December 22, 2005

If unconscious, call right away

Regarding warning labels (Dec. 8, etc.): I received a medication information leaflet for a new medication from the Wal-Mart pharmacy. It read: "contact your physician immediately if you experience confusion or loss of consciousness". (The medication is Phos-Lo).

BTW, great blog. Keep it coming; I look forward to reading it.

-- Jeff Sheridan, Berwick, Pa.

Selling patent enforcement rights

I read the WSJ piece about patent enforcement (see Sept. 16) and I don't get it. I understand that the plaintiffs are persons who do not manufacture the good that has been patented, but so what? I am not getting an impression that there's something wrong with the system, e.g.: (1) the law makes it too easy to determine that someone has infringed a patent; (2) there is a problem in the way that the scope of patents is defined such that persons who really have not infringed are being charged with infringement; or (3) these suits are entirely frivolous (i.e., there's no reasonable question that infringement took place) and yet plaintiffs aren't being sanctioned for their bringing these suits (an example of which would be the case you cite in which the court threw out a claim on statute-of-limitations grounds).

All I'm getting is that Inventor, after properly patenting Invention, sells the patent rights to Enforcer. Enforcer uses the legal system to protect the patent from infringement by Big Manufacturing Conglomerate. Now, I don't know where Enforcer is getting the money to pay Inventor, or (if Enforcer is getting the money from his enforcement efforts), Enforcer is giving Inventor more money than BMC would pay.

But let's assume that's the case.

What makes BMC think that it's OK to infringe on a patent just because Inventor is not making the product himself? It's none of BMC's business. Whether Inventor is or isn't making the product, BMC may not infringe.

And if BMC wants the patent so bad, why doesn't it buy the patent? Or, if Inventor did such a good job with his invention that BMC can't make what it wants to make without using the invention, and it's not willing to pay what Inventor wants, then BMC should make something else. Sorry, but that's life. I'd love to make and sell iPods, but I'm not allowed to.

Then, with fewer infringers, Enforcer can't pay so much for inventions and Inventors have an incentive to market their inventions or to sell them to someone who will make something.

In other words, this problem sounds like one that is entirely the responsibility of Big Manufacturing Conglomerate; if BMC would follow the rules, the market would cause the problem to go away.

-- Barton Jacka, San Diego

Tolkien tangle

If anyone wants to probe the "chilling effects" of copyright lawsuits and the nasty techniques IP lawyers use against writers and publishers, feel free to contact me. I fought the Tolkien estate for over a year for the right to publish my Lord of the Rings chronology, Untangling Tolkien (available on I won a nice out-of-court settlement agreement that lets me talk about everything but the settlement. And I love to talk about what's wrong with the current system.

-- Mike Perry, Inkling Books, Seattle

Appalachian-heritage discrimination laws

I am writing to comment about your remark (Reason, Nov. 1997) "Already, Cincinnati is reported to have enacted a municipal ordinance declaring 'Appalachian heritage' to be a legally protected category in hiring and firing. When heading for the job interview, pack your dulcimer."

Although I respect your credentials & you are apparently well-known, you are dead wrong about this particular issue. Yes, indeed discrimination DOES occur as the result of Appalachian heritage & dialect. By dialect alone, the person of Appalachian heritage is distinguished as soon as he/she opens their mouth......and judgments are made that Appalachians are ignorant, poor, inbred & barefoot. The media (& filmmakers) has propagated this misconception. I should know, I am Appalachian-born, the daughter of a coal miner, and very proud of my heritage. I am a registered nurse, have a college degree (as do both my children) and have traveled the U.S. I find this discrimination in "pockets" across the U.S. I view it as evidence of ignorance, regardless of the high-brow circles from which it occurs, and am glad I don't live & work in these areas.

No, I don't "pack my dulcimer" (as you suggest) when I head to an interview, but I enjoy this traditional Appalachian instrument & hope to learn to play it myself someday--it is a delightful instrument. I also enjoy classical musical instruments & opera--because my interests and talents are much larger than the region of my heritage. Perhaps unintentionally, this remark evidences that you also have pre-conceived notions about Appalachia. Contrary to beliefs about the lifestyles in this region, we don't all sit on the porch in the evening, chewing tobacco & strumming a Dulcimer. So I challenge you--before you write another book or appear on another TV show -- to lose the suit & tie & actually come to the Appalachian regions of this country for a visit. If you come with a truly open mind & take an inside look, you will take away a new respect for this heritage.

In your zeal to propose that the discrimination issues have been carried too far, remember that you will never walk in the same shoes & therefore cannot possibly know the real discrimination that still occurs.

-- Pam Baker, Lexington, Ky.

November 18, 2005

"Teacher sues parent over handshake" (2001)

I am the teacher in your post of Mar. 26, 2001. The injury occurred November 20, 2000. Five years later, I have had 7 (yes, seven) surgeries. Each surgery resulted in a loss of 3 weeks of teaching. Over the years, I have suffered from the irresponsible choice an angry parent made over her son's grades. My students were affected as a result of multiple and lengthy absences. I continue to take medication for inflammation and pain. I have ugly scars on my forearm, wrist, and palm. Did I receive the $250,000 originally asked for in the claim? Not even 10%. How's that for justice? My lawsuit was never superfluous, nor was it irresponsible. I resent my name and litigation information being present on your site. Please remove it. It does not belong there. You have not done your homework. -- Traci England

Our original one-paragraph item, based closely on (and mostly quoting) the Salt Lake Tribune's coverage, was in no way inaccurate and in fact prominently mentioned the aspects of the story that put Ms. England's claim in the most sympathetic light. We appreciate the update informing us that the claim won only a small fraction of what Ms. England's lawyer originally demanded for it, although it is far from clear why that should make our posting of the paragraph look like a mistake in retrospect. To clear up two other possible misconceptions: 1) even a short browse through this site should be enough to see that the description of a case here does not invariably mean that we regard it as "superfluous" or "irresponsible", and 2) because our legal system does not provide for secret lawsuits, when one files a public legal action one is apt to find one's name and "litigation information" reported on by both newspapers and websites. That's just the way things work. -- W.O.

Wet lumber and autism

An additional note on the $22.6 million settlement (Nov. 8) of a claim by a family in Manhattan Beach, Calif. (which is local to me) that moldy lumber caused their son's autism:

The suit blames Crenshaw Lumber for not tarping their inventory. Well, guess what? Nobody in the area does that, for the simple fact(s) that:

A. It doesn't rain very often.

B. Lumber inventory turns over very fast due to the high volume of building and remodeling that takes place in the South Bay.

C. Even if it does rain, the best solution is to just let the lumber sit and dry out in the sun that will be coming out the next day (and the next, and the next, and ....)

However, once the lumber is delivered to the site, Crenshaw Lumber has no control over its further disposition.

Buildtimes in the South Bay seem to average about 6-8 months, and in many cases more, four years in one instance I know of. During that time a construction site can be blasted by rain -- and I do mean blasted -- two, three, or four times, or even more, by the Pacific storms that routinely sweep through the beach cities during the winter and spring. (In addition, the constant moist salt air does its bit too. Steel is rusted out in two years, and that's even if it's galvanized.) Yet -- and this is generally speaking -- I've yet to see a builder tarp a site to keep it dry during these seasons.

So, claims about mold causing autism aside (total B.S.!), is the lumber being "wet" and "causing mold" really Crenshaw's fault, or is it the result of a combination of factors - lengthy buildtime, seasonal storms, moist salt air, builder practices, and perhaps also the modern trend toward well sealed houses that can't and/or are not allowed by their owners to air out?

As an aside, I was struck by Gorman's comment that now he could "build a really nice house." The houses in that area already ARE really nice. What he's implying, I believe, is that the house he bought -- he didn't commission it initially -- was not as nice (or as big) as he wanted (or could afford). But now he can afford it.... -- Vic Benstead, Rancho Palos Verdes, Calif.

Madison taverns were up to no good

I'm one of the students that lived in Madison, Wis. during the period the taverns conspired to fix prices (May 2, 2005, Mar. 29, 2004).

What I thought might interest you is that we've had riots 3 years running during the famous Halloween party on State St. This year, the city government and university have asked the bars in the area to close early to help prevent riots for a fourth year. Shockingly, the taverns have grown a backbone and said no.

What lessons can we draw from this? When acquiescing means they stand to make money, the ruthless city government is just *too mean* to withstand, but when listening to the same officials means the taverns will lose money, well, that's an entirely different matter. Shocking how they've grown a backbone when they can't use the city's request to steal money from folks, eh? I'd say that pretty well undermines their claim they were coerced to raise prices.

Now, having this firm sue them isn't ideal, but since no one else is stepping up to the plate to make these people pay for what they did, I'll take what I can get. -- Earl Hathaway, Madison, Wis.

Used in law enforcement class

I taught a class in Civil Liability for Law Enforcement this first summer session and I used your site often to highlight some of the general principles (as well as more specifically regarding the police-chase liability phenomenon). Not only is your site interesting, but it's useful and -- dare I say -- good for you! -- Troy Hinrichs, Riverside, CA

August 22, 2005

Hospitality, ultra-cautiously

My first thought at reading the articles you linked to in your "Detroy Marshall v. Burger King" post (Aug. 3), which were written by Anthony Marshall of Hotel & Motel Management, was that they were satire. For if they were, I would have complimented the writer on a sharp satirical tongue. However, after reading more I realized -- this guy is for real.

I found it funny to read an article calling for the end of tubs which included Mr. Marshall's list of features that his ideal shower would contain:

1) the threshold to the shower is made obvious by lighting or coloring so I see it and don't trip; 2) the flooring has an abrasive, nonslip-surface construction; 3) safety grab bars are installed on one or more of the shower walls; 4) bath mats, where appropriate; 5) all hot/cold water faucets or mechanisms have handles for easy gripping, no slippery knobs and large print instructions; 6) solid soap holders don't drip slippery wet soap goop onto the shower floor; 7) no soap dish holder unless it can withstand the weight of an emergency grab by a falling bather (this applies to inside shower towel racks, too); and 8) safety glass. I'm surprised I don't see suggestions for a rubberized shower floor.

One thing I found amusing is how many of Mr. Marshall's articles involved first person accounts of his near-fatal encounters with hotels. Chevy Chase might be safer at the local Ramada Inn than Mr. Marshall. -- R. Bennett, Baltimore

Not just jury awards

As an attorney I wanted to point out that it is not just jury verdicts that are driving up the cost of insurance and of doing business. While verdicts contribute to the picture, the process of litigation itself generates enormous costs.

Take a class action against an major insurer or manufacturer. Plaintiffs will conduct extensive discovery seeking to prove the existence of a claim and to identify the dimensions of the class in question. Given the need to search for and review the relevant documents and electronic files before production, the target company may spend millions of dollars a month defending such cases, whether or not the underlying claims have merit or not. Many costly additional steps are needed to protect the client from inadvertent disclosures and to protect others from privacy invasion, which itself might spawn more litigation.

The defense of product liability cases incurs similar costs before getting to the question of what the real flaw in the product is or may be. Enormous sums are spent on discovery of documents and deposing experts. A whole support industry has sprung up to feed resources into litigation. Liberal discovery and pleading rules in most states run up costs by allowing a plaintiff to file a suit and then attempt to discover from the defendant's documents and employees what his claim might be.

The real people getting rich in all of this are the lawyers on both sides, while the costs impact businesses large and small as well as public entities such as school systems. No one seems to be talking about the fundamental alterations in the system we need. -- Jay Strickland, Georgia