Class action roundup: tires, Western Union, jam

At the new multi-author blog Marginal Revolution, Alex Tabarrok writes that he’s angry: “The lawyers will get $19 million, the plaintiffs have no damages and I have been involved in an abuse of justice. I received notice yesterday that I was a plaintiff in a class action lawsuit against Bridgestone/Firestone that is about to be settled. I was never injured by Firestone but that’s ok because injured people have their own lawsuit the one I am involved in is for people who were not injured. The lawsuit reads ‘Plaintiff Does Not Seek To Represent And This Litigation Does Not Involve Any Person Who Alleges That He or She Suffered Any Personal Injury or Property Damage Because Of A Failure Of One Of The Tires’ (capitalization in original.) Bear in mind that Firestone has already replaced all four of my tires with a competitor’s brand for free and similarly for many of the other plaintiffs.” (Sept. 16) Co-blogger Tyler Cowen at the same site isn’t any happier to discover that he is a member of the class in a suit against Western Union over its wire-funds-abroad service charging that, according to the legalese, “…the Defendants [made] misrepresentations about or otherwise failing to disclose to customers the fact that they received a more favorable exchange rate for converting U.S. dollars to foreign currency and foreign currency to U.S. dollars than they provided to their customers.” “Imagine that” — writes Cowen — “a middleman buying and selling at different prices!” (Sept. 17). (More: see KrazyKiwi, Oct. 8).

Meanwhile, a Wisconsin man has filed an intended class action lawsuit against jam maker J.M. Smucker after the Washington-based anti-business group Center for Science in the Public Interest published a report claiming that Smucker’s “Simply 100 Percent Fruit” products were falsely labeled because only a minority of the actual contents of a jar of strawberry or blueberry “Spreadable Fruit” consisted of those berries, the remainder consisting (as Smucker’s labeling makes clear) of syrups, concentrates and extracts derived from other fruits such as apple, grape, lemon and pineapple. (“Smucker’s Spreads Not All Fruit, Lawsuit Says”, AP/FoxNews, Sept. 5 — if you’re looking for a deceptive claim, how about the one conveyed by that headline?). The food-industry-defense Center for Consumer Freedom levels an interesting accusation against CSPI, namely that bounty-hunting lawyers suing under California’s Proposition 65 law seemed to have mysterious psychic powers to divine in advance exactly what was going to be in a CSPI report on supposed killer french fries — either that, or CSPI shared the information with them before it went public with its allegations. See “We, the jury, find the defendant ‘starchy'”, CCF, Jul. 17 (third from last paragraph); “CSPI: 100 Percent Litigious”, CCF, Sept. 8; “Latest Acrylamide Panic Based on Fudged Numbers” (press release), CCF, Jul. 10. For more on the French fry suit, see Dec. 27-29, 2002.

Filed under: acrylamide, autos, class actions, French fries, product liability, Prop 65, Wisconsin

Monsanto vs. free speech

The giant chemical and agribusiness company is suing the Oakhurst Dairy in Maine “for promoting its products as containing milk from cows who are not treated with artificial growth hormones. Monsanto, which makes the leading artificial hormone for cows, said the marketing implies that there’s something wrong with milk from treated cows, even though studies show the milk is no different than milk from untreated cows.” (Edward D. Murphy, “On the front lines of free speech”, Portland Press Herald, Aug. 31; Kristen Philipkosky, “Sour Grapes over Milk Labeling”, Wired News, Sept. 16). As the Press-Herald’s Murphy suggests, this kind of suit can work very similarly to one like Nike v. Kasky in chilling controversial business speech, the difference being that in this case one business is doing it to another.

Filed under: advertising, agriculture and farming, competition through litigation, free speech

Scarborough unfair

Did you know that MSNBC talk host and former Republican Congressman Joe Scarborough is an attorney with Pensacola, Fla.’s Levin Papantonio, one of the nation’s premier mass tort firms, which has its fingers in everything from asbestos, breast implants and prescription drugs to aviation accidents to tobacco to Wall Street to environmentalist assaults on factory farming? Or that Scarborough continues on the firm’s payroll despite his on-air fame? We didn’t. Now Scarborough has gotten in a bit of trouble by inviting name partner Mike Papantonio to come on the show and attack “a wood-preserving company called Osmose, saying it makes a dangerous product used in playground equipment and has ‘figured out how to poison our children and make a profit in the meantime.'” — all without mentioning that Papantonio is his law partner and that his/their firm happens to be suing Osmose. (Howard Kurtz, “MSNBC Host Gets Bitten by His ‘Rat of the Week'”, Washington Post, Sept. 13; Doug Haller, “Joe-TV”, Pensacola News Journal, Sept. 14). Radley Balko and Arthur Silber comment. (Update Jan. 3: Scarborough ceases taking stipends from law firm).

How dangerous is “pressure-treated” (chemically preserved) wood, anyway? Once you get past the scare-headlines about arsenic on the playground, the National Law Journal noted in March that trial lawyers suing makers of the wood have enjoyed very limited success, one reason being that there is no particular illness that predictably results from routine exposure to chromated copper arsenate (CCA). Take care not to inhale gusts of sawdust or fumes from burning wood, and it seems you’re unlikely to have anything to worry about (David Hechler, “The Poisoned Wood Mystery”, National Law Journal, Mar. 20)

Filed under: environment, Florida, media bias, toxic torts

Update: easing the way for Mexican-American reparations

The California legislature, probably the nation’s busiest when it comes to stoking the fires of reparations litigation, has now passed and sent to Gov. Gray Davis a bill reopening the statute of limitations so as to allow state residents of Mexican descent to sue over forced deportations of their ancestors (or in a few long-lived cases themselves) during the 1930s. The intended targets of such litigation (see Jul. 28) include local governments and business groups that are said to have collaborated in the deportation campaigns. The legislature has already employed the tactic of reopening statutes of limitation in order to promote “claims for Holocaust victims insurance claims, Armenian Genocide victims, World War II slave labor and braceros”. (“Bill gives 1930s deportees until 2007 to seek damages”, San Francisco Chronicle, Sept. 12).

Filed under: reparations, statutes of limitations

Update: Nike settles speech case

Shoemaker Nike Inc. has settled a California activist’s lawsuit over its allegedly wrongful speech by agreeing to make a $1.5 million payment to a workplace monitoring organization (see Jul. 9 and links from there). (Bob Egelko, “Nike settles suit for $1.5 million”, San Francisco Chronicle, Sept. 13). “Any other company under attack from activists of any stripe — and there are so many of them — will have to think twice now about its efforts to tell its side of the story, at least in California.” (“Free speech loses a round” (editorial), The Oregonian, Sept. 13).

Filed under: advertising, California, free speech

“Slip ‘N Slide makers sue ‘Dickie Roberts'”

By reader acclaim: “The makers of the Slip ‘N Slide filed a lawsuit Monday over a scene in the hit movie ‘Dickie Roberts: Former Child Star’ that shows actor David Spade skidding to a painful halt on the summertime water toy. … In the movie, Spade jumps belly first on the yellow plastic sheet without first inflating it with air and water,” contrary to guidelines. “He then coats the slide with oil and crashes into a fence. … The company is concerned that the scene might prompt adults to imitate Spade’s action, which could lead to injury and lawsuits.” (CNN, Sep. 8; Ed Finn, “Can Wham-O Sue Over Dickie Roberts?”, Slate, Sept. 10).

Filed under: movies film and videos

“Grief does not justify greed”

A few more excerpts from Gregg Easterbrook’s devastating commentary of yesterday: “Now some 9/11 families are saying $1.6 million isn’t enough. Set aside whether they should be receiving anything from taxpayers, given the myriad other circumstances in which Americans die in various horrible events every bit as traumatic and devastating to their families, who receive nothing at all. Assume for the sake of argument that something about 9/11 justifies offering victims’ estates a very large special payment. Yet some 9/11 families are saying very large is not large enough. … If the families for whom $6.1 million is not enough persist in their avaricious desire to sue — and if the lawyers who would get shares of court awards, but get no shares of federal fund awards, persist in their ghoulish desire to encourage such suits–the country’s two largest airlines, and largest aircraft manufacturer, may fail. This will cause significant harm the United States. And it seems unlikely that the dying thoughts of the noble victims of 9/11 were, ‘I hope my survivors really screw the United States for money.'” (unnamed new Gregg Easterbrook weblog, The New Republic, Sept. 10). See also Apr. 1-2, 2002 (Roger Parloff); Nov. 21-22, 2001; John Lehmann, “Rush to file $uits”, New York Post, Sept. 11 (Lisa Beamer and other survivors suing airport screening equipment makers).

Filed under: airlines, September 11

“The terrorists have failed”

“[O]n Sept. 11, 2003, America may be a politically divided nation, but it is hardly a broken one. The terrorists have failed. The resolve of a people to eradicate those who attacked this country hasn’t wavered. Now, as then, the most heartbreaking aspect of Sept. 11 is the 3,000 people who are not here with us to observe it.” (Chicago Tribune (editorial), Sept. 11).

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).

Read On…

Filed under: antitrust, expert witnesses, junk science, medical, Michigan, procedure, Richard Posner

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).

Filed under: compulsive gambling, gambling, Indiana, personal responsibility