June 9-11 — “Look for the Kiwi label”. Our editor’s newest Reason column takes a skeptical look at the “anti-sweatshop” movement, which is quickly acquiring a large litigation component along with its substantial campus-activist presence. Also takes up the curious question of why Notre Dame, at the behest of its anti-sweatshop working group, banned the manufacture of its licensed products in New Zealand, not exactly known as a hellhole of oppressive industrial employment. (July).
June 9-11 — Risky? Who’da thunk it? A jury last month awarded $111.5 million, which will reach $164 million with interest, to a wealthy horse breeder and Bahamas resident who bought on margin $6.5 billion in foreign currency futures through Bear Stearns and sued the investment firm after sustaining severe losses. The jury found Bear Stearns negligent in not keeping client Henryk de Kwiatkowski, 76, on a shorter leash and not warning him more carefully about the risks. Bear argued that de Kwiatkowski was a sophisticated client eager to gamble who’d sustained $100 million currency speculation losses on two previous occasions. The judgment would amount to almost a quarter of the firm’s profits last year. (Colleen DeBaise, “Investor Awarded $111.5 Million In Trading Case Against Bear Stearns”, DowJones.com, May 16; “Bear Stearns Must Pay Added $52.5 Million To Investor Who Sued”, DowJones.com, Jun. 7). de Kwiatkowski said he’d been led astray by relying on the expressed bullishness about the dollar’s prospects of Bear economist Wayne Angell, a former federal reserve governor; instead the dollar sank. According to Bloomberg News, Bear chief executive James Cayne, on the stand, countered that economists are right only 35 percent to 40 percent of the time — “They don’t really have a good record as far as predicting the future” — and that the role of the firm’s economist was in his view “entertainment”. (“Bear Stearns economist painted as entertainer; judge doesn’t buy it”, Bloomberg/St. Paul Pioneer Planet, June 3) (see also Dec. 6).
June 9-11 — Don’t cooperate. In Fairfield Center, Maine, attorneys representing 19 people claiming injury from the toxic effects of papermaking wastes are advising their clients not to cooperate with a public health survey intended to assess residents’ health concerns, because the results might be used against their cause. The 19 are suing Kimberly-Clark Corp. and Sappi Fine Paper North America. (Doug Harlow, “Attorneys fight local health poll”, CentralMaine.com (Kennebec Journal/Waterville Morning Sentinel), May 10).
June 9-11 — Have some coffee. “Attorney Arnold Levine — known for his in-your-face style that clearly some take literally — has sued opposing counsel Jonathan Alpert, charging Alpert threw a [lukewarm] cup of coffee at Levine” during a recent mediation session. “Alpert said the allegation is not accurate, and called Levine’s lawsuit ‘a stunt.'” Levine is representing the Tampa Bay Buccaneers in the lawsuit, in which Alpert is suing “on behalf of season ticket holders who believe they were shortchanged by the football team”. (AP/Miami Herald, “Lawyer drenches foe with coffee; grounds for another suit”, Jun. 7).
June 9-11 — Jeff MacNelly, RIP. The nation’s finest political cartoonist has succumbed to lymphoma at age 52. He continued to turn out terrific work until very nearly the end, as with the Microsoft-themed entries of April 4, April 27, and May 5. (Richmond Times-Dispatch, Chicago Tribune obits; MacNelly.com).
June 9-11 — Customer offense. The Michigan Court of Appeals is considering a disability-rights claim by supermarket bagger Karl Petzold, who has Tourette’s Syndrome and was dismissed by the Farmer Jack chain after his coprolalia (involuntary utterance of obscenities and racial slurs) offended blacks and women who were present. The store believes Petzold’s utterances might subject it to liability under fast-spreading “customer hostile environment” doctrines. (“Court to decide if bagger is disabled”, Detroit News, May 1).
June 8 — Judge cracks wish bone. Microsoft’s refusal to agree that it had done anything wrong helped seal its fate. (Final Judgment, at DoJ site; Lisa M. Bowman, “Judge: Break Microsoft in two”, ZDNet News, June 7; ZDNet roundup; Reason “Breaking Issues“).
June 8 — Latest wrongful-birth case. Last month (May 9) we reported on a Phoenix trial where Mom was suing doctors for the cost of raising her unwanted son because they hadn’t identified her pregnancy fast enough for her to have a convenient abortion. Yesterday’s Boston Globe reports on a case from suburban Revere in which Jennifer Mosher is suing her obstetrician over a sterilization effort that fell short, leaving her with a healthy but unwanted toddler named Samantha; she’s now suing for the cost of raising the child, including tuition at a private college. (Raja Mishra, “Malpractice suit weighs Revere girl’s worth”, June 7).
June 8 — From our mail sack: poetry corner. Reader Paul W. Green of the East Valley Tribune in Mesa, Arizona writes to say that Smith & Wesson’s recent “settlement of” (capitulation to) the siege of its business by lawyers sent him back to reread Rudyard Kipling’s poem “Dane-geld“, inspiring him to pen this updated version which he entitles “Lawyer-loot”.
It is currently a temptation for those skilled in litigation
To address a certain industry and shout:
“Your products are much hated and have been at length berated;
Unless you settle, we shall clean you out!”
And that is called demanding lawyer-loot,
And the creatures that seek it will swear,
That you’ve only to pay ’em the lawyer-loot,
And from suits they will henceforth forbear.
It is currently a temptation for those slapped with litigation
To back off and decline to take a stand:
“Though you are not in the right, it would cost too much to fight.
We will therefore settle for what you demand.”
And that is called paying the lawyer-loot,
But the unvarnished fact must be faced,
That once you agree to pay lawyer-loot,
You won’t see the end of the case.
For litigious devolution is a covert revolution,
To make supreme the power of the bar.
So when they file a suit and seek obscene amounts of loot,
To respond thus is the better course by far:
“We reject your extortion of lawyer-loot,
You dapper-clad robbers of cash,
We’ll deny you your stake as the people awake,
And they soon will settle — your hash!”
June 8 — Bulletin board discussions. Participants on the Anandtech Forums are currently discussing the Massachusetts golf club case mentioned here yesterday. A few of the other bulletin board mentions this site has had lately: Motley Fool, Professional Pilots Rumour Network, Free Republic, BladeForums.
June 8 — “Dear Dr. Laura…” “Dr. Laura is a talk show host. She knows a great deal about God’s will, so one listener wrote in for some advice: …’I have a neighbor who insists on working on the Sabbath. Exodus 35:2 clearly states he should be put to death. Am I morally obligated to kill him myself?'” (author unknown, reprinted at AndrewTobias.com).
June 7 — Update: Massachusetts golf club case. Last fall a Boston jury returned a whopping $1.9 million judgment in a sex discrimination case brought by discontented women who said the Haverhill Golf and Country Club wasn’t allowing them prime tee times, full memberships, and other privileges (see October 30-31). Presiding judge John C. Cratsley, among other dictates, mandated that the members of the club’s board enroll in six hours of gender-sensitivity training. Now the atmosphere at the club is icy in the extreme, with both the litigants and their husbands shunned as fairway partners. “We thought [the lawsuit] would make it better,” says one of the women who sued. “But it made the atmosphere worse.” Was this really supposed to have come as a surprise? (Lynn Rosellini, “‘Those women’ vs. the ‘Neanderthals'”, U.S. News & World Report, June 12).
June 7 — Dangers of linking. “Linking is getting dangerous, as I’ve learned firsthand. In March, I wrote an article called ‘What Cyber Patrol doesn’t want you to see’ about a program that reveals the zany secret blacklist of off-limits websites maintained by Cyber Patrol, a blocking program sold by toy-maker Mattel. Cyber Patrol doesn’t just block porn: student organizations at Carnegie Mellon University and Usenet discussions such as alt.journalism, soc.feminism, and, inexplicably, fj.rec.food, were also verboten. In my article, I linked to the blacklist-viewing program, and quickly found out that Mattel didn’t like being criticized. In response I received a copy of a temporary restraining order and a subpoena from Mattel telling me I had violated U.S. copyright laws.” (Declan McCullagh, “Who’s Next?”, The New Republic Online, May 23; and see Eric J. Sinrod, Jeffery W. Reyna and Barak D. Jolish, “Linking Down the Wrong Path”, Upside, Jan. 18). Plus: commentary on Dialectizer case (see May 18-21) (Julia Lipman, “The big price of having a little fun on the Web”, Boston.com digitalMass, May 24).
June 7 — “Foreman Who Slept on Job Wins Reinstatement”. “Douglas County District Judge Gerald Moran has ruled that John Hauschild should get his job back because the city did not properly disclose the evidence against him before a pre-termination hearing. Hauschild was fired last June [from his job as foreman at the city of Omaha’s wastewater treatment plant] after being caught taking naps at work by a tiny camera that was secretly installed in his computer. In 15 days, the city alleged, the camera caught him sleeping during part of every day.” Hauschild appealed the firing to the city’s personnel board, saying he had a sleeping disorder, and then to court when he lost before the board. (Angie Brunkow, Omaha World-Herald, June 6).
June 7 — Sooner get rich. Oklahoma isn’t an especially big state, but lawyers who represented it in the multistate tobacco litigation are set to waltz off with a remarkable $250 million fee award, not an unsubstantial sum alongside the estimated $2 billion that the state itself expects eventually to receive under the national settlement. The lawyers argued to the arbitration panel that their efforts on behalf of the Sooner State were really distinctive, really unusual, really productive, and so forth. Six national law firms, including the much-fee’d Mississippi firm of Richard Scruggs which also represented many other states, will share the bounty with four local firms: Riggs, Abbey, Neal, Turpen, Orbison & Lewis of Tulsa and Oklahoma City; John Norman and Associates of Oklahoma City; Pray Walker Jackson Williamson & Marlar of Tulsa; and Preston Trimble of Norman. (“Tobacco Settlement: Four state-based law firms share in $250 million award”, Tulsa World, May 18; Aileen Gallagher, “Oklahoma Tobacco Lawyers Earn $250 Million”, American Lawyer Media, May 18).
June 7 — Welcome Montreal Gazette readers. Doug Camilli’s column, June 5, mentioned our recent deer item from Texas.
June 6 — Sudden deceleration. Score another sharp setback for the notion, still dear to some trial lawyers and TV newsmagazines, that cars experience “sudden acceleration”, taking off on their own though their owners are pressing hard on the brakes. The National Highway Traffic Safety Administration has flatly denied a request that it reopen a probe of such reports, and the stinging language of its recent 34-page memo to that effect, prepared by its Office of Defects Investigation, raises the question of why the American legal system continues to generate unending litigation against carmakers on a theory that by now evokes barely concealed derision from the government’s own safety experts.
In 1986, sales of the Audi 5000 collapsed after CBS “60 Minutes” aired a sensational show charging the German-made car with sudden acceleration. In that case, as in those that came later, studies by NHTSA and by safety agencies in other countries found no defect in the car and instead assigned the blame to “pedal misapplication” — put more plainly, drivers’ tendency to hit the gas pedal when they think they’re hitting the brake. Theories that seek to blame mechanical defects for sudden acceleration face the difficulty of positing that something has gone wrong simultaneously with a car’s brake system as well as its power (since regular foot pressure on the brake can readily overpower a gas pedal stuck at full throttle) while in both cases leaving no trace behind of a distinctive “failure state” for later investigators to discover.
But alarmism over the issue simply will not die — not so long as expert witnesses hired by trial lawyers keep developing new theories to take to juries. In February of last year a segment on NBC’s “Dateline” gave extensive, highly sympathetic coverage to the contentions of a plaintiff’s expert named Sam Sero, who blames sudden acceleration on malfunctions in the electronics in cars’ cruise control systems. A few months later Little Rock, Ark. attorney Sandy S. McMath, representing plaintiffs in a sudden acceleration case against Ford, filed the petition with NHTSA asking that it take another look at the phenomenon in light of Sero’s theories.
Bad move. In its response to the petition, NHTSA could hardly have been more scathing. The proponents of the theory, it said, “have never produced credible evidence” that it has led to a single incident of sudden acceleration. “The theory propounded by Mr. Sero, and others, has never been published nor is there any literature in the automotive engineering field supporting it”. The evidence for the pedal misapplication finding remains “compelling”. In an unusual swipe at Mr. Sero, a licensed electrical engineer formerly with the Allegheny Power Company, the agency said he “has no professional experience in the auto industry and no human factors training”. McMath, the lawyer who petitioned for the probe, admits being stunned by the vigor of the agency’s response.
You’d think “Dateline”, of all programs, would tread gingerly in cases where there’s a danger it might get sold a bill of goods on issues of auto safety (our take on the “exploding GM truck” scandal: Washington Post, National Review). But aside from the embarrassment of having lent its credibility to sudden acceleration alarmism, the network perpetrated a specific additional unfairness that deserves to be noted for the record. At the time “Dateline” produced its segment, a sudden-acceleration case called Manigault v. Ford Motor Co. was working its way through the Ohio courts, and going very badly indeed for Ford: Cuyahoga County Common Pleas Judge Anthony O. Calabrese Jr. had just issued — as “Dateline” described it — “a blistering ruling, saying Ford had ‘perpetrated a fraud upon the court’ and may have ‘misled the government.’ ‘In ordering a new trial,’ he wrote: ‘it seems certain, that further death and injury is likely to occur unless and until the truth about the causes of sudden acceleration events becomes public knowledge.'”
Strong stuff, and hugely damaging to Ford’s public image, which is why the automaker must have cast a sigh of relief when in June, four months after NBC aired its show, an appeals court in a 24-page opinion completely reversed Judge Calabrese, ruling that Ford had adequately informed the court of what it knew on sudden acceleration. No “fraud on the court”, no “certain[ty] that further death and injury is likely to occur”, no new trial, no nothing.
At this point NBC could still argue plausibly that it hadn’t erred by giving such dramatic play to Judge Calabrese’s findings against the carmaker; a ruling may later be overturned on appeal, but that doesn’t mean it wasn’t newsworthy when it happened. But the least a network could do in those circumstances would be to let its viewers know that the ruling was overturned — right? Since Ford’s victory on appeal in Manigault, company spokesman Jim Cain says the automaker has repeatedly asked “Dateline” to run an update informing viewers of the appeals court’s having thrown out the earlier, “blistering” ruling charging it with fraudulent concealment of safety hazards. Nearly a year later, Cain says the show has run not one word to correct or update viewers’ misimpressions. Meanwhile, MSNBC’s website continues to run the original “Dateline” story, again with nary a hint of a correction or update. (Harry Stoffer, “NHTSA: No sudden-acceleration probe”, Automotive News, May 15; “Vehicles that take off on their own?”, NBC News/MSNBC, Feb. 10, 1999; “Appeals court rules in favor of Ford in cruise control suit”, AP/Auto.com, Jun. 21, 1999; Ford protest letter to NBC before broadcast of its show, reprinted at Brill’s Content site; NHTSA report, issued April 6 under File # DP99-004 and published in Federal Register Apr. 28). Update Dec. 30, 2002: Ohio Supreme Court orders new trial. (DURABLE LINK)
June 6 — Predestination made him do it. “The man who is serving a life sentence for the shooting of Pope John Paul II is requesting clemency, following the Pope’s revelation that the third secret of Fatima was a prophetic vision of his assassination attempt. Mehmet Ali Agca argues that since his crime was “preordained,” he should be absolved of all responsibility.” Experts in both canon law and Italian criminal law are skeptical about the 43-year-old Turk’s claim. (Marina Jimenez, “Assailant asks Pope’s clemency, cites Fatima”, National Post (Canada)/Reuters, May 30).
June 5 — Sunday’s Times on Fred Baron. New York Times reporter Barry Meier profiles the Association of Trial Lawyers of America’s incoming president, whose career “has mirrored the transition of many trial lawyers from scrappy advocates for workers and consumers to wealthy businessmen eager to influence policies and politics.” A leading Gore fundraiser, “Mr. Baron, who was also a major contributor to President Clinton, plays golf with the president and dines several times a year at the White House,” as well as hosting a big annual bash for the Democratic National Committee at his second home in Aspen, Colo. But he “remains haunted” by the disclosure of the now-celebrated secret memo advising Baron & Budd clients what to remember and what not to about their exposure to asbestos; the piece quotes this site’s editor who says that for ATLA to elect Mr. Baron president given the ethical questions raised by the coaching memo “suggests a boldness on their part or an imperviousness to public criticism” (but the Times misspells our editor’s name– ouch). Mr. Baron has “struck back at his accusers with zeal,” using legal charges and the threat thereof as part of his armory. “To defend himself he has hired legal troubleshooters like Abbe Lowell, the chief investigative counsel for the Democrats on the House Judiciary Committee during the impeachment proceedings against President Clinton.” (Barry Meier, “Fund-Raiser May Be Achilles’ Heel for Gore”, June 4 (online version bears the date June 3)). For our account of the memo episode, see “Thanks for the Memories”, Reason, June 1998; also see August 1998 coverage in the alt-weekly Dallas Observer, “Toxic Justice” and “The Control Freak“, the sidebar, “Hey, No Coaching”, to another Baron profile, Alison Frankel, “Traitor to his Class”, American Lawyer, January 6; and our March 23 commentary and links there.
June 5 — Jarring discord. The Audubon String Quartet is in the throes of a messy public divorce that began in February when three members of the chamber music ensemble sought to oust the fourth for undisclosed reasons. A judge issued a temporary order that first violinist David Ehrlich be readmitted pending further consideration of his claim that the dismissal violated his rights; the other three say he was an employee at will and that it’s crucial that a string quartet be permitted freedom of association given the intimacy with which it must operate. The high point of unpleasantness so far came with a motion by Ehrlich’s attorney that cellist Tom Shaw, violist Doris Lederer and second violinist Akemi Takayama be “fined and imprisoned” for allegedly flouting a court order prohibiting them from playing previously scheduled engagements without him. As the dispute grinds on Virginia Tech in Blacksburg, Va., where the ensemble has been in residence for 15 years, has severed its ties to the group. (Roanoke Times coverage March 22 and other coverage (fee-based archive)). Updates June 14, 2001: new rounds of litigation in the case alarm musical community; Nov. 13, 2001: judge awards Ehrlich more than $600,000 in damages.
June 5 — Year’s most injudicious judges. National Law Journal‘s third annual compendium of bad bench behavior includes 10 judges stripped of their robes after such doings as racial and ethnic slurs, emailing off-color material including a video clip of naked skydivers, reducing all fines to a token $1 in order to punish town officials for not picking up the judge’s health insurance, and switching price tags in a store. Also includes the sad sagas of the New Hampshire Supreme Court’s Stephen Thayer (see April 5) and Washington state’s Grant L. Anderson (see January 19). (Gail Diane Cox, “How Could They Do It?”, April 26).
June 5 — Unwanted medical duties. Teachers and school officials are upset that special-ed laws are being interpreted to require them to perform intimate nursing tasks such as tube-feeding, mucus-clearing and colostomy-bag-emptying as part of disabled students’ right to classroom accommodation. “More than 500 staff members and every bus driver in the 28,000-student Loudoun County, Va., district recently learned to administer glucose injections after [a diabetic] girl’s family won that right through the U.S. Department of Education’s Office for Civil Rights (OCR).” “The NEA and the American Federation of Teachers, the two largest teachers unions, strongly oppose teachers tending to student health needs. ‘They’re fearful they will hurt a child by doing something incorrectly or be held personally liable,’ [the NEA’s Dennis] Friel says. ‘They feel they are being asked to do things they didn’t think would be part of their career selection.'” (Linda Temple, “Disputed duties: Teaching the disabled”, USA Today, Feb. 15).
June 2-4 — “More lawyers than we really need”? As lawyers descend on the town of Walkerton, Ontario, in anticipation of the chance to sue over a deadly E. coli outbreak, Ralph Pohlman in today’s (June 2) Toronto Sun gets a queasy feeling about the way things are headed with the profession, and recommends reading this website to “feel a whole lot better” (link likely to disappear soon).
June 2-4 — “Victim of the century”? The Washington Post reports that the state of Virginia lost a nearly 10-year battle over disability payments with Anthony M. Rizzo, Jr., a former high school principal in Fairfax, “who contends that he has a permanent ‘psychosexual disorder’ that makes him unable to supervise women without trying to coerce them into having sex with him. He sought disability benefits after he was fired in 1989 from his job as principal of Edison High School for sexually harassing female teachers.” Two juries have hung so far on rape allegations against Rizzo, who declines psychiatric evaluation related to the disability claim because of the ongoing criminal proceedings. State officials initially denied his application for benefits on the grounds that the disability program should not reward “reprehensible” behavior, but “lost on a technicality in 1998 when the state Supreme Court said they missed a deadline for making a decision on his claim.” More recently they cited his refusal to cooperate with psychiatric evaluation as reason to cut off his benefits, but he’s now sued to get the payments reinstated. (Patricia Davis, “DNA Tested in Sex Abuse Case Against Ex-Fairfax Principal”, Washington Post, May 31; Timothy Noah, “Victim of the Century”, Slate, May 31).
June 2-4 — Another Mr. Civility nominee. Wall Street Journal news side recently profiled husband-and-wife litigators Stanley and Susan Rosenblatt, currently angling for punitive damages in a much-publicized tobacco trial in which they purportedly represent the class of all sick Florida smokers (see July 8, 1999), and before that best-known for settling a class action against tobacco companies on behalf of flight attendants in a deal that “has yet to yield any tangible benefits for the Rosenblatts’ clients, while netting the Rosenblatts $49 million in fees and expenses” (see Sept. 28, 1999). “After the fee was received, one associate who had worked for the Rosenblatts for 13 years asked for a bonus. She was abruptly fired and has hired a lawyer to sue the Rosenblatts, who have been quietly negotiating a severance package while preparing for the punitive phase of their tobacco case.” A prominent figure in pro-litigation circles, Alan Morrison of Public Citizen Litigation Center, intervened trying to block the settlement of the flight attendant case. “‘You are scum. You are absolute scum. You are dreck,’ Mr. Rosenblatt told Mr. Morrison before the start of a court hearing over the deal’s fairness, according to Mr. Morrison.” Mr. Morrison now forgivingly calls Rosenblatt “a fabulous thorn in the side of the tobacco industry” and says “His methods are different from mine, but I probably wouldn’t have gotten anywhere near as [far as] he’s gotten”. (Milo Geyelin, “Suing Tobacco, Florida Firm Takes Own Path”, Wall Street Journal, May 15, fee-based archive).
June 2-4 — The forbidden cookout. In Flint, Mich., Whittier Middle School teacher Lamar Davis was suspended for two weeks and given a written reprimand for inviting students to a barbecue at his home without first clearing the action with administrators. (Matt Bach, “Teacher vows to hold barbecue after return from suspension”, Flint Journal, May 23) (via Reason Express, Progressive Review).
June 2-4 — Testimony “not credible”, gets $192K anyway. A New York Court of Claims judge has ordered the state to pay $192,464 to a construction worker injured in a 1991 roof fall even though she found his testimony to be not credible in significant respects. Bogdan Wielgosz was working as a roofing assistant for a construction company at the Manhattan Children’s Psychiatric Center when he fell and suffered back and wrist injuries. At trial, presiding judge Susan Phillips Read found Wielgosz’s testimony “dubious” regarding some of the long-term practical effects of his injuries as well as regarding his reported earnings before the incident, reports the New York Law Journal. For instance? “The claimant said he had not driven since 1994 because of injuries suffered in the accident, but was then confronted with an accident report in which he claimed back, neck and head injuries stemming from an incident in 1995.” Judge Read’s decision took pains to “emphasize” at the outset that she “did not consider claimant to be a credible witness: the frank inconsistencies and discrepancies in his testimony were too numerous to chalk up entirely to lapses in memory or nuances of language lost or misapprehended in translation.'” However, she ruled that objective evidence of Wielgosz’s injuries, combined with an earlier finding of liability on the part of the state, nonetheless warranted an award of $32,881 for past medical expenses, $9,583 for lost income and household services, and $150,000 for past pain and suffering, to which was added 9 percent interest. (John Caher, “State Must Pay Injured Construction Worker”, New York Law Journal, Feb. 16).
June 1 — Welcome CEO Express readers. The premier desktop portal for busy decisionmakers names us as today’s Great Site of the Day, as do its associated sites JournalistExpress and MDExpress.
June 1 — Somebody to sue. Four case studies in creative defendant selection, with apologies to Grace Slick and the Jefferson Airplane:
Don’t you want somebody to sue … After the 1996 crash near Dubrovnik, Croatia, that killed Commerce Secretary Ron Brown and 34 others, lawyers representing victim families faced an obstacle in the form of various laws sharply restricting the filing of actions against many of the more obvious candidate defendants: the U.S. government and its employees, military contractors such as planemaker Boeing, the government of Croatia, and so forth. But never despair: in a recently filed suit, lawyers for survivors announce they’ve found the real culprit in the crash, namely Denver-based Jeppesen Sanderson Inc., publisher of aeronautical charts which they say were confusing and understated the dangers of flying into the Dubrovnik airport. The map publisher “denies any wrongdoing and says it merely publishes approach data provided by civil aviation authorities around the world.” (“Suit Alleges Jeppesen Charts Contributed To Air Force Crash”, AVweb, March 2000 (“Briefs…”)).
Don’t you need somebody to sue… The Cincinnati Enquirer, in its retrospective on the catastrophic Beverly Hills Supper Club fire of 1977, reports that then-obscure injury lawyer Stanley Chesley, representing victim families, came up with the idea of suing not just the owners of the ill-fated nightclub but scores of companies that made such items as carpets and paneling, upholstery and plastic pipes within it, on the grounds that all their products, by burning, contributed to smoke and flame. “‘In all fires, they sue those people now, but it was novel then,’ said William O. Bertelsman, the victims’ co-counsel until becoming a federal judge. …Victims’ lawyers could not prove who made which aluminum wire or plastic furnishing, so they sued every manufacturer in each industry on the assumption anyone might have supplied the materials. …’The big innovation,’ complained attorney Jacob Stein, who opposed Mr. Chesley in Beverly Hills and since, ‘was that they sued a huge number of people who had no liability and were willing to pay you several hundred thousand dollars to make you go away.'” Chesley went on to become a wealthy political kingmaker (see March 30) and “Master of Disaster” (Ben L. Kaufman, “Litigation Bulldozed Traditional Legal Routes“; “The Master of Disaster“, part of Cincinnati Enquirer special series).
Wouldn’t you love somebody to sue… Having already bankrupted at least 22 companies that mined or sold asbestos or asbestos-containing products in past decades, lawyers are now suing a further estimated 2,400 companies that might in some way have exposed workers and others to the once ubiquitous insulation material, including Campbell Soup and Colgate-Palmolive (workers “handled or worked near equipment that contained asbestos”); Gallo Winery and Gerber Products; Ford and GM (brake linings); Alcoa (sued because its aluminum brake linings “allegedly cut into asbestos insulation, releasing fibers into the air”; and hospitals, colleges and other institutions that used ceiling tiles or insulation of which the naturally occurring mineral was an ingredient. “You have to look under every stone”, says New York plaintiff’s lawyer James Early. According to the Wall Street Journal‘s news side, “[t]he bulk of new cases involve plaintiffs who aren’t ill but have some scarring that they fear will lead to future problems.” The Allwood Door Co. is named in half a dozen lawsuits filed by construction workers “because it sold fire-barrier doors made by another company in the 1960s and 1970s”. The doors in question were wood-sheathed, but contained asbestos in their mineral core; company president Bob Howell says he didn’t know the substance was even present within the doors. (Susan Warren, “Asbestos Suits Target Makers Of Wine, Cars, Soups, Soaps”, Wall Street Journal, April 12, fee-based subscriber archives).
…You better find somebody to sue. After Robert Longoria’s car collided with a deer along a semirural stretch of road in Brazoria County, Texas, his lawyer, Robert Kwok, sent a demand letter seeking money for his back injury and whiplash to a local subdivision association, alleging that some of its homeowners had taken to feeding the deer and could therefore be held legally responsible for their presence in the area. The residents resisted and Kwok’s firm has announced that it will not pursue the claim against them “at this time”. (Steven Long, “Buck Off”, Houston Press, April 27) (via Citizens Against Lawsuit Abuse Houston). (DURABLE LINK)
June 1 — 500,000 pages served on Overlawyered.com. Eleven months after we started, it’s clear someone’s reading us… why not pass the word to a friend and help us reach a million even faster? Thanks for your support!
June 20 — The judge chips in. From suburban Washington, a story that ends with not your usual kind of wealth redistribution: moved by the plight of a couple facing eviction for falling $250 behind on their rent, Fairfax, Va. judge Donald P. McDonough simply handed his own money to the landlord’s stunned attorney and said, “Consider it paid.” “Not something you see much,” said bailiff Erin Cox, who was present. “Not something you see ever.” Odder and odder: four attorneys on hand for other cases, seeing the judge’s example, pulled out their own checkbooks and offered donations to the couple. (Michael Leahy and Leef Smith, “A Beneficent Bench”, Washington Post, June 10).
June 20 — “New York City moves to slash Cendant fees.” “New York City [recently] submitted legal papers challenging as “astronomical” the $262 million fee request — set under a court auction procedure — that was submitted by the law firms that negotiated the record breaking $3.1 billion settlement in the Cendant case.” The class action firms of Bernstein Litowitz Berger & Grossman in New York and Barrack, Rodos & Bacine in Philadelphia had been named by the court to represent investors seeking to recoup losses suffered in 1998 when the parent company of the Avis and Ramada Inn franchises conceded that its books showed massive accounting irregularities. (Daniel Wise, New York Law Journal, June 1) (update Sept. 4: judge approves fee).
June 20 — “A Civil Action” and Hollywood views of lawyers. In Boston this spring, the Federalist Society convened a panel discussion on Hollywood’s portrayal of lawyers and litigation, specifically the movie “A Civil Action”(our take on it) as well as clips from several other films. Featured on the panel were several of the attorneys involved in Anderson v. W.R. Grace, the case highlighted in “A Civil Action”, including Jerome Facher of Hale and Dorr (Beatrice Foods), Kevin Conway (plaintiffs), and Michael Keating and Marc Temin of Foley, Hoag & Eliot (W.R. Grace). The moderator was Evan Slavitt of Gadsby Hannah LLP (1 hour, 50 minutes — NetRoadShow).
June 20 — “Litigation grows in ailing nursing home industry”. Lawyers say rising rates of court action are understandable since there’s so much neglect and abuse in long-term care (a spokeswoman from “the Coalition to Protect America’s Elders, a group funded by trial lawyers,” agrees) while administrator Marty Goetz at the River Garden Hebrew Home in Jacksonville says good and bad home operators alike are being “sued to death”. After making nursing home suits a big business in Florida, lawyers have fanned out to nearby states such as Alabama and Tennessee. (Julie Appleby, USA Today, June 19). Three long-term-care operators have filed for bankruptcy recently: Louisville-based Vencor, the largest such chain; Albuquerque-based Sun Healthcare Group, and Atlanta-based Mariner Post-Acute Network, the second-biggest operator with more than 400 homes nationwide. Medicare reimbursement cutbacks are generally cited as the main reason, but Mariner chairman Francis Cash said “explosive litigation costs” were also a factor.
SOURCES: Healthcare Management Advisors HMA Strategy Advisor, Jan. 28; “Nursing Home Files For Chapter 11”, Jan. 18; Debra Sparks, “Nursing Homes: On the Sick List”, Business Week, July 5, 1999; Lindsay Peterson, “Industry Tries Another Battle Tactic,”, Tampa Tribune, March 22, link now dead; Coalition to Protect America’s Elders (pro-liability); ProtectOurParents.com (pro-legal reform, Florida Health Care Association).
June 19 — Welcome CNNfn, Intellectual Capital, CEI readers. Reed Karaim’s advice article for workers thinking of suing their bosses mentions this site and quotes our editor; we like the piece, but who gave it that headline? (Reed Karaim, “Work issues? Go to court”, CNNfn/WomenConnect, June 16). Intellectual Capital bestows on us a mention/ quote/ link in an article on disabled access and web design, and IC‘s readers have joined in a discussion of the subject (K. Daniel Glover, “The Disability Divide”, June 15). And Max Schulz mentions this site in the Competitive Enterprise Institute’s latest Update (June).
June 19 — “‘Legislative Subpoenas’ Give Cities An Unfair Head-Start in Lawsuits”. “Should a city council be able to demand private books and records from a company it is considering suing simply to evaluate the city’s likelihood of succeeding in a lawsuit and how much it may be able to recover? The California Supreme Court is currently being urged to give carte blanche to any city, no matter how small, to demand financial and other information from its potential litigation opponents.” The asserted power “threatens every potentially unpopular business in the country.” (Daniel E. Troy (Wiley, Rein & Fielding and American Enterprise Institute), San Francisco Chronicle, June 13).
June 19 — Oh, to be in England. On ABC’s Politically Incorrect last Monday, host Bill Maher brought up the case (see June 12) of the deaf man who’s suing “Who Wants To Be a Millionaire?” because he can’t participate in its telephone screening process (“it seems like in this country you are not alive unless you are suing someone.”) Comedian Dennis Miller, star of HBO’s “Dennis Miller Live” said the case showed the need to make it easier to collect legal fees from those who file weak cases. Simon LeBon of Duran Duran: “That’s how it is in the U.K. If you’re wasting people’s time, you pay the cost, simple as that.” Miller: “Well, that makes sense. We have come over here … to get away from England because we found the laws repressive. I get over here and I find out their laws are better than ours.” (June 12 transcript; other show transcripts).
June 19 — Shoot-’em-ups: hand over your files. Per the Hollywood Reporter, federal investigators have asked the major studios “to turn over media and marketing plans for certain movies to determine whether the entertainment industry is peddling violent fare to young audiences,” citing sources “familiar with” the Federal Trade Commission probe of popular entertainment ordered by President Clinton after Columbine. “Sources said stacks of boxes of evidence” had been handed over to the federal agency, though with contents heavily redacted to remove proprietary data. The Commission is currently pursuing the probe under its Section 6 informal authority, under which it does not exercise formal subpoena power, but it could turn the proceedings into a probe under Section 5 authority, in which it would have such power. “While tobacco is federally regulated and movies, music and videogames are not, a veteran of the long court fights with the tobacco industry sees parallels between how the FTC probed cigarette marketing and how the FTC now seeks an education in entertainment marketing, especially to children.” (David Finnegan and Brooks Boliek, “Studios asked to show media (sic) their plans for violent films”, Hollywood Reporter/Norwalk (Ct.) Hour, May 8, not online).
Plus: the attorney general of Illinois has seen fit to conduct a “sting” operation on store owners’ sale of violent videogames to minors, though in general it’s not unlawful for them to sell minors those games. “Members of my staff also are researching alternative enforcement strategies if voluntary compliance is not forthcoming,” quoth the AG, Jim Ryan, whose website is emblazoned with the slogan, “For Children, For Families, For Illinois”. (David Hudson, “Illinois attorney general urges end to sales of violent video games to minors”, Freedom Forum, April 20). See also “No basis for liability” (editorial), Boston Herald, April 9 (expressing relief at court’s dismissal of Paducah lawsuit, see April 13); Damon Root, “The blame game”, Liberzine, April 11; Paul McMasters, “Target practice on the First Amendment”, Freedom Forum, Feb. 28).
June 16-18 — New subpage on Overlawyered.com: Overlawyered skies. Our newest subpage collects tidbits of every sort on what happens when law becomes airborne, including material on sport aviation, aerospace product liability, airline labor wrangles, and even UFO suits, along with of course crashes and their aftermath.
June 16-18 — No right to kick him out. Delaware real estate developer Louis J. Capano Jr. is suing the Wilmington Country Club after it expelled him for having made false statements to a grand jury. Last year, in a sensational case reported nationwide, a jury convicted Capano’s brother, former Wilmington attorney Thomas Capano, of murder in the 1996 disappearance and death of 30-year-old Anne Marie Fahey, who had been a secretary to the state’s governor. A judge later sentenced Thomas Capano to death. “During his brother’s trial, Louis Capano acknowledged that he lied to a federal grand jury in an effort to help his brother establish an alibi in connection with Fahey’s disappearance. He also admitted to helping dispose of some evidence connected to the slaying.” The country club subsequently voted out Louis Capano after learning of his admissions; its bylaws allow dismissal of members for conduct that is “disorderly or injurious to the club’s interest or reputation.” Last month he sued in the Court of Chancery seeking reinstatement and damages. (“Louis Capano Sues Wilmington Country Club for Reinstatement”, Delaware Law Weekly, May 11).
June 16-18 — Penalty for co.’s schedule inflexibility: 30 years’ front pay. “A federal jury in Pennsylvania awarded $1.5 million in a suit brought under the Americans with Disabilities Act by a woman who said her bosses at first accommodated her Crohn’s disease by letting her work from home on a flexible schedule but later reneged on that promise by insisting that she work specific days in the office.” Denise Davis, an insurance underwriter, said it was impossible for her to commit to being in the office any particular days because she never knew when her condition might flare up. “The eight-member jury awarded Davis the highest estimate of economic damages presented by the plaintiffs — $1.3 million — and $200,000 in compensatory damages. An economist testified at trial that Davis, who is currently 37, has already suffered losses of more than $40,000 in wages. And since no employer is likely to hire her while needing an accommodation, he said that a present-value estimate of her future lost wages up to age 67 is more than $1.2 million.” (Shannon P. Duffy, “Jury Awards Woman With Crohn’s Disease $1.5 Million in ADA Case”, The Legal Intelligencer (Philadelphia), June 1).
June 16-18 — Animated advocacy. Cross Circuit, a site decidedly in favor of the Second Amendment, carries a number of cartoon animations that may raise a smile, including an interactive game you can play (“Smith & Wesson Clinton Pacifier“) to get a feel for why so many firearms owners grow nervous when they hear about lawsuits intended to prevent the legal sale of any but “smart guns”. We also admit to having laughed at the London-nanny tale “Janet Poppins“, though we warn in advance that it is disrespectful to the presently serving Attorney General (requires Shockwave plug-in).
June 14-15 — The doctor strikes back. The courts make it next to impossible for a vindicated physician to turn the tables and sue the lawyer who filed a losing malpractice case, but Dr. John Guarnaschelli, a Louisville neurosurgeon, has managed to beat the odds. “Guarnaschelli charged that lawyer Fred Radolovich had sued him without any evidence that he was negligent, without consulting an expert, and without doing much of anything to determine whether he had a case. Radolovich later conceded in a deposition that the only doctor he consulted before filing the lawsuit [which was summarily dismissed] was one of his own clients — a family practitioner accused of fondling patients during gynecological exams. That doctor told Radolovich to go to a medical library instead….After a six-day trial, a Jefferson Circuit Court jury concluded on April 25 that Radolovich had maliciously prosecuted Guarnaschelli and ordered him to pay $72,000 in damages, including $60,000 in punitive damages.” Too many other good details to summarize here — don’t miss it (Andrew Wolfson, “Doctor strikes back at lawyer who sued him”, Louisville Courier-Journal, June 7; “Doctor sues lawyer for alleging malpractice”, AP/Lexington Herald-Leader, June 8).
June 14-15 — One gunmaker’s story. Freedom Arms is a small company in the town of Freedom, Wyoming, run by Bob Baker after being started by his father. It “makes collector guns, precise, modernized versions of the old western six-shooter that are sold to a small but multinational market.” “Freedom Arms customers must wait up to eight months for a handgun — far beyond the 24 to 72 hour waiting period debated by politicians — because the company only produces about 2,000 a year.” It has not, however, been spared the same litigation that has engulfed mass-market gun producers. In the much-discussed 1999 case of Hamilton v. Accu-Tek, it was one of 15 gunmakers a Brooklyn jury deemed negligent in their marketing practices, but not among those ordered to pay $500,000. “So far, Baker says he has spent more than $200,000 on legal bills and laid off 12 of his 35 employees to fight the lawsuits.” (“Gun Debate Hits Home for Opponents in Lawsuit”, AP/Salt Lake Tribune, April 20; Firearms Litigation Clearinghouse account of Hamilton v. Accu-Tek).
June 14-15 — “Trial lawyers give $500,000 as legislation heads to Senate floor”. With two major liability-curbing bills pending in the Senate, “trial lawyers in April contributed $508,000 to Democratic Senate campaigns,” reports AP. “The Houston law firm of Williams Bailey [a beneficiary of Texas tobacco fees] donated $250,000 of the total raised from trial lawyers in unregulated soft money during April by the Democratic Senatorial Campaign Committee.” A fund-raiser in Savannah during an Association of Trial Lawyers of America conference brought in $300,000: “Trial lawyers could chat with Democratic Sens. Tom Daschle of South Dakota, the Senate minority leader; John Edwards of North Carolina, a former trial lawyer himself; Charles Robb of Virginia and John D. Rockefeller IV of West Virginia.” Democratic Senatorial Campaign Committee spokesman David DiMartino “said there was no connection between the legislation and fund-raiser.” Trial lawyers have lobbied against both bills currently before the Senate: H.R. 2366 would limit punitive damages and the application of joint and several liability (paying an entire award when others were also responsible) for businesses with fewer than 25 employees, while H.R. 1875 would give defendants a right to have some class action lawsuits heard in federal rather than state court. Both bills are priorities of the U.S. Chamber of Commerce: “The trial lawyers have a lot of money, but the small-business community has a lot of votes,” said James Wootton, who directs the Chamber’s Institute for Legal Reform. (AP/FindLaw, June 2).
June 14-15 — The judge wasn’t asleep. A unanimous Second Circuit appeals panel has upheld a judge’s ruling that two lawyers and their clients should pay sanctions for the submission of dubious affidavits in an authorship dispute over the song “The Lion Sleeps Tonight“. In the lawsuit, four members of the 1950s musical group The Tokens said they had been fraudulently deprived of ownership rights for the 1961 hit (adapted from an earlier song on the Folkways label under the title “Wimoweh”, itself an adaptation of an earlier African song). The members testified in pretrial depositions that they first learned about the fraud in late 1992, but it developed that their 1996 lawsuit would therefore be barred by a three-year statute of limitations on this type of action. Attorneys Mitchell A. Stein and Stephen J. King then sought to present evidence that their clients had been mistaken in the depositions and had actually learned about the denial of authorship rights considerably later, which would salvage a chance to proceed. Judge Michael Mukasey of the federal court in Manhattan said that to credit the new version “would be to affect a level of naivete about human affairs that is not required even of judges,” and ordered Stein and King to pay $15,000, and their clients $7,680, to help “defray fees generated by their unreasonable conduct”. (Mark Hamblett, “Time-Barred Claim Leads to Sanction”, New York Law Journal, May 25) (versions of song, from Huga’s Pad) (Tokens fan site, Tom Simon).
June 13 — Can’t sue over affair with doctor. “A Grand Island woman who had sex with her gynecologist can’t sue him for negligence and emotional distress, the Nebraska Supreme Court said Friday.” Affirming a lower court opinion, the state high court “said the woman’s lawsuit failed partly because the relationship apparently was consensual.” The affair lasted for nearly six years, but the woman grew despondent after the doctor ended it. (Butch Mabin, “Court: Woman can’t sue doctor for negligence”, Lincoln Journal-Star, June 12).
June 13 — From the U.K.: watch your language. Stockport College in Manchester, England, has banned the use of more than forty “offensive” words and phrases, including “postman”, “chairman” and even “history” (sexist), “mad”, “manic”, “crazy” (demeaning to mentally impaired), “the deaf”, “the blind”, “slaving over a hot stove” (“minimizes the horror and oppression of the slave trade”), “normal family”, “ladies and gentlemen” (said to have “class implications”), The 15,000-student college says it “will make it a condition of service and admission that employees and students adhere to this policy”. (Martin Bentham, “College guide bans ‘lady’ and ‘history’ as offensive words”, Sunday Telegraph (London), June 11). And a public employment bureau in Staffordshire, England, recently told an employer that it could not place a recruitment advertisement that included the words “hardworking” and “enthusiastic”, which it deemed discriminatory. The bureau’s parent agency explained that in its opinion such terms, as well as terms like “reliable” and “smart”, are overly subjective and could foster discrimination against the disabled. However, the education and employment minister in the Blair government, David Blunkett, who is himself blind, ordered the policy reversed and the words permitted; his office issued a statement declaring that he “regards it as an insult to him personally to suggest that a disabled person cannot be reliable, hardworking and enthusiastic.” (Maurice Weaver, “Hardworking job seeker? Do not apply within”, Daily Telegraph (London), June 7; Andrew Mullins, “Over-enthusiastic jobcentre boss champions the cause of the lazy”, The Independent (London), June 7).
June 13 — Nader, controversial at last. As a presidential candidate scoring high enough poll numbers to affect the potential outcome in some close states, Ralph Nader seems on the verge of securing the thoroughgoing unpopularity in moderate liberal circles that has so long eluded him. Although the Associated Press still accepts his self-characterization as a “longtime advocate for the ‘little guy'”, the New Republic has been blasting away at the close ties Nader has formed with some not-so-little guys who share his antipathy to free trade, such as conservative textile magnate Roger Milliken: “Says Chip Berlet, an analyst at Political Research Associates who charts right-wing influence on lefty groups: ‘It’s a little strange — you come down to visit Nader and Milliken’s lobbyist picks you up.” (Ryan Lizza, “Silent Partner”, The New Republic, January 10; letters exchange between Joan Claybrook and Lizza, May 1, is not yet online). Still largely unaired in campaign coverage — but explored in pathbreaking articles by Forbes’s Peter Brimelow and Leslie Spencer a decade ago — are Nader’s much more longstanding ties to a far bigger set of big guys, the plaintiff’s trial bar, for which see links and quotes below.
SOURCES: On trade controversy, and general background: “Daily Notebook: Breaking the Silence” (third item), New Republic, May 22; John Judis, “Seeing Green”, May 29 (Nader “elevates the struggle with corporations into an apocalyptic conflict between good and evil” and turns business into a “bogeyman”); “Nader: Big Guys Invigorate Me”, AP/CBS News, undated, April (noting that Nader faces a handful of challengers for the Green Party nomination, including “Jello Biafra, former lead singer of the punk rock band the Dead Kennedys”); James Dao, “Nader Runs Again, This Time With Feeling”, New York Times, April 15 (reg) (critics charge “that despite his seemingly penurious way of living, he is actually quite wealthy, that he purposely spent almost nothing on his 1996 campaign to skirt federal election laws, which require candidates who spend more than $5,000 to file reports disclosing their assets”); Karen Croft, “Citizen Nader”, Salon, Jan. 26, 1999 (uncritical appreciation by former Nader employee); VoteNader.com (website for his candidacy).
On RN & trial lawyers, not online unless link given: Peter Brimelow and Leslie Spencer, “The plaintiff attorneys’ great honey rush”, Forbes, Oct. 16, 1989 (includes interview quotes from prominent trial lawyers: “‘We are what supports Nader. We all belong to his group. We contribute to him, and he fundraises through us,” says Fred Levin [Pensacola, Fla.] ([then-annual income from practice] $ 7.5 million). ‘I can get on the phone and raise $100,000 for Nader in one day,’ says Herb Hafif [Claremont, Calif.]. ‘We support him overtly, covertly, in every way possible,’ says Pat Maloney [San Antonio, Texas]. ‘He is our hero. We have supported him for decades. I don’t know what the dollar amounts would be, but I would think it would be very large, because we have the money and he has our unabridged affection. I would think we give him a huge percentage of what he raises. What monied groups could he turn to other than trial lawyers?'”); Peter Brimelow and Leslie Spencer, “Ralph Nader, Inc.”, Forbes, Sept. 17, 1990; Associated Press, Sept. 10, 1990 (quoting RN: “If they don’t retract I will take them to court”, an empty threat as it would seem); “Ralph Nader, pro and con”, Forbes, Oct. 29, 1990 (includes RN’s response); Leslie Spencer, “America’s third political party?”, Forbes, Oct. 24, 1994; Andrew Tobias, “Ralph Nader Is a Big Fat Idiot”, Worth, Oct. 1996; “Ralph Nader’s Dirty Little Secret”, New York Post (editorial), Mar. 19, 2000; Andrew Tobias, “Ralph Nader Really IS a Big Fat Idiot”, AndrewTobias.com, June 12, 2000.
June 12 — Rewarded with the bench. Probably no state official in the country has done more to organize mass litigation than Connecticut attorney general Richard Blumenthal, a key backer of gun, tobacco and Microsoft cases, among many others (see Dec. 2, March 31, Feb. 3, Feb. 16, April 11). Confirming (in case we didn’t already know) that marshaling such courtroom assaults is a good way to get ahead in American law, Blumenthal is now reported to be in line for a nomination by President Clinton to the powerful Second Circuit Court of Appeals, which handles cases from New York and Vermont as well as Connecticut. According to the Hartford Courant, compliant Senate Republicans are expected to confirm him quickly and without a fight. (Jon Lender and Michael Remez, “White House Eyes Blumenthal”, May 9; Michael Remez, “Blumenthal On Verge Of Court Nomination”, May 17; Michele Jacklin, “For The Last Time: Blumenthal Doesn’t Want To Be Governor”, May 17). Update Oct. 10: judgeship didn’t go through, now angling for Senate seat.
June 12 — Who wants to sue for a million?, part II. In March, four disabled Miami residents announced they were suing the hit game show “Who Wants To Be A Millionaire?”, saying the show hadn’t accommodated their efforts to become contestants, and “seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (see March 24-26) Now Peter F. Liberti Jr., who is deaf and a resident of Tonawanda, N.Y., has filed a similar complaint. (Dan Herbeck, “Wanted: a fair hearing”, Buffalo News, June 8).
June 12 — Bestiary of the bar. In Cincinnati, Common Pleas Judge Fred Cartolano recently complained from the bench “that there are too many lawyers, too many law schools and too many opportunities for dishonest behavior. ‘There are only so many fleas that can feed on a dog,’ the judge said. ‘We have lawyers coming out of the woodwork. There’s not enough business for all the lawyers out there.’ Judge Cartolano spoke before sentencing Kenneth Schachleiter to six months in jail for stealing about $91,000 from the estate of an elderly client.” (Dan Horn, “Judge decries lawyers as ‘fleas'”, Cincinnati Enquirer, April 13). Fullerton, Calif. attorney Linda K. Ross, who practices family and probate law, has filed a lawsuit against GTE Directories Sales Corp. for mistakenly listing her name and phone number in a yellow pages directory under the heading “Reptiles”. “She is subject to a great many joke and hostile phone calls, hissing sounds as she walks by and other forms of ridicule,” according to the lawsuit, although Ross does concede that her own mother “laughed for 10 minutes.” (Citizens Against Lawsuit Abuse Houston website, “Briefs”, citing May 1 issue, Liability & Insurance Week; Cathy Martindale, “Bulletin Board”, Amarillo, Tex. Globe-News, Jan. 17). A new legal referral website bills itself as “SharkTank.com — Attorneys Ready To Attack Your Case”. And New York Observer columnist Chris Byron has penned this lyrical description of what happened to a company whose business went from bad to worse trying to lend to borrowers with bad credit records: “class action lawyers have now descended on the company as if drawn by fish guts and other chum to a feeding frenzy of great whales”. (“Shoddy Contifinancial collapses by lending to risky deadbeats”, March 27).
June 30-July 2 — “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).
Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”
June 30-July 2 — Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (“Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.
June 30-July 2 — “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).
June 30-July 2 — “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?
“The student also asserted that ‘societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).
Postscript: Scott Shuger in Slate “Today’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.
June 29 — Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)
Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (“pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).
June 29 — “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, ‘Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,'” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).
June 29 — “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”
June 28 — Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))
June 28 — Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.'” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.
June 28 — Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (“New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).
June 28 — From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:
“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …
“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”
June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (“Rights and Wrongs”, July 3). (DURABLE LINK)
June 27 — Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment'”, Norwalk Hour, June 16, not online).
June 27 — Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).
June 27 — AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (“No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (“Florida judge approves class-action lawsuit against America Online”, CNN, June 25).
June 26 — Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.
In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).
June 26 — “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal‘s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (“TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).
June 26 — Updates. Catching up on further developments in several stories previously covered in this space:
* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (“Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (“When Tables Turn, Knives Come Out”, June 17) (reg).
* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).
* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489”, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.
* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).
June 22-25 — Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).
June 22-25 — More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (“Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).
June 22-25 — Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (“high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)
June 21 — And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).
June 21 — Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).
June 21 — …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).
June 21 — Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (“Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).