It’s in Philadelphia, and the Inquirer does a good job of exposing its workings (L. Stuart Ditzen, “Business owners call flood of disability suits an ambush”, Aug. 31) (see Aug. 12 (Calif.) and earlier coverage).
Author Archive
Rx: Hired-gun control
“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).
It’s our swirl
Lawyers for Jamba Juice, a national chain known for fruit smoothies, have sent a cease-and-desist letter to the owners of Hullaballoo, a restaurant in the Old Town neighborhood of Salinas, Calif., demanding that the restaurant stop using its logo, which like Jamba’s is based on a tornado-like swirl. “‘What, are you kidding me?’ Hullaballoo co-owner Todd Fisher said of his initial reaction to the letter. ‘You serve everything you have in a paper cup. We’re fine dining. Our (logo) is a wine glass swirling with a fork and knife and spoon, yours is a blender. Quite different.'” Bob Wecker of the Wecker Group advertising agency, who devised the Hullaballoo logo, said whirls and swirls were commonplace long before Jamba came on the scene. (Virginia Hennessey, “A great big Hullaballoo”, Monterey County Herald, Sept. 7). Jamba’s mission statement says the company believes in “Fun, Integrity, Balance, Empowerment, Respect”.
AAA sued over stranded motorist’s murder
In the latest lawsuit seeking to find a large enterprise liable for the murder of a stranded female motorist, the survivors of Melissa Gosule are beginning a trial against the AAA auto club over the dilatory way in which it set about rescuing her after her car broke down on Cape Cod in 1999. Ms. Gosule instead accepted a ride from a stranger who turned out to have a long criminal record, and who murdered her. “Every year, the American Automobile Association, with a dues-paying membership of more than 46 million in the United States and Canada, gets about 30 million calls from motorists who need help with dead batteries, flat tires and other roadside problems.” (Denise Lavoie, “Auto club goes on trial over slaying of motorist”, AP/San Francisco Chronicle, Sept. 8). Last month (see Aug. 9) the Nebraska Supreme Court ruled that the family of Amy Stahlecker could not sue the Ford and Firestone companies after a tire blowout left her stranded at the side of the road, where she was picked up and murdered by a stranger. Update Sept. 14: AAA case settles.
“Hacking-by-subpoena ruled illegal”
Fishing expeditionists, proceed at your own risk: “Issuing an egregiously overbroad subpoena for stored e-mail qualifies as a computer intrusion in violation of anti-hacking laws, a federal appeals court ruled Thursday, deciding a case in which a litigant in a civil matter subpoenaed every single piece of e-mail his courtroom adversary sent or received.” Judge Alex Kozinski of the Ninth Circuit wrote the opinion in the case, in which commercial litigant Alwyn Farey-Jones via his attorney, Iryna Kwasny, demanded emails from his opponent, a company named Integrated Capital Associates. (Kevin Poulsen, Security Focus, Aug. 29; opinion (PDF) courtesy IP Watchdog). The Federal Rules of Civil Procedure “impose on parties seeking discovery an obligation to ensure that their requests do not impose an ‘undue burden or expense.'” (Jeff Cooper, Aug. 29).
More: At Security Focus, Mark Rasch writes: “This decision, while motivated by a legitimate desire to protect privacy and force lawyers to obey the rules, nevertheless dramatically expands the meaning and intent of the computer crime in a way that could permit hundreds of thousands of people to be prosecuted” for such instances of “unauthorized use” or “trespass” as sending unauthorized emails or putting at-work computers to personal use. “Let’s get real. What the lawyers did was issue an overbroad subpoena. … The defendants in this case did not break into any computers — and saying that they did is bad for those who value liberty and prosecutorial restraint.” (“Forgive Me My Trespasses”, Sept. 8).
Compulsive gamblers not faring well against casinos
Although hope springs eternal among some trial lawyers and foes of legalized gambling that casinos might be made legally responsible for the losses of problem gamblers they negligently failed to eject from their premises, courts are still unwilling to see it that way, with three cases early this year all resulting in strong pro-casino opinions. (I. Nelson Rose, “Compulsive Gamblers Lose Again, In Court”, Jun. 2). Among them was the widely publicized case (see Sept. 12, 2002) of David Williams, who sued the Aztar casino for failing to exclude him although it had reason to know he was violating an order to stay away. U.S. District Judge John Tinder wrote that the case was barred by applicable precedent and added: “Whether this case is viewed as a claim for just compensation… or an effort to hit the jackpot in litigation that he couldn’t achieve on the river boat casino… through this lawsuit and a plethora of federal and state law theories, Williams seeks a determination that the gambling industry owed him a duty to protect him from himself. Despite his counsel’s creative efforts, and regardless of Williams’ sympathetic plight, neither federal nor Indiana law provides him any refuge or reward.” (“Compulsive gambler loses lawsuit against Casino Aztar”, Louisville Courier-Journal, reprinted CasinoMan, Mar. 7; “Problem gambler asks court to reverse ruling”, Las Vegas Review-Journal, May 14).
“Trial lawyers staying out of public eye on Prop. 12”
“Leaders of the Texas Trial Lawyers Association, aware of their negative image, made a deliberate decision to stay out of public view on a controversial ballot measure to cap lawsuit damages. … ‘This program that has been put together relies on non-lawyers bringing the message to the public. To make this program work we must vow to not communicate with the public media or in a public forum at all regarding the amendment election. NO LAWYERS — NO EXCEPTIONS,'” read an email describing a TTLA strategy meeting. Willie Chapman. spokesman for the trial lawyer group, “said the TTLA has known for a long time that many people believe trial lawyers have an economic self-interest in battles over lawsuit damages. ‘We know it’s best to have messengers like consumers, clients who have had cases, law professors and legal scholars,’ Chapman said.” “The memo outlines a secret plan to disguise management of the campaign against passage of Proposition 12,” charged Rossanna Salazar, spokeswoman for Yes on 12. (Janet Elliott, Houston Chronicle, Sept. 4). (& welcome Dean Esmay readers; one of the commenters there notes that someone may have forgotten to tell the members of the TTLA that they weren’t supposed to take an identifiable role in fighting the proposition, since a Yellow Pages check on the names of letter-writers blasting the measure in a San Antonio paper reveals a plenitude of them listed under “Attorneys at Law”).
Valued Senate employee
Baseball Crank (Aug. 27) links to a pro se employment lawsuit conducted in memorably abusive fashion (PDF) by an employee of the U.S. Senate Sergeant at Arms, which was finally thrown out of court Aug. 22 after years of litigation. And he wonders: how much of this sort of thing do federal managers have to deal with? We must part company from him, however, on his view that disabled-rights law, harassment law and the like are somehow brainstorms of the Democratic Party — all were crucially advanced by Republican presidents and judges, notably the senior Bush who was said to view the ADA as his proudest domestic achievement.
Texas’s Proposition 12
An intense campaign is under way in Texas over Proposition 12, which would amend the state constitution so as to give the Legislature authority to set limits on non-economic damages awarded to plaintiffs in civil lawsuits (vast assemblage of news links via Google News). It is being enthusiastically backed by the state’s medical community: YesOn12.org; Texas Medical Association; Texas Association of Family Physicians. Opposition: Save Texas Courts, TexansAgainstProp12.com, Texas Trial Lawyers Association. Opponents of the measure claim to fear the influence of “Big Money”, but — such a surprise! — have heavily out-fund-raised and out-spent the proposition’s supporters, with at least five law firms kicking in $250,000 each to the Save Texas Courts group (Houston Chronicle, Jul. 17, reprinted at National Constitution Center).
Curmudgeonly Clerk has a thorough roundup (Aug. 26), including the sentiments of major newspapers (the elite ones tend to be opposed, as usual) and weblog pointers. Kill As Few Patients As Possible (Sept. 2) and RangelMD (Aug. 20) also comment.
Remarkably, some opponents of the proposition have now carried out a sort of broad-daylight identity theft against the state’s best-known tort reform organization, Texans for Lawsuit Reform. Observing the domain name TexansforLawsuitReform.com up for grabs, they registered it as their own and put up a site exactly mimicking the actual TLR’s graphics and logo but then filling the rest of the page with boilerplate propaganda against the measure. The Austin Chronicle has more on the story (Lee Nichols, “Naked City”, Aug. 29). Kill as Few also comments (Sept. 4).
Addendum: BeldarBlog (Aug. 28) has an excellent analysis of the division-of-powers angle of Proposition 12 (should tort law remain exclusively the province of judge-made law, or is it legitimate for lawmakers to help shape its course?).
W. Va.’s judge-advocate?
High on the list of upcoming showdowns between the Chamber of Commerce and organized trial lawyerdom is the race for control of the West Virginia Supreme Court, which is considered to tip pro-plaintiff at present by a slender margin. Incumbent Justice Warren McGraw drew particular ire from the state’s business community when he “authored a 1999 decision that allows people who claim exposure to toxic chemicals to win huge sums of money for a lifetime of medical testing — without ever having to prove that they are sick.” “In a fund-raising letter sent out this spring, Wheeling lawyer Bob Fitzsimmons wrote, ‘Justice Warren McGraw has consistently advocated for the injured persons of our state.'” (Toby Coleman, “McGraw ahead in race, poll says”, Charleston Daily Mail, Aug. 28)(via Brian Peterson, who also (Aug. 28) wonders about that “advocated”). Update May 13: McGraw holds off challenge.