Softening his former view of the Martha Stewart affair, Stephen Bainbridge suggests that the government may be overreaching in prosecuting Stewart for publicly denying a charge of insider trading when it does not see fit to charge her with insider trading itself (Oct. 7; Oct. 8; Oct. 9; Oct. 10; Oct. 14; and follow links from the various entries). See also Reason’s recent cover story with its unnecessarily provocative title and subhead (Michael McMenamin, “St. Martha”, Oct.). Other views: Yin Blog, Oct. 8: Daily Kos, Jun. 5; Chris Byron, “$uper Winter Sale for Martha Stewart”, New York Post/Fox News, Jun. 11. Update Jan. 27 (trial).
Author Archive
Yipes
EthicalEsq?, one of the very short list of weblogs that we recommend to absolutely everyone interested in the law, is suspending publication while its author, David Giacalone, concentrates on health battles. Even if we didn’t find ourselves in agreement with David’s views as expressed on the site (and we nearly always do) we’d admire the way he’s staked out one vital beat, legal ethics, and come through with consistently insightful commentary. Let’s hope David enjoys a speedy return to good health; in the mean time, in less than half a year of publication so far he’s compiled valuable archives on such subjects as class actions, lawyer discipline, and, of course, fees.
Chapman on ADA misconduct case
“You may think it’s prudent to keep anyone prone to substance abuse away from large, shiny objects that go boom. You might laugh out loud at someone who insists that a firing offense may not be taken into account when he asks to be rehired. But you are not a judge on the 9th Circuit Court of Appeals. … the fact that Hernandez’s claim could be upheld by a federal appeals court indicates just how far the ADA went in accommodating people who prefer not to take responsibility for their own actions.” Steve Chapman on the ADA right-to-return-after-misconduct case currently before the Supreme Court (see Oct. 7, Sept. 16-17, 2002) (“Making a drug ‘disability’ an asset”, Chicago Tribune, Oct. 12). Update Dec. 13: Supreme Court rules.
Update: two personal-responsibility cases
Updating a case covered on Mar. 28, 2000: a Texas court of appeals earlier this year reversed an award of $43 million (voted as $65 million by the jury, then reduced by the trial judge) against Honda to the survivors of a woman who accidentally rolled her car off a boat ramp into Galveston Bay and at autopsy was found to have .17 alcohol in her bloodstream. Her survivors argued that she was trapped in the sinking car by her seat belt, but the appeals court said they had not shown that any alternative belt design would have been any safer overall. Incidentally, this particular Galveston boozy pier roll-off award is guaranteed to be a different case entirely from the Galveston boozy pier roll-off award discussed in this space Aug. 28, in which the city of Galveston and its pier lessee were supposedly the ones to blame, the verdict came in at $10.5 million, and an appeals court again threw it out (Mary Alice Robbins, “Texas Court Reverses $43M Judgment Against Automaker”, Texas Lawyer, Feb. 19).
In an even more belated update, pool owners in Massachusetts were given a reason to heave a sigh of relief when the plaintiff cited in our Jan. 24, 2000 item, an experienced swimmer of 21 years old, lost his appeal before the state’s highest court in which he had argued that his girlfriend’s grandparents should have warned him not to dive into the shallow end (Pierce, Davis & Perritano, LLP, “Open and Obvious Danger Doctrine Reaffirmed”, Winter 2001; for details of case see also Cathleen F. Crowley, “Court decision could impact pool owners”, Lawrence Eagle Tribune, Jan. 4, 2000).
Chicago lead paint case dismissed
“A judge has dismissed the City of Chicago’s lawsuit seeking hundreds of millions of dollars from lead-based paint manufacturers, saying the city had not proven that the companies created a public nuisance.” (“Chicago’s lawsuit over lead paint dismissed”, AP/Milwaukee Journal Sentinel, Oct. 8). The New York Times recently noticed one complication affecting the diagnosis of an “epidemic” of lead poisoning among inner-city children, namely that a large share of urban kids found to have high lead-blood levels are immigrants from countries where lead exposures are very high (Kirk Johnson, “For a Changing City, New Pieces in a Lead-Poisoning Puzzle”, New York Times, Sept. 30 (fee archives); Steven Malanga, “The Lead Paint Scam”, New York Post, Jun. 24, 2002, reprinted at Manhattan Institute site (same point); our entry for Oct. 28-29, 2002).
Tobacco recoupment suit loses in France
Declining to follow our bad example: “A French health authority has lost its attempt to sue four tobacco companies for the cost of treating thousands of cancer patients. In the first case of its kind in France, the national health insurance fund (CPAM) in Saint-Nazaire had demanded 18.6m euros from BAT-Rothmans, Philip Morris, JTI-Reynolds and Altadis. The CPAM said it was the amount it had spent treating more than 1,000 people with smoking-related diseases.” A court threw out the action as ungrounded in law. “‘It is interesting to note that no jurisdiction in Europe has so far allowed this kind of surrogate action against cigarette manufacturers,’ said BAT in a statement.” (“Health fund loses tobacco fight”, BBC, Sept. 29)(see Oct. 7, 1999 (Israel) and Feb. 1-3, 2002 (foreign governments suing in U.S. courts).
Welcome WHRV-FM listeners
I’ll be a guest on HearSay with Cathy Lewis on Hampton Roads, Va.’s NPR affiliate today just after noon (around 12:10 p.m. EST), discussing this site and the issue of personal responsibility. You can tune in live via WHRO/WHRV’s website. Also check out our archive of personal responsibility items.
Suing NFL over fan’s DWI
A fan downed 14 beers at a New York Giants game and drove off, causing a crash that left a child paralyzed. Now the family’s lawyers want the league to pay. “I understand they are searching for a deep pocket,” said Rutgers law prof Howard Latin. “But at a certain point, people have to be responsible for their own behavior.” (Peter Pochna, “Family sues NFL for fan’s DWI that left child paralyzed”, NorthJersey.com, Oct. 10)(reg) (& see “Sports Betting: The National Football League Versus the Trial Lawyers” (commentary), Center for Individual Freedom, Oct. 16). Update Jan. 21, 2005: jury returns $105 million award against beer concessionaire Aramark after dismissal of claims against team and league.
Annals of zero tolerance: sharing asthma inhaler
Texas: “A teenager was disciplined for sharing medication used to treat asthma, but he said it saved his girlfriend’s life, News2Houston reported Wednesday. Andra Ferguson and her boyfriend, Brandon Kivi, both 15, use the same type of asthma medicine, Albuterol Inhalation Aerosol. … But the school nurse said it was a violation of the district’s no-tolerance drug policy, and reported Kivi to the campus police. The next day, he was arrested and accused of delivering a dangerous drug. Kivi was also suspended from school for three days. He could face expulsion and sent to juvenile detention on juvenile drug charges.” (“Teenager In Trouble In Inhaler Incident”, Yahoo/KPRC, Oct. 8)(via WSJ “Best of the Web“)(see Apr. 8-9, 2002). More: Alan Brain gets the principal’s side of the story including some updates (student said not to have been expelled, police will not press charges) (Oct. 13). But see Click2Houston, Oct. 10 (student expelled until after Christmas, but has chosen to homeschool instead of returning).
“Arnold’s agenda”
The governor-elect said many of the right things about litigation reform, though both friends and foes are still guessing as to how serious his commitment is. “Before the recall, the influential trial lawyers lobbying group, the Consumer Attorneys of California, had warned of judicial doom under Schwarzenegger … [CAOC president Bruce] Brusavich] worked hard to keep Schwarzenegger out of office, raising nearly $2 million from trial lawyers for Davis and Lt. Gov. Cruz Bustamante. … Brusavich expects Davis will sign three more plaintiffs-supported bills — one modifying the statute of limitations in toxic torts, one prohibiting pre-dispute arbitration in labor contracts, and one allowing causes of action for labor code violations — before he leaves office.” The litigation lobby also wants Davis, who’s been filling judicial vacancies at a feverish clip, to fill all the rest before leaving. Not if Arnold has his way: “Schwarzenegger Wants Davis to Stop Filling Posts and Signing Bills” reads a Friday morning headline (John M. Broder, New York Times, Oct. 10) (Jeff Chorney, The Recorder, Oct. 9).