Nina Kay MacDermid was bipolar and suffered from drug and alcohol problems. Discover Financial Services did not know this when she successfully obtained a card in her husband’s name and charged $15,000 worth of exotic cats and computer products and other shopping, despite her husband having forbidden her from having credit cards because of her previous manic spending sprees that sent her into personal bankruptcy. MacDermid also obtained cards from American Express and others, but it was checks from Discover that her husband intercepted and confronted her over on February 14, 2003. Ms. MacDermid overdosed on drugs, and was admitted to the hospital for five days that week, but later managed to commit suicide in June, which Mr. MacDermid claims in his lawsuit was a surprise. Mr. MacDermid complained to Discover in March that he had not authorized the card, but sued Discover, claiming that Discover’s resulting attempts to collect on Ms. MacDermid’s debts from the cancelled card was what actually drove her to suicide. (A psychiatrist conveniently submitted an affidavit that MacDermid would have been peachy keen if not for Discover’s actions, notwithstanding her substantial history of mental illness.) A magistrate judge dismissed the case under 12(b)(6), but the Sixth Circuit, in an opinion by Judge Boyce Martin, resuscitated it on a theory that Discover’s allegations of criminal violations may have been an intentional infliction of emotional distress. The opinion does not cite this month’s Twombly decision, which perhaps explains the wild save of the almost-surely doomed case, and Discover will now have to spend additional money defending it—which is why your credit-card interest rates are so high. (MacDermid v. Discover Financial Services (6th Cir. May 29, 2007) (via Bashman)). The opinion contains a variety of gratuitous slams at Discover for being a victim of MacDermid’s fraud.
Archive for the ‘Uncategorized’ Category
A Milberg medical miracle
Here’s a free tip for trial lawyers out there: if you’re going to engage hired-gun experts witness to tell the court what you need it to hear, make sure you first tell the experts what you need the court to hear.
We’ve been covering the ongoing scandal in which class action law firm Milberg Weiss is accused of paying kickbacks to its clients in class action lawsuits (see, e.g. May 2006 and links from there). In addition to the firm, prosecutors have been going after the clients who accepted kickbacks (Feb. 2007, Jun. 2005). One of those clients, Seymour Lazar, has been trying to escape prosecution by claiming to be ill, trotting out doctors to testify to a “litany of ailments,” including “heart disease, stroke, cancer, diabetes, and gout.” But there’s more: he also claimed to be suffering from a “mental condition [that] could make following significant events of the trial impossible,” as well as “major depression, memory loss, and fatigue.” And, he’s mentally incompetent.
That was two weeks ago… Now he’s all better. Turns out that if he were mentally incompetent, the prosecution could lock him up for up to four months to determine whether he would become competent in the future. Whoops! That wasn’t what defense attorneys wanted. So they had to repudiate their own expert’s testimony:
A psychologist who testified that a defendant was not competent to stand trial in a federal criminal case against a leading class action law firm now says that assertion was mistaken.
[…]
“I believe that I testified in error when I stated that he is not competent,” the psychologist retained by the defense, William Jones, wrote in a declaration filed Monday in federal court in Los Angeles.
Yes, or maybe, like the Monty Python peasant who claimed to have been turned into a newt, Lazar mysteriously “got better.”
If you can’t compete, sue ’em dept.: Carl’s Jr. v. Jack in the Box
Jack in the Box is known for its humorous ads, but Carl’s Jr. is upset about an ad for Jack’s sirloin burger that makes fun of competitors’ Angus burgers. (Sirloin is a cut of meat, while Angus is a type of cow; the joke is, well, see the commercial.) So Carl’s is suing on grounds of “deceptive advertising.” (Alana Samuels, “Carl’s Jr. has a beef with Jack in the Box advertising”, LA Times, May 26).
So you want to be in pictures
Did you ever watch a movie and think, “I could have made that movie”? Well, if actually making the movie proves to be too difficult, here’s an alternative strategy: you could just write to the Internet Movie Database and demand that they give you credit for having produced it. But, unfortunately for those of you who like to take shortcuts, it turns out that IMDB has this silly policy of only crediting people for their work on a movie when those people appear in the movie credits.
So, there’s always Plan B: sue IMDB. That’s what David Kronemyer did. He wanted to be credited as executive producer of hit movie My Big Fat Greek Wedding, B-movie Wishcraft, and TV-movie Stand and Be Counted. (I’m ashamed to admit that I’ve actually seen Wishcraft; I think the people who should sue are the ones who did get blame credit for making it.)
Fortunately, this story had a reasonably happy ending: Kronemyer was sanctioned by the California judge hearing the case for bringing a SLAPP suit, and ordered to pay $6,270 to the IMDB to compensate it for attorney’s fees. (Although, as Shaun Martin notes, that probably doesn’t fully compensate the IMDB.) The fact that Kronemyer had virtually no evidence to support his demands presumably didn’t help his case; he had a document showing that at one time he might have been involved with My Big Fat Greek Wedding, and nothing at all for the other two movies. But this complete lack of evidence didn’t seem to deter Kronemyer; he actually appealed the lower court’s dismissal of his lawsuit. The court of appeals wasn’t impressed (PDF).
Kronemyer represented himself, so it might seem unfair to blame lawyers for this one — except that Kronemyer’s a lawyer himself. Well, sort of; he actually resigned from the bar with unspecified disciplinary charges pending.
May 22 roundup
- Class action lawyer on the divvying up of $6.9M of attorneys fees among 79 attorneys: “There were two firms that . . . we generously gave a substantial award that really didn’t do anything for the common benefit.” But the award is still under seal; the Fifth Circuit is now considering. WSJ: “Unsealing the records would be a good first step, but Mr. Barrett’s statements suggest that the juiciest story is not how the money was divided among the lawyers, but how 79 lawyers extracted nearly twice as much from the defendant for themselves than they won for their 81,000 clients. Just another day at the office for the tort bar.” We reported Apr. 9. [W$J]
- Street vendor sign of “180-degree coffee” reminds professor that McDonald’s coffee isn’t all that relatively hot. [Childs]
- Briefing from the Pearson pants case (Apr. 26, etc.). [On Point]
- FDA scandal! Or is it? Is it really the case, as some claim, that safety is never too expensive? [Point of Law]
- Trial lawyers and Jay Angoff, at it again, incredibly accusing a non-profit mutual med-mal insurer of gouging. [RiskProf]
- “Treating patients is a lot harder for this physician—and much less fun—in a climate of fingerpointing.” [Medical Economics via Kevin MD]
- Are abuse victims squandering their moral authority? [Commonweal]
Non-KFC “Family Feast” still OK
U.K.: Fast-food giant Kentucky Fried Chicken has backed off its attempt to browbeat the proprietress of the Tan Hill Inn in North Yorkshire into no longer billing her traditional Christmas dinner as a “Family Feast”. In a letter from its lawyers, Freshfields, KFC had claimed trademark ownership of the phrase. (Will Pavia, “Fast food giant is licked in battle with pub”, Times Online, May 11; Weigel, Reason “Hit and Run”, May 10).
“Free expression gets smoked”
Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded “the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience.” But state governments “have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume’s next novel. …The MPAA’s response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control.” (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.
Update: Pizza Hut door victim awarded $311K
Following up on our Mar. 13 and Apr. 25 coverage: “Madison County Circuit Judge Nicholas Byron awarded Amanda Verett a $311,700 default judgment for injuries she allegedly received while holding a Pizza Hut door open for a Troy police officer.” Verett obtained the default judgment against defendant Clarence Jackson; co-defendant Pizza Hut filed a defense, so it will presumably be entitled to face a trial separately. Verett says her shoulder was jarred when Jackson suddenly moved the door or allowed it to move. According to testimony from her husband, she also slipped and fell on ice and snow on her driveway four days later; the couple appear to blame her injuries from that fall on her earlier bad experience with the Pizza Hut door. It’s a small world, lawsuit-wise, in the far-famed Illinois county: the chiropractor who’s been treating Verett, Mark Eavenson of Granite City, “is best-known as the most prolific filer of class action lawsuits in Madison County”. (Steve Gonzalez, “Byron awards $311,700 to Pizza Hut door victim”, Madison County Record, May 16).
The frivolous side of Funny Cide
Peter Lattman reported on Gary Farmer, a Florida judge who decided to try his hand at humorous legal writing in the course of deciding a lawsuit. Discussion of the opinion around the internet (see, e.g., Orin Kerr) focused on the propriety of a judge turning his job into a forum for self-promotion. Regardless of whether judges are allowed to have fun with their work, in my opinion, it wasn’t very funny at all. But perhaps I had lost my sense of humor after reading the ridiculous nature of the lawsuit.
The case was brought by the owners of the championship racehorse Funny Cide against the publishers of the Miami Herald, for a newspaper report that the horse’s jockey had used an illegal device to help him win the Kentucky Derby. The report was false, and the paper ran a correction. But that wasn’t good enough for the owners of Funny Cide; they sued in May 2005.
Their complaint? Although Funny Cide won the Preakness, the false report caused the horse to lose the Belmont Stakes, and hence miss out on the Triple Crown, which would have been worth large sums of money.
Their theory? Funny Cide’s jockey was so motivated to disprove the false report that he worked the horse too hard in the Preakness, which tired the horse out so it couldn’t win the Belmont three weeks later.
As you can imagine, this theory is (to use the technical legal term) loony. Even if they had a snowball’s chance of proving causation — as if there were no other possible reason a horse might lose a race? — they would also have to show that it was foreseeable by the Herald that their report would cause this to happen. This they obviously could not do, and so the court granted summary judgment to the newspaper. What makes this case especially egregious, though, is that the humorous opinion being discussed above wasn’t written by the trial court; Gary Farmer is an appellate judge. That’s correct: the horse’s owners appealed the dismissal of their frivolous lawsuit.
In case you were wondering, Bruce Rogow was listed as one of the attorneys for the horse’s owners.
Mr. Rogow has taught Civil Procedure, Federal Jurisdiction, Constitutional Law, Appellate Practice, Criminal Law and Legal Ethics.
If your first frivolous suit doesn’t succeed, sue Burger King on the same theory
The misnamed Center for Science in the Public Interest, fresh from their loss earlier this month against KFC (May 3), has sued Burger King on the same theory that the legal act of selling foods that contain trans-fats is actionable. (Burger King discloses trans-fat content on its website, so any claim of failure to warn is patently false.) CSPI’s Stephen Gardner self-servingly writes about the suit on the Public Citizen blog without once mentioning the earlier slapdown, much less the fact that the reason trans-fats are so prevalent in the American diet today is that CSPI and its ilk worked so hard to persuade people to use trans-fats instead of saturated fats in the 1980s through similar tactics. CSPI should be suing itself. The question is why courts condone the misuse of the legal system to act as a public-relations device.