Overlawyered: Chronicling The High Cost Of Our Legal System

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Remember, “Judges are like umpires”

Last October, New York Yankee pitcher Cory Lidle’s plane crashed into an apartment building in Manhattan, killing Lidle and the flight instructor who was on board. The National Transportation Safety Board is investigating, but has not yet determined the cause of the crash or issued its final report (nor has it even been able to say definitively who was flying the plane). But New York dentist Larry Rosenthal knows who is at fault: he’s suing the estate of Lidle for $7 million, claiming that to be the value of his apartment and belongings destroyed when the plane hit his building. He has nowhere to live and is a “refugee,” although Rosenthal’s attorney allows that “It’s not as bad as someone in Katrina.”

There are probably no precedent-setting issues in the case, but we do get this amusing bit of legal analysis from his lawyer (New York Post):

“There’s no excuse for smacking a plane into an apartment building in the middle of Manhattan,” said the Rosenthals’ lawyer, David Jaroslawicz.

That’s not necessarily the case, though; last week, Lidle’s widow figured out an excuse: she filed a lawsuit of her own against the plane manufacturer and associated companies, claiming that some unknown design flaw in the plane caused the crash.

The plaintiff is no stranger to litigation; he is currently suing a former patient who he claims has defamed him on the internet. That defamation suit is based on claims on one of the two gripe sites set up by former patients: Baddentist.com and Lyingdentist.com, which contain many curious and colorful allegations. Smile!

Read On…

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Reading is fundamental

A man walks into a tattoo parlor (no, it isn’t the start of a joke) and asks for his favorite city to be put on his chest. Now the $250 order has become a lawsuit:

But the idea went terribly awry in a North Side tattoo parlor: He left with the word “CHI-TONW” inked into his skin where “CHI-TOWN” should have been.

Now Duplessis is suing the business and the tattoo artist for monetary damages in the 2005 mess after suffering what he says in his lawsuit was “emotional distress from public ridicule.”

At least he didn’t live in Albuquerque.

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Ralph de Toledano, Nader victim

A prominent and much-admired figure in conservative journalism for decades, Ralph de Toledano died last month at the age of 90. (Dave Zincavage, Feb. 6). The Washington Post in its obituary recounts a sequence of events that did much to darken de Toledano’s later years:

In 1975, consumer activist Ralph Nader filed a lawsuit against De Toledano in connection with a De Toledano suggestion — denied by Nader — that Nader had “falsified and distorted” evidence about the Corvair automobile. The case lingered in court for years and cost De Toledano his life savings. Paul Toledano [son of the author] said it was settled out of court.

(Joe Holley, “Ralph de Toledano, 90; author and ‘nonconformist conservative'”, Washington Post/L.A. Times, Feb. 10).

De Toledano in fact had published an entire critical biography of Nader, entitled Hit and Run: The Rise — and Fall? — of Ralph Nader, used copies of which remain available online — even Nader himself can’t prevent that. The entire episode — in which Mr. Litigation, then at the height of his public fame and influence, inflicted vindictive and personal financial ruin on a well-known journalist who’d had the temerity to criticize him — is one that you’d think would have provoked expressions of concern and solidarity from leading writers and civil libertarians of the day, and yet it didn’t (scroll to #8). The episode tends to get no mention these days in accounts of Nader’s life (which, whatever their varying opinions of his actions as a spoiler presidential candidate, tend toward cloying hagiography of his earlier career). And one consequence of its lingering chilling effect (who wants to volunteer to be the next de Toledano?) may be that no one will be willing to write another genuinely unsparing biography of Nader, at least for publication during the subject’s lifetime.

For a sampling of our posts about Nader, see Jun. 13, 2000; Feb. 22, 2004; and this set of 2000-2003 links.

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Search engines are not common carriers

The First Amendment and Section 230 of the Communications Decency Act protect search engines’ decisions about what content to carry; Google can’t be forced to run ads or “honestly” rank websites, according to a federal judge in Delaware. Eric Goldman has the details.

Goldman notes that this particular case, filed by a pro se litigant, was clearly frivolous, but the decision is still useful for Google, which, as the dominant player in the search engine game, faces suits elsewhere based on similar theories.

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Prince Charles v. McDonald’s

You don’t want to know how many calories are in one of HRH’s Cornish pasties. The authentic Cornish style of pasty always did seem heavy to me, as one raised on the Upper Peninsula Finnish kind. (Rebecca English and Sean Poulter, “The Royal pasty that’s unhealthier than a Big Mac”, Daily Mail (UK), Feb. 28; “Prince Charles says ban McDonald’s food”, AP/Seattle Post-Intelligencer, Feb. 28).

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More police liability lawsuits

  • Reader James Huff passes along this (Bloomington) Pantagraph story from last October of a lawsuit in Illinois over a police shooting of a driver after a car chase. The driver was drunk and had multiple drug convictions for which he was on probation at the time of the incident. The officer said he shot the driver when the driver tried to run him down. Of course, it’s Not About The Money:

    Dorris said Ruch’s parents, Jack and Margery Ruch, are more interested in details of the incident becoming public than collecting a financial settlement.

    “The thing the Ruch family wants the most is to search for the truth,” Dorris said. “If we have to try this case to get that, then it’ll be tried.”

    That didn’t stop them from requesting that the details of the settlement remain private, though. They later changed their mind after the local paper sued; they settled for $750,000.

  • Via Howard Bashman: on Monday, the Sixth Circuit reversed a lower court opinion finding the police liable when a drunk driver killed another driver. The court agreed that (treating the victim’s allegations as true) the police were incompetent, but incompetence does not create a violation of constitutional rights. (Whatever happened to “Don’t make a federal case out of it?”) The opinion is here (PDF).

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Trial lawyer’s macaca moment?

Michael Kinsley famously defined a “gaffe” as when a politician accidentally tells the truth. If so, plaintiff’s lawyer Anthony Buzbee committed an awfully big gaffe last year (caught on tape!), as Peter Lattman explains in the Wall Street Journal’s Law Blog (See also W$J). It’s an open secret that trial lawyers venue shop for the best possible jurisdiction to file a lawsuit, but they rarely describe it openly, particularly in stark racial terms:

“That venue probably adds about seventy-five percent to the value of the case,” he said. “You’ve got an injured Hispanic client, you’ve got a completely Hispanic jury, and you’ve got an Hispanic judge. All right. That’s how it is.”

In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing “here’s what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that’s the hurdle: Just prove that he wasn’t hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases.”

I guess tort reformers won’t get any debate from Buzbee when they describe places like Starr County as judicial hellholes (PDF).

Buzbee’s a trial lawyer, not a politician, so his reaction is entirely predictable: as per the Galveston County Daily News (and press release from Buzbee’s lawyers), Buzbee is suing the people who ran the seminar and those who allegedly taped him, claiming that he agreed to give his talk on the condition that it not be recorded, and further claiming that circulating the tape was done to “damage his career.” It seems to me that “The truth will damage my career” is perhaps not the smartest p.r. strategy, but I guess we’ll see how his suit goes.

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You can’t be too careful

No, literally: you can’t be too careful, or you may get in trouble.

In 2003, the Staten Island Ferry crashed into a pier at full speed, killing 11 people and injuring hundreds, because the pilot passed out; the pilot ultimately pled guilty to manslaughter. Victims and their families promptly sued New York City, which owns and operates the ferry. On paper, NYC had very tough safety rules, requiring two pilots to be in the pilothouse at all times, just in case; however, it turns out that this rule was not always followed.

On Monday, this abundance of caution came back to bite the city; a federal judge hearing the case held that the existence of these rules could actually be a factor in its liability (NYT):

The city had also argued that because its two-pilot rule was stricter than required by general negligence principles, the violation of the rule did not constitute negligence. In any case, the city said, individual crew members, not the city, were at fault.

But the judge, Edward R. Korman of United States District Court in Brooklyn, rejected those arguments. He wrote that by adopting the two-pilot rule, the city acknowledged a serious risk of accident if the pilot were incapacitated, and that knowledge of that risk required the city to remedy it.

In other words, the fact that at one point in time someone who worked for the city was extra-cautious actually works against the city; as soon as someone put down an idea about safety on paper, it became a minimum requirement rather than an option. (Trial lawyers already routinely use the existence of internal safety deliberations at a corporation as proof that a corporation knew about and ignored particular risks.) So what lesson do we send? Don’t adopt any rules beyond the absolute bare minimum; certainly, don’t put anything beyond this on paper.

(The judge naively pooh-poohed this risk, arguing that a “rational company” would be “far more concerned with actually preventing accidents than with gaming future negligence actions by carefully crafting its safety manual,” as if a company knew beforehand which accidents were “actually” going to happen.)

N.B.: I should clarify that the city may actually have been negligent in this particular instance; I’m critiquing the principle the judge espouses, rather than its application here.

Immunity – up to a point

Walter stole my thunder on the dismissal of the blog comment lawsuit against Lycos, but I thought it raised an important point. One of the common refrains of the Trial Lawyer crowd is that tort reform is not needed, because there are already mechanisms for the courts to deal with frivolous litigation, and because contingency fees mean that plaintiff’s lawyers have no incentive to take on meritless cases. The theory of tort reformers, on the other hand, is that the lottery nature of litigation means that plaintiff’s attorneys can take on long shot cases, because they only need to win a handful of “deep pockets” suits to come out ahead.

Which theory best explains lawsuits like this one? It’s difficult for Section 230 of the Communications Decency Act to be much clearer. It grants (as the First Circuit noted) “broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet.” This isn’t controversial; the First Circuit described its decision as “joining the other courts that have uniformly given effect to Section 230 in similar circumstances.” (Emphasis added.) So why would the plaintiffs not only sue on such a meritless theory, but actually appeal after losing in the District Court?

(I should note that I don’t have any specific evidence that this was a contingency case; nonetheless, the larger issue — namely, how can we successfully disincentivize plaintiffs and plaintiffs’ lawyers from bringing meritless suits — remains. Immunity from liability is great — but it isn’t the same as immunity from litigation. Lycos won this suit — twice — but how much did these victories cost?)

UPDATE: I had forgotten that the plaintiffs in this case, UCS and its CEO, Michael Zwebner, and their lawyer, John Faro, are no strangers to Overlawyered; they’re the same folks who sued Wolf Blitzer because of posts on Lycos’s message board from an anonymous poster who used the screen name Wolfblitzzer0. (See also updates on March 12, 2005; October 15, 2005).

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Update: $875K award to ejected slots player

We reported Jul. 25 and Aug. 4, 2003 on the case of Stella (or Estella; accounts vary) Romanski, who was banished from the Motor City Casino in Detroit after taking and playing a nickel from an unattended slot machine. The casino said it was enforcing a policy against “slot walking”, the practice of roaming unused machines in search of overlooked coins, but a jury awarded Romanski $875,000 in punitive damages. Reader F.L. now calls our attention to the record (PDF) of U.S. Supreme Court actions taken Oct. 2, 2006, which shows that the high court denied the writ of certiorari sought by the casino.

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