.s in the dock
The AMA’s American Medical News takes the reader inside a Chicago malpractice trial in which Dr. Rose Diakos was sued for performing a tubal ligation which failed to prevent a patient’s pregnancy. The case resulted in a defense verdict, in part because the plaintiff’s expert witness came across quite badly, and the doctor learned at least one lesson: document her patient interviews with lots and lots of notes in future to protect herself (Tanya Albert, “One physician’s malpractice battle: Dr. Diakos on trial”, Mar. 22-29). Chris Rangel of RangelMD has some further thoughts on expert witnesses (Mar. 14). Psychologist Dan Shapiro, who specializes in counseling doctors, has written a book (“Delivering Doctor Amelia“) recounting his attempts to help a talented young ob/gyn who suspends her practice amid feelings of worthlessness and failure; the trigger for her doing so is the birth of a baby with cerebral palsy to one of her patients, with attending lawsuit (description in NYU Literature, the Arts and Medicine Database) (via MedPundit). And the Pennsylvania Medical Society has published comments by eight doctors-to-be explaining why they do not intend to set up practice in the litigation-wracked Keystone State (“The Medical Resident Diaries — Why They?re Leaving“).
U.K.: fear of three-in-row swings
“The arrival of the American-style compensation culture is turning open spaces and public parks into dreary, fun-free, soulless places, the Government’s architecture and building advisers said yesterday. … The Commission for Architecture and the Built Environment (Cabe) estimated that the cost to local authorities of bogus or excessive compensation claims was ?117 million a year,” enough to pay for an additional 3,900 park keepers, it estimates. The report “highlighted the removal of a swing from a playing field because it faced the sun and could blind children. Another regular occurrence, it said, was the removal of three-in-a-row swings because the outer swings could hit the one in the middle.” (Charles Clover, “Compensation culture ‘turns our parks into dreary, fun-free deserts'”, Daily Telegraph, Mar. 25)(related site).
Sen. Graham introduces loser-pays bill
Sen. Lindsey Graham (R-S.C.) has introduced legislation that would provide for a modified “loser pays” rule in federal courts. It’s of the “offer-of-settlement-driven” variety, and would expose litigants to a possible fee shift if they turned down a settlement offer and then did less well at trial. “Loser pays’ does more to stop frivolous lawsuits in the federal court system than any other reform,” Graham said. “Litigation designed to shake someone down for a settlement would be far less frequent if each party had something to lose.” And: “The culture of suing anybody about anything with no consequences to yourself has to change.” (Amy Geier Edgar, “Graham urges reform to curb frivolous suits”, AP/Myrtle Beach (S.C.) Sun-News, Mar. 2).
Shhhh! He’s got a lawyer!
In 1996 Frank Sulloway had a publishing hit with Born To Rebel, a book arguing that birth order is an important influence on individuals’ destinies (supposedly, first-born children grow up conservative, later-borns want to rock the boat). There were doubters, however, and a critique has now appeared claiming that Sulloway’s data does not back up his conclusions. According to a summary of the situation by Alex Tabarrok (Mar. 20), the appearance of this critique in print was drastically delayed by Sulloway’s threats to sue the journal’s publisher and editor over defamation and other alleged wrongs. The journal’s publisher declined to publish even a debate on the book unless assured that it would not be sued, with the result that editor Gary Johnson and his association wound up publishing it independently, after nearly five years of delay. Tabarrok has much more detail about the story, which he finds “shocking” and “disturbing”.
Lawyers for author John Gray (Men are From Mars…) threatened a libel suit after a weblog said rude things about his on-first-glance-impressive educational credentials. That ensured more attention to the embarrassment, as Instapundit (Mar. 22) points out in a post with many links. (Plus: J.B. Howard Jr. has more on the case, Mar. 25). And the Michigan Court of Appeals has “dismissed a lawsuit in which the Michigan Education Association claimed the Mackinac Center, a free market think tank that has been at odds with the union on issues such as charter schools and education vouchers, had violated the privacy of MEA President Luigi Battaglieri by quoting him in a fund-raising letter. The court concluded that the letter ‘falls squarely within the protection of the First Amendment for discourse on matters of public interest.'” (Jacob Sullum, Reason “Hit and Run”, Mar. 22)(Mackinac Center, Mar. 19) More: John E. Kramer, “Calling the Bully’s Bluff”, Liberty and Law (Institute for Justice), Jun. (more on media and free speech suits)
Rail union head got FELA kickbacks
“The president of the United Transportation Union pleaded guilty to a racketeering conspiracy on Thursday, admitting that he solicited bribes from lawyers trying to get access to lucrative legal work for rail workers.” In a scheme that dated back to 1995, Byron Boyd and three other officials of the Cleveland-based union “solicited cash from lawyers who wished to represent injured rail workers in personal injury lawsuits against rail employers. Those are potentially very lucrative suits since there is no limit to legal damages under federal law. … The men got at least $477,000 in cash”. (“Transportation Union Chief Admits to Racketeering”, Reuters, Mar. 12). “U.S. Attorney Michael Shelby said a scheme like the one Boyd was involved in is not uncommon in labor unions and the federal government will continue to investigate such schemes. … The case was handled out of Texas because five of the lawyers that paid money as part of the scheme were from the Houston area and they cooperated with prosecutors, Shelby said.” (Juan Lozano, “Union president pleads guilty to labor racketeering”, AP/Fort Worth Star-Telegram, Mar. 11). Railway workers are covered by the Federal Employers Liability Act (FELA), which affords more lucrative recoveries than does workers’ compensation law; they have also been major filers of asbestos claims.
Irvine Federalist speech Wednesday
This Wed., March 24 (6:00 reception, 6:30 program) I’ll be in Southern California, speaking to the Orange County chapter of the Federalist Society. The event will be held at the offices of Knobbe Martens Olson (no relation) & Bear in Irvine. Details and RSVP here. Plus: for those who will be in the Boulder, Colo. area Apr. 5-9, the Conference on World Affairs has now posted the schedule of panels I’ll be on.
Sarbanes/Oxley as subsidized discovery
Jane Galt’s pseudonymous co-blogger, “Mindles H. Dreck”, has a link-filled commentary on recent developments in financial and corporate law Mar. 14) with too many interesting contents to enumerate here. It begins: “I submit to you that regulators of commerce in the United States are gradually: Subsidizing discovery for both public and private litigants; Substituting subjective standards of fraud and misbehavior for specific guidelines”. Among recent regulatory initiatives aimed at “creating a paper trail for litigators” are requirements for: “permanent retention and storage of internal and external email in non-alterable, third-party maintained media; substantial, sworn disclosure of procedures and safeguards (via Sarbanes-Oxley, for instance); the identification of key individuals that should become the focus of any government or litigation action (via designation of key officers and departments, and the Sarbanes-Oxley mechanism of written representations)”. The result of these rules will predictably be to accelerate the spread of various defensive practices through the corporate and financial world, such as more discussion of business matters on a strictly verbal basis with nothing committed to writing. Equally interesting is the question of who definitely does not have to maintain a discovery trail to facilitate outside scrutiny: “I recently had a billing dispute with a securities lawyer. I referred to an email he had written some months before estimating charges for the assignment. He informed me that his firm’s policy is to permanently destroy all email over three months old in order to protect the firm and its clients. Given the requirements for email retention in the financial industry (interpreting which his firm makes a pretty penny), I found this hysterically funny.”
Prosecuting the innocent, without consequences
Yesterday’s (Sunday’s) New York Post ran my review of Dorothy Rabinowitz’s just-out-in-softcover No Greater Tyrannies, about abuse-hysteria prosecutions. An excerpt: “In 1696, four years after the Salem executions, the Massachusetts colony held a day of contrition and collective soul-searching. Today, the persecutors seldom apologize; instead they tend to rise upward. Scott Harshbarger, D.A. in the Amirault case, went on to become attorney general of his state and now heads Common Cause, in which capacity he lectures the rest of us on ethics and good government.” (Walter Olson, “Salem Is Still With Us”, New York Post, Mar. 21). The New York Times reports that wrongful convictions, even when serious prosecutorial error or misconduct is involved and even when the accused was evidently innocent, seldom result in any career consequences for local prosecutors (Andrea Elliott and Benjamin Weiser, “When Prosecutors Err, Others Pay the Price”, New York Times, Mar. 21). And the Wall Street Journal has reprinted Ms. Rabinowitz’s column about the amazing ordeal gastroenterologist Patrick Griffin went through on charges of sexually abusing a patient, which culminated in his eventual acquittal on retrial — though by that point his medical license had been yanked and his practice was in ruins (“The Doctor’s Story”, Wall Street Journal, May 24, 2000). (via GruntDoc) (see also Jan. 8, Sept. 1)