Overlawyered: Chronicling The High Cost Of Our Legal System

Author Archive

“Lawsuit alleges alcohol marketed to teens”

The lawsuit, which seeks class-action status, was filed by the Armonk, N.Y. firm of Boies Schiller & Flexner LLP and by “David Boies III, of the Fairfax, Va., law firm Straus & Boies,” who is the son of Boies Schiller’s David Boies (Nov. 6, earlier cites). Although it claims not to be (yet) a broad-scale assault on the liquor industry a la tobacco, the suit seeks to recover “unlawful profits” made by Coors, Heineken, Brown-Forman, Diageo, and others for such supposed atrocities as employing the Captain Morgan character to sell rum and advertising in rock music magazines. Also being sued is the trade association The Beer Institute. (AP/Salon, Nov. 26). As we noted in July, liquor companies “have been curiously absent from the list of targets of mass litigation campaigns in the U.S.A. in recent years; but see Mar. 22, 2000.”

Juan Non-Volokh notes (Nov. 28) that Miller Brewing Co., which has been a client of Boies, Schiller & Flexner in the past, “is not among the named defendants in the suit. … Boies claims this is because Miller is not one of the ‘more egregious’ actors in the industry”. Julian Sanchez (Reason “Hit and Run”, Nov. 28) discerns the ripple effects of anti-alcohol agitation by the Robert Wood Johnson Foundation and other Safety Dry forces. Jim Leitzel (Nov. 19) takes note of a study suggesting that alcohol advertising probably does raise the rate of underage drinking. Professor Bainbridge (Nov. 28) has some thoughts on the regulation-through-litigation angle. Further: for more on the Neo-Drys, see Radley Balko, “Back Door To Prohibition”, Cato Policy Analysis #501, Dec. 5. (Update Feb. 16: second suit targets brewers).

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“Lawsuits battering local governments”

Arizona: “Taxpayers have shelled out more than $140 million since 1998 to cover the cost of claims against Valley and state governments, and experts expect the losses to mount as the public sector’s deep pockets become an ever more attractive target.” Arizona Republic does a heavily reported feature on the state of public liability in the surprisingly litigious Phoenix area, including the case of the Scottsdale parkgoer who got $10,000 for being attacked by a goose. A bunch of sidebar stories too, and more is promised on Wednesday (Pat Flannery, Arizona Republic, Nov. 30)

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Update: ABA Journal settles “fixer” libel case

The American Bar Association Journal will publish a half-page apology, as well as pay an undisclosed sum, to settle attorney Richard A. Sprague’s claim that he was defamed when the magazine described him as “perhaps the most powerful lawyer-cum-fixer” in the state of Pennsylvania. (Dec. 5-6, 2001) Although the word “fixer” is widely employed to describe political wheeler-dealing of a lawful sort, a judge had ruled that it might also convey the impression that Sprague improperly “fixed” court cases. “In its answer to the suit, the ABA attached a list of more than 100 examples of prominent lawyers described as ‘fixers’ in such publications as The New York Times and the Washington Post.” (Shannon P. Duffy, “ABA, Sprague Agree to Settlement”, The Legal Intelligencer, Nov. 21).

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Update: second cardiologist sued over alleged fen-phen fraud

“A second doctor was accused of fraud [earlier this month] in a federal lawsuit filed by the AHP Settlement Trust, the entity created to process claims related to the $3.75 billion fen-phen settlement.” (see Sept. 21, Sept. 25). The new suit alleges that a New York City cardiologist conspired with an unnamed law firm to submit medically unreasonable claims of heart valve injury, resulting in the payment of millions of dollars in claims. “Compensation was a motivating factor in the fraud, the suit alleges, noting that for each VHD [valvular heart disease] certification, Mueller allegedly received an immediate payment of $500 over and above the $900 he received for interpreting the echocardiogram. The suit alleges that Mueller received another payment of $1,500 following compensation to the claimant, earning more than $1 million.” Contingency fees for expert witnesses are not necessarily prohibited as such in American courtrooms, though they have been widely viewed with distaste by ethics authorities. (Shannon P. Duffy, “Fen-Phen Settlement Trust Sues Second Doctor for Fraud”, Legal Intelligencer, Nov. 17).

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Update: Library Hotel settles Dewey suit

To settle a lawsuit by the Ohio-based library cooperative that owns the copyright to the Dewey Decimal System, the Library Hotel in New York City has agreed to make an unspecified payment to a nonprofit organization that promotes children’s reading and specify in its advertising that the copyright belongs to the nonprofit group. (“N.Y. Hotel Settle Dewey Decimal Case”, AP/Akron Beacon Journal, Nov. 25)(see Sept. 25).

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Holiday posting

Posting will continue sparse through the weekend as we enjoy the Thanksgiving holiday and catch up on non-site obligations. See you in a few days.

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Welcome National Review Online and Weekly Standard readers

At National Review Online, our Manhattan Institute colleague Jim Copland contrasts Hollywood’s oddly heroic image of the trial lawyer with the often socially destructive reality, citing the blame-shifting for profit exemplified in the Ninth Circuit’s recent Ileto v. Glock case (gun manufacturer, as opposed to criminal, gets sued over racist’s murder spree). (“Fiction to Fact”, Nov. 26) And the Weekly Standard, discussing the same case in its “Scrapbook” feature (Dec. 1, last item, “Shooting Blanks” — currently subscribers only) cites this commentary by Ted Frank on “the excellent website Overlawyered.com”. The Standard’s editorialists also point out that despite the plaintiffs’ elaborately spun theories of negligent distribution, the Glock in the case “was originally sold to a police department. … [In future,] manufacturers like Glock will presumably want to be wary about the kind of police departments they sell their firearms to.”

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Newsweek query (updated)

[Revised and updated, see below] Newsweek magazine is preparing a special feature on fear of litigation, and although we’ve been working with their writers for a while on it, they asked to hear directly from readers like you if you can offer personal examples from your own experience of how you’ve changed the way you do business, go to school, pursue recreation, etc. because of your or someone else’s fear of being sued. [Update 1 p.m. EST Wed. — Newsweek’s writer tells us that this notice has elicited enough of the sort of the material she requested, so we are taking down the contact info. Thanks to our readers, including those who cc’d us on their correspondence]

Appeals court slashes Romo punitives

“A California appeals court has cut a record $290 million punitive-damages verdict to $23.7 million for a Ford Bronco rollover accident that killed three people.” The decision in Romo v. Ford Motor is the largest award reduction yet following guidance from the U.S. Supreme Court in its April decision in a punitive damages case against State Farm. (David Kravets, “Court reduces $290 million verdict against Ford to $23.7 million”, AP/San Francisco Chronicle, Nov. 25). “As we read State Farm ? the legitimate state goal that punitive damages may seek to achieve is the ‘condemnation of such conduct’ as has resulted in ‘outrage and humiliation’ to the plaintiffs before the court,” Justice Steven Vartabedian wrote for [a unanimous panel of California’s 5th District Court of Appeal]. “It is not a permissible goal to punish a defendant for everything it may have done wrong.” (Mike McKee, “Punitive Damages Take Big Hit”, The Recorder, Nov. 26). The Romo trial itself in 1999 was remarkable for its combination of brazenly demagogic plaintiff’s arguments and bizarre jury deliberations: see Aug. 24, 1999, Sept. 17-19, 1999, Aug. 27, 2002 and more recent links. Update Feb. 15: case settles.

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