October 10 — Hot pickle suit. Veronica Martin of Knoxville, Tenn. has sued a local McDonald’s restaurant, alleging that last October it sold her a hamburger containing an overly hot pickle that dropped onto her chin, burning it so badly as to leave a scar. She’s asking $110,000 for medical bills, lost wages, physical and mental suffering, while her husband Darrin says he deserves $15,000 for being deprived of her services and consortium. The complaint was filed by attorney Amelia G. Crotwell, of a Knoxville law firm coincidentally known as McDonald, Levy & Taylor. (Randy Kenner, “Couple sue McDonald’s over spilled ‘hot’ pickle”, Knoxville News-Sentinel, Oct. 7; “Couple Sues Over Hot Pickle Burn”, AP/Yahoo, Oct. 7). (case settled: see April 16, 2001)
October 10 — “Gunshot wounds down almost 40 percent”. The steep decline took place between the years of 1993 and 1997, well before the unleashing of mass litigation against gunmakers by way of big-city lawsuits (AP/USA Today, Oct. 8). And despite attempts to redefine private ownership of guns as some sort of out-of-control public health epidemic, “the number of fatal gun accidents is at its lowest level since 1903, when statistics started being kept.” (Dave Kopel, “An Army of Gun Lies”, National Review, Apr. 17). The Colorado-based Independence Institute, of which Kopel is research director, maintains a Second Amendment/criminal justice page which includes a section on gun lawsuits.
October 10 — Spread of mold law. Injury and property damage claims arising from the growth of mold in buildings were “virtually unheard of a few years ago” but are now among the “hottest areas” in construction defect and toxic tort law, reports Lawyers Weekly USA. “I view these mold claims as similar to asbestos 30 years ago,” Los Angeles lawyer Alexander Robertson told the Boston-based newspaper. “Mold is everywhere,” another lawyer says. “There are no specific government guidelines and not a whole lot of medical information on it. It’s ripe for lawyers to get into and expand it.” Most commonly found when water gets into structures, mold has been blamed for a wide variety of health woes including “respiratory problems, skin rashes, headaches, lung disease, cognitive memory loss and brain damage, common everyday symptoms that could be caused by other factors. That’s where lawyers and expert witnesses come in.” (“Toxic mold a growing legal issue”, UPI/ENN, Oct. 6) (via Junk Science).
October 10 — Updates. Following up on stories covered earlier in this space:
* Amid “tense confrontations”, attempts to disrupt and block the march, and the arrest of 147 protesters, Denver’s Columbus Day parade (see Oct. 3) went on without actual bloodshed: Rocky Mountain News, Denver Post and New York Post coverage, and National Review commentary.
* At the time of our June 12 commentary, hyperactive Connecticut attorney general Richard Blumenthal was up for a Second Circuit federal judgeship; now, the window of opportunity for confirmation having slammed down on Clinton nominees, he’s angling for the Senate seat that Dems hope Joe Lieberman will soon vacate. David Plotz in Slate profiles the ambitious pol as state AG, “always trolling for power and press”. (Sept. 15).
* In the race-bias case filed by 21 workers at a northern California Wonder Bread bakery (July 10, Aug. 4), a judge has reduced the jury’s punitive damage award from $121 million to $24 million (Dennis J. Opatrny, “Dough Sliced in Wonder Bread Case as Punitives Cut by $100 Million”, The Recorder/CalLaw, Oct. 9).
* An English instructor at the City College of San Francisco has dropped his suit against the proprietor of a “course critique” Web site that posts anonymous critiques of teachers (see Nov. 15, 1999). Daniel Curzon-Brown agreed to drop his defamation suit over comments posted about him at the site and pay $10,000 in attorneys’ fees to the American Civil Liberties Union, which had represented the proprietor of the website, Teacherreview.com. An ACLU lawyer hails the outcome as a victory for free speech on the Web. (Lisa Fernandez, “Instructor at City College settles suit on Web critiques”, San Jose Mercury News, Oct. 3).
October 6-9 — Owens Corning bankrupt. The building materials giant, known for its Pink Panther fiberglass insulation mascot, has filed for Chapter 11 bankruptcy protection, thus becoming one of the biggest of the 25+ companies to be bankrupted so far by the ongoing litigation over injuries attributed to asbestos. Between 1952 and 1972 it sold a pipe insulation product trade-named Kaylo containing the mineral, which brought it total revenues of $135 million over that period; since then it’s paid or committed to pay $5 billion in resulting injury claims, with billions more still looming ahead (Oct. 5: CNNfn; AP; Reuters; company site). Over the years, Owens kept coming back to set aside one more supposedly final reserve to cover its remaining lawsuit exposure, but was proved wrong each time as claims accumulated (representative sunny-side-up profile: Thomas Stewart, “Owens Corning: Back from the Dead”, Fortune, May 26, 1997). In late 1998 it agreed to pay $1.2 billion to settle what were billed as 90 percent of the claims then in its pipeline, but that pipeline soon filled up again as lawyers filed new suits (“Owens Corning settles suits”, CNNfn, Dec. 15, 1998). Regarding the irrationality of the current asbestos litigation system as a way to compensate injured workers, its high overhead and delay, the capriciousness of its outcomes, and its burdensomeness to the thousands of businesses that by now have been pulled in as defendants, see the testimony of several witnesses at the House Judiciary Committee hearing held July 1, 1999, in particular Harvard prof Christopher Edley, former HHS secretary Louis Sullivan, and GAF’s Samuel Heyman; regarding the quality of many of the claims, the means by which many were recruited, and the techniques used to maximize the number of defendants named in each, see our “Thanks for the Memories”, Reason, June 1998.
Owens Corning at various times acquired a reputation as the asbestos defendant that would try to meet the plaintiff’s lawyers halfway rather than fight them ditch by ditch. It opposed last year’s proposal for a legislated federal system of asbestos compensation, saying that it placed more confidence in the arrangements it was negotiating with trial lawyers to resolve claims (Owens testimony and attachment). This testimony was delightedly seized on by the bill’s opponents (dissent by twelve Democratic members, see text at note 8; note the striking similarity in the dissent’s overall arguments to those in earlier ATLA testimony). Earlier, the company had even gone so far as to fund discovery by trial lawyers aimed at uncovering other asbestos defendants for them to sue in hopes of taking some of the pressure off itself, according to Michael Orey’s Assuming the Risk: The Mavericks, The Lawyers and the Whistle-Blowers Who Beat Big Tobacco (Little, Brown, 1999, p. 255). In the end, these methods seemed to work no better in saving it from ruin than the ditch by ditch style of defense worked for others.
Iin their dissenting opinion, the twelve Democratic House members also wrote as follows: “We also find little evidence to support the proponents’ claim that the legislation is needed because we will otherwise face a growing stream of bankruptcies by defendant companies. …Our review of the specific liability statements by publicly traded asbestos defendants confirms that the principal remaining asbestos defendants are not facing any significant threat of bankruptcy.” They name, as particular examples of companies for which there is no such threat, W.R. Grace and Owens Corning. “The situation is much the same with other significant asbestos defendants – U.S. Gypsum, Federal Mogul, Armstrong World Industries, and Pfizer (parent company of Quigley) all have indicated there is little likelihood that asbestos liability could lead to bankruptcy.” (see text at notes 10-15). Pfizer aside, most of these stocks were hit Thursday on Wall Street with losses of 20 to 35 percent of their value, and many have lost 75 percent or more of their value over the past year (Jonathan Stempel, “Owens Corning Woes Hit Other Firms”, Yahoo/Reuters, Oct. 5). It would be remiss of us not to name the twelve Judiciary Democrats responsible for this peer into a decidedly clouded financial crystal ball: they are John Conyers, Jr. (Mich.), Howard L. Berman (Calif.), Rick Boucher (Va.), Robert C. Scott (Va.), Melvin L. Watt (N.C.), Zoe Lofgren (Calif.), Sheila Jackson Lee (Texas), Maxine Waters (Calif.), William D. Delahunt (Mass.), Steven R. Rothman (N.J.), Tammy Baldwin (Wisc.), and Anthony D. Weiner (New York). (DURABLE LINK)
October 6-9 — Bioethicist as defendant. Arthur Caplan of the University of Pennsylvania, perhaps the nation’s most quoted medical ethicist, is now also apparently the first to face a lawsuit over his advice. “The father of Jesse Gelsinger, an 18-year-old from Arizona who died a year ago during experimental therapy for his inborn metabolic disorder, named Caplan in a lawsuit against several Penn doctors and two hospitals,” saying he should not have advised researchers to use full-grown research subjects on ethical grounds (because they could give knowing consent), as opposed to infants, in their experimental therapy. Some say that for practitioners to start getting sued represents a sign that bioethics has finally made it as a discipline. (Arthur Allen, “Bioethics comes of age”, Salon, Sept. 28).
October 6-9 — Car dealers vs. online competition. The Internet could make car buying a lot cheaper and easier; unfortunately, existing dealers have a strong lobby in state capitals and have been working hard to block online competition (Solveig Singleton, “Will the Net Turn Car Dealers Into Dinosaurs?”, Cato Briefing Papers #58, July 25 (study in PDF format); James Glassman, “Car Dealers Declare War on the New Economy”, TechCentralStation/ Reason Online, April 3; Murray Weidenbaum, “Auto dealers quash Internet competition”, Christian Science Monitor, Aug. 17; Scott Woolley, “A car dealer by any other name”, Forbes, Nov. 29, 1999).
October 6-9 — Blue-ribbon excuses. In Bucks County, Pa., Samuel Feldman has been convicted of mutilating baked goods in stores over a two-year period; merchants complained of thousands of dollars of losses including 3,087 loaves of sliced bread, 175 bags of bagels, and 227 bags of potato dinner rolls. An Archway distributor said that after the defendant visited shelves of packaged cookies, each was found to have a thumb-poke through its jelly center. Feldman’s wife Sharon told the jury that the couple are “picky shoppers” and inspect products carefully: “Freshness is important.” And his attorney, Ellis Klein, “asked the jury to be tolerant of different styles of bread selection. ‘Not everybody just takes a loaf and puts in their cart.'” (Oshrat Carmiel, “Judge clamps down on bread squisher”, Philadelphia Inquirer, Sept. 22) (see update Nov. 30).
Meanwhile, in West Palm Beach, Fla., after being found guilty of bribery, former criminal defense lawyer Philip G. Butler “decided he had done a bad job of defending himself. So Butler appealed his felony conviction, arguing that he failed to tell himself about the danger of waiving competent counsel.” An appeals court wasn’t buying. (Stephen Van Drake, A Fool for a Client”, Miami Daily Business Review, Sept. 8).
October 6-9 — “Money to burn”. American Lawyer profile of Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole talks about some of the ways the firm’s trial lawyers are handling their enormous income from the state tobacco settlement (156-foot yacht, new office building, hanging out with Hillary Clinton and Al Gore a lot) but doesn’t get into the question of what their aggregate take from the tobacco caper will be — elsewhere it’s been reported to be in the billions, with a “b”. (Alison Frankel, American Lawyer, Sept. 27).
October 6-9 — “Attorneys general take on Mexican food industry”. A parody we missed earlier, appearing in the online Irk Magazine (March 24). As always with these things, do as we do and keep repeating to yourself: it’s just a parody … it’s just a parody … it’s just a parody.
October 5 — For Philly, gun lawsuits just the beginning. Philadelphia’s city solicitor, Kenneth I. Trujillo, is forming a new “affirmative-litigation unit” within his department to file lawsuits against national and local businesses and recover (he hopes) millions of dollars for the city, teaming up with private lawyers who will work on contingency. “He said he hoped the city’s pending lawsuit against gun manufacturers would prove to be just the beginning. ‘It’s really about righting a wrong,’ Trujillo said about the cases he plans to pursue. ‘Not only do they have a public good, but they’re rewarding in other ways. They’re rewarding financially.'” While in private practice, Trujillo founded a firm that specialized in filing class-action suits. He declines to discuss possible targets, but other cities and states have sued lead paint and pigment makers, and San Francisco, which pioneered the idea of a municipality-as-plaintiff strike force, has gone after banks and other financial companies. (Jacqueline Soteropoulos, “City solicitor banks on lawsuits”, Philadelphia Inquirer, Sept. 26). (also see Oct. 13-15)
October 5 — New feature on Overlawyered.com: letters page. We get a lot of mail from readers and have thus far been able to fit only a very few highlights from it onto our front page. This new separate page series should give us a chance to publish a wider selection without interrupting the flow of main items. We start with two letters, from PrairieLaw columnist David Giacalone and HALT counsel Thomas Gordon, reacting to reader David Rubin’s criticism of small claims court earlier this week.
October 5 — Scarier than they bargained for. When lawyers’ promotional efforts go wrong: California law firm Quinn Emanuel Urquhart Oliver & Hedge, to call attention to its new San Francisco office, sent hundreds of potential clients brown cardboard boxes filled with realistic-looking grenades, along with a promotional note advising businesses to “arm” themselves against legal dangers. Unfortunately, two of the recipients thought the devices were real and called the bomb squad (Gail Diane Cox, “Law Firm’s Explosive Ad Campaign Draws Critics, Attention”, CalLaw/The Recorder, Sept. 22).
October 5 — Judge tells EEOC to pay employer’s fees. “Calling it ‘one of the most unjustifiable lawsuits’ he ever presided over, U.S. District Judge Robert Cleland in Bay City, Mich., ordered the Equal Employment Opportunity Commission to pay a Burger King owner more than $58,000 in his legal costs fighting discrimination charges. The judge also ordered five EEOC lawyers to present the commission with his findings that they mishandled the case,” brought against E.J. Sacco Inc. (Winston Wood, “Work Week”, Wall Street Journal/Career Journal, Aug. 8 (next to last item)).
October 5 — Sidewalk toilets nixed again. Boston is the latest city whose plans to become more Paris-like have run into trouble, as its planned $250,000 outdoor commodes fail to comply with handicap-access laws. (Steven Wilmsen, “State approval denied for city’s new ‘street furniture'”, Boston Globe, Sept. 26).
October 4 — Presidential debate. Vice President Al Gore: “I cast my lot with the people even when it means that you have to stand up to some powerful interests who are trying to turn the policies and the laws to their advantage.” He mentions HMOs, insurance, drug and oil companies, but omits an interest group that’s backed him with great enthusiasm over the years, trial lawyers. “I’ve been standing up to big Hollywood, big trial lawyers,” responds Texas Gov. George W. Bush. And later: “I think that people need to be held responsible for the actions they take in life.” (CNN transcript; scroll 3/4 and 7/8 of way down)
October 4 — Aviation: John Denver crash. Survivors of singer John Denver, who was killed three years ago in the crash of a do-it-yourself amateur airplane he was flying off the Pacific coast, have obtained a settlement in their lawsuit against Gould Electronics Inc. and Aircraft Spruce & Specialty Co., which made and sold a fuel valve on the craft. An investigation by the National Transportation Safety Board concluded that the accident happened because Denver knowingly took off with low fuel in a plane with which he was unfamiliar, the fuel lever was hard to reach, and when he reached around to grab it he lost control of the aircraft. A commentary on AvWeb describes the evidence in the manufacturers’ defense as “seemingly overwhelming”: “Everyone involved in general aviation knows that out-of-control lawsuits are the reason a flange on a car costs a quarter and the same flange for a Mooney will run you 150 bucks, and it only seems to be getting worse. …Perhaps in addition to asking the presidential candidates their stands on user fees, the aviation industry should demand to know their positions on tort reform.” The commentary goes on to discuss lawsuits filed over the Air France Concorde crash and over Northwest Airlines’ New Year’s Day 1999 customer delay fiasco at the snowbound Detroit airport (“John Denver’s relatives settle lawsuit against manufacturers”, AP/FindLaw, Sept. 29; “John Denver’s Heirs Settle Lawsuit Over His Death”, Reuters/ Yahoo, Sept. 30; “Run Out Of Fuel? Stuck In A Storm? File A Lawsuit And Win!”, AvWeb, Oct. 2; “Close-Up: The John Denver Crash”, AvWeb, May 1999; NTSB synopsis; rec.aviation.homebuilt (Usenet discussions — check recent thread on Denver crash)).
October 4 — School now says hugs not forbidden. Euless Junior High School, in suburban Dallas, now denies that it punished eighth-graders Le’Von Daugherty, 15, and Heather Culps, 14, for simply hugging each other in the hallway, as was widely reported last week. Instead it says the girls had been repeatedly insubordinate and that hugging as such is not against the rules, only “overfamiliarity”. However, last week Knight-Ridder reported that the school’s principal, David Robbins, “says such physical contact is inappropriate in school because it could lead to other things. Robbins said he stands by his rule that no students should hug in school. … [It] increases the chances of inappropriate touching and creates peer pressure for students who may not want that type of contact.” (“Texas school defends punishing girls for hug”, Reuters/ FindLaw, Oct. 2; Gina Augustini Best, “Texas junior high punishes girls for hugging in hallway”, Knight-Ridder/Miami Herald, Oct. 1; see also March 2 (Halifax, N.S.)). And in suburban Atlanta, school officials have explained why 11-year-old Ashley Smith will not be allowed to appeal her two-week suspension over the 10-inch novelty chain that hangs from her Tweety bird wallet (see Sept. 29): “They noted that students are routinely shown samples of items banned under the weapons policy at the beginning of the school year. ‘These items have been used in the past as weapons. A chain like the one in question can have any number of devices attached to it and it becomes a very dangerous weapon,’ said Jay Dillon, communications director for Cobb County school district.” (“Feathers fly over school suspension”, Reuters/ Excite, Sept. 29).
October 4 — Trial lawyers’ clout in Albany. “Albany insiders say David Dudley — a former counsel to Senate Majority Leader Joseph Bruno who now lobbies for the state trial lawyers association — was a key figure behind Senate passage of a bill to lift caps on fees lawyers earn in medical malpractice cases,” Crain’s New York Business reported this summer. The measure, long sought by trial lawyers, “had the support of the Democrat-run Assembly, but could never win backing from Mr. Bruno and the Republican-controlled Senate. Insiders believe Mr. Dudley reminded Senate Republicans that failure to give the trial lawyers at least one victory this election year could prompt the lawyers to fund Democratic opponents.” Mr. Dudley would not comment; since passing both houses, the bill has been sent to the desk of Republican Governor George Pataki. (“Bruno ex-counsel key to lawyer bill”, Crain’s New York Business, July 24, fee-based archives).
October 4 — New visitor record on Overlawyered.com. We set another weekly and daily traffic record last week. Thanks for your support!
October 3 — U.S. Department of Justice vs. Columbus Day? The Italian-American organizers of Denver’s Columbus Day parade are in hot water because they’d like the event to include some reference to the man for whom the holiday is named. Local American Indian and Hispanic groups have protested honoring someone they see as symbolizing European settlement, native displacement, slavery and even genocide; heeding their concerns, the city and federal governments pressed organizers to accept permit conditions under which the parade would avoid mentioning the explorer, according to attorney Simon Mole of the American Civil Liberties Union. “With the help of the U.S. Justice Department, Italian-Americans and American Indians reached agreement [earlier in September] to hold a ‘March for Italian Pride’ on Oct. 7 that would exclude any references to Christopher Columbus,” reports the Denver Post, but the agreement fell through after the organizers decided they had been giving away their First Amendment rights under government pressure. Menacingly, however, “LeRoy Lemos, who represents a group called Poder, a Hispanic community rebuilding program, said references to Columbus at the parade will not be tolerated. ‘After seven years of peace, our position remains that there will never be a Columbus Day parade in Denver – not this year, not next year, not ever,’ Lemos said. ‘If they violate the terms of the agreement, there will be no parade. Period.'” Who’s the Justice Department protecting, anyway?
SOURCES: J. Sebastian Sinisi, “Columbus’ name banned from ‘Italian Pride March'”, Denver Post, Sept. 21; J. Sebastian Sinisi, “Columbus parade pact fails”, Denver Post, Sept. 29; “The right to march” (editorial), Denver Post, Sept. 30; Al Knight, “Webb deaf to free speech”, Denver Post, Oct. 1; related articles; Peggy Lowe and Kevin Flynn, “Italians renege on renaming parade”, Rocky Mountain News, Sept. 29; Vince Carroll, “Let Columbus rest in peace”, Rocky Mountain News, Sept. 24; Bill Johnson, “Columbus, well, that’s not all this parade’s about”, Rocky Mountain News, Oct. 1; Columbus bio courtesy of student projects, St. Joseph’s School, Ireland. Update: parade held with disruptions and mass arrests, no bloodshed (see Oct. 10). (DURABLE LINK)
October 3 — From our mail sack: small claims court. David Rubin writes from Los Angeles: “I am a defense lawyer who generally supports the ideas which you espouse on this forum. However, I can safely say that out in Los Angeles, the small claims court (see Sept. 29) is more akin to a Kangaroo court than anything else. The reason cases can be heard so quickly in small claims is that judges spend so little time on them. The average small claims case lasts 5 minutes. I had a client who had a small claims judgment entered against him, based on a contractual debt owed to a company. This company had been shut down by the Corporations Department for fraud, based on the very contract the client had been found liable on. The client had evidence of this, but the judge wouldn’t hear of it.
“The judge simply asked ‘Did you sign this contract?’ – Client: ‘Yes’. – Judge: ‘Did you pay this debt?’ – Client: ‘Well, you see…’ – Judge: ‘Yes or no?’ – Client: ‘No’ – Judge: ‘Judgment for the plaintiff’.
“Speedy justice isn’t always justice, you know…”
October 3 — Volunteer gamers’ lawsuit. Heated discussions in progress around the Net re Fair Labor Standards Act lawsuit demanding retroactive minimum wage pay and benefits for volunteer fans who’ve helped administer online role-playing games (see Sept. 12): Nihilistic.com discussion; “GamerX”, “Money Changes Everything”, CNET GameCenter, Sept. 22; CNET discussion; complaint (Lum the Mad).
October 3 — More things you can’t have: raw-milk cheeses. “The Food and Drug Administration is considering new rules that either would ban or drastically limit the manufacture and import of raw milk, or unpasteurized, cheeses.” These include most of the interesting ones that one would go out of one’s way to eat. Safety grounds, of course, are cited: the more the compulsory assurances that we will live to a healthy old age, the fewer the reasons to want to do so. (Eric Rosenberg, “U.S. ponders ban on raw milk cheese”, San Francisco Examiner, Sept. 18; “Do dangerous organisms lurk in your favorite unpasteurized cheese?”, Reuters/CNN, Sept. 27).
October 2 — Killed his mother, now suing his psychiatrists. “Two summers ago, Alfred L. Head drove his car through the front wall of his family’s Reston[, Va.] home, then walked in with a baseball bat and beat his mother to death.” Found not guilty by reason of insanity and sent to a mental hospital, he’s now suing the psychiatrists he says should have prevented him from doing it. According to the Washington Post, “a number of experts said Head may have a strong case. They point to Wendell Williamson, a North Carolina man who went on a shooting rampage that killed two people and later won $500,000 after suing a psychiatrist who had stopped treating him eight months before the shooting….. Commonwealth’s Attorney Robert F. Horan Jr., who prosecuted Head, said he had ‘a history of manipulating the mental health community.’ Head knew the right words and behaviors to avoid hospitalization, Horan said. ‘It’s hard for me to believe,’ he said, ‘that the very guy who manipulated the system now says the system screwed up while he was manipulating them. He successfully conned all of them.'” (Tom Jackman, “Reston Family Sues in Insanity Case”, Washington Post, Oct. 1).
October 2 — No fistful of dollars. After deliberating for four hours, a San Jose jury found that Clint Eastwood does not have to pay damages to a disabled woman who said his inn/restaurant violated the Americans with Disabilities Act. The jury found him liable for two minor violations of the law but declined to assign damages. (Brian Bergstein, “Eastwood cleared in disabled case”, AP/Yahoo, Sept. 29; Reuters/Yahoo; “Clint Eastwood Explains His Beef With the ADA”, Business Week, May 17; Sept. 21 and earlier commentaries linked there).
October 2 — Judge throws out half of federal tobacco suit. In a 55-page opinion, U.S. district judge Gladys Kessler last week threw out the health-cost reimbursement portions of the Clinton Administration’s much-ballyhooed federal lawsuit against tobacco companies, while allowing to proceed, for now at least, its claims under the dangerously broad and vague RICO (racketeering) law. “Congress’ total inaction for over three decades precludes an interpretation … that would permit the government to recover Medicare” and other expenses, Kessler ruled. Both sides claimed victory, but cigarette stocks rose sharply on Wall Street.
According to Reuters, ‘Kessler expressed reservations about whether the racketeering claims would ultimately prove successful. ‘Based on the sweeping nature of the government’s allegations and the fact the parties have barely begun discovery to test the validity of these allegations, it would be premature for the court to rule (now),’ Kessler wrote. ‘At a very minimum the government has stated a claim for injunctive relief: whether the government can prove it remains to be seen.'” (Pete Yost, “Judge: 2 Claims Out in Tobacco Case”, AP/Yahoo, Sept. 28; Lyle Denniston, “Federal judge throws out half of tobacco industry lawsuit”, Baltimore Sun, Sept. 29; Reuters/FindLaw; MS/NBC; Washington Post)(U.S. v. Philip Morris — main decision in PDF format via Findlaw).
October 2 — Malpractice outlays on rise in Canada. “Damage claims arising from medical malpractice are costing Canadian doctors and taxpayers an arm and a leg, especially in Ontario,” according to estimates from the Canadian Medical Protective Association, which defends doctors in court. There are pronounced regional differences, with average settlements in closed cases running C$172,000 in Ontario, C$67,000 in Quebec, and in between elsewhere. The projected cumulative cost of all pending claims is expected to reach C$3 million per Canadian doctor by the end of 2000 — a number that seems strangely high given the reported size of claims, but which is not further elucidated in the story. (Dennis Bueckert, “Malpractice awards averaging $3 million per doctor are a major cost to taxpayers”, CP/St. Catharines (Ont.) Standard, Oct. 1) (more on regional differences).
October 19 — Sexual harassment: ask the experts (if that’ll help). CNN.com asks authorities on harassment law for advice on handling common workplace situations and gets strikingly contradictory answers. Should employers ban consensual dating between supervisors and subordinates? Yes, says employment-law attorney Anne Covey; no, says business professor Dennis Powers. Does a desk photo of a wife or girlfriend in a bikini count as harassment? Yes, says Covey (“You wouldn’t allow somebody in a bathing suit to be in the office. So I don’t think the picture is appropriate either”); no, says Powers. Although the number of harassment complaints filed with the EEOC has been flat recently, sums of money recovered through the agency’s efforts have more than doubled since 1995. And don’t expect a potential complainant to tell you you’re doing something wrong before taking a gripe to management, says Covey: “An employee does not have an obligation to walk up to you and educate you about your behavior that they find to be inappropriate”. (Larry Keller, “Sexual harassment: Serious, subtle, stubborn”, CNN.com, Oct. 3).
October 19 — All shook up. Music student Anna Lloyd, 22, was among the 136 survivors of a fiery 1999 American Airlines plane crash at the Little Rock airport that killed 10 passengers and the pilot. Her attorney acknowledges that she is physically fine after the minor injuries she sustained at the time, but he says the psychological scars of the experience have left her emotionally disconnected, anxious, prone to angry outbursts, and socially withdrawn. American Airlines thought $330,000 in compensation was sufficient for her situation, but Lloyd asked a jury for $15 million, and last week it gave her $6.5 million. (“Jury awards woman $6.5 million in plane crash trial”, AP/FindLaw, Oct. 13; “Plane crash traumatized college student for life, lawyer argues”, AP/CNN.com, Oct. 11; passenger and crew list, Flight 1420 (Arkansas Democrat-Gazette)). In August, in the first lawsuit over the Little Rock crash to go to trial, Lloyd’s friend Kristin Maddox was awarded nearly $11 million; see Aug. 31.
October 19 — Courtroom crusade on drug prices? We’ve lost count of the number of fields of litigation that eager lawyers have nominated as the “next tobacco”: guns, lead paint, casinos, HMOs, class actions against Microsoft, and so on. One more to add to the scrapbook, which we missed earlier: class action suits over pricing of pharmaceutical drugs. “Chicago lawyer Robert Green … says [they] could eventually dwarf current tobacco litigation. ‘There’s much more money at stake, if you can believe that,’ he said.” (Mark Curriden, “Drug firms’ price-setting investigated”, Dallas Morning News, Dec. 7, 1999).
October 18 — Historically inauthentic? Book her. Betty Deislinger, age 70, fixed up an 1870s house in a historic district of Little Rock, Ark., but declined to take the burglar bars off the front, the way the preservation code requires. She was arrested, fingerprinted and booked. (Suzi Parker, “Bars bring long arm of the law”, Dallas Morning News, Oct. 14).
October 18 — Yahoo pulls message board. “Within hours of a Miami appellate court’s order that Yahoo and America Online must disclose the identities of eight Web critics who allegedly defamed former Hvide Marine boss J. Erik Hvide, Yahoo shut down the Hvide Marine company’s message board where the offending words were posted. The board, where thousands of messages about the ups and downs at international marine services company Hvide Marine of Fort Lauderdale, Fla., were posted during the past few years, was also removed from the Web, and previously posted messages are no longer accessible.” “It may be a matter of Yahoo deciding they don’t want to create a headache for themselves by continuing this forum that has resulted in litigation,” said one of the lawyers in the case. (Dan Christensen, “Yahoo Pulls Marine Services Company Message Board”, Miami Daily Business Review, Oct. 17; Catherine Wilson, “Anonymous Net Posting Not Protected”, AP/Excite, Oct. 16; John Roemer, “The Battle Over John Doe”, Industry Standard/Law.com, Oct. 13; Slashdot thread on anonymous message-board speech).
October 18 — Birth cameras not wanted. In a recent survey, 40 percent of obstetricians said they had prevented families from using videocameras to record births, and 80 percent of those cited legal concerns. Such videotapes, or edited snippets from them, may be placed before juries in case of later malpractice suits. (Geraldine Sealey, “Lights, Camera, Lawsuit”, ABC News, Oct. 3) (& see Dec. 26).
October 18 — Product liability: Americanization of Europe? An expected European Community directive will expand rights to sue under product liability law, and business is worried about having to face “a whole new continent of potential plaintiffs.” Among ideas being considered are “the introduction of class actions and market-share liability, and the elimination of both the 70 million euro cap on damages and the ‘state-of-the art’ defense.” However, European consumer groups point out that earlier rounds of liberalization have not resulted in sky-high American-style litigation levels: “Even if these latest pro-plaintiff reforms pass, companies still won’t face juries and punitive damages, the most unpredictable aspects of the U.S. system” — not to mention two other significant aspects of the U.S. system, the lawyer’s contingency fee and the failure of costs to follow the event. (Ashlea Ebeling, “Sue Everywhere”, Forbes, Oct. 16).
October 16-17 — George W. Bush on lawsuit reform. The Bush campaign has put up this page explaining the Governor’s point of view on civil justice reform, his record on the issue in Texas, and his plans for tackling it at the federal level if elected (disclosure: this site’s editor has been involved as an advisor to the campaign). (George W. Bush for President official site; Issues; Civil Justice Reform). And: Wall Street Journal lead editorial Monday assails the Democratic Party for its “captivity” to trial lawyers. “Mr. Gore walked into it again when his claimed visit with the FEMA head to inspect fire-damaged Parker County turned out never to have taken place. As the world now knows, he was in Houston for a fund-raiser with the head of the Texas trial lawyers association.” (“The Lawyer Issue”, Oct. 16).
October 16-17 — European roundup. “The rights of pets in divorce cases would be similar to those of children under proposals in Switzerland, where campaigners have 250,000 signatures for two petitions demanding substantial new rights for pets and other animals.” (Claire Doole, “Animals’ rights could make an ass of Swiss law”, Sunday Times (London), Oct. 8). In Britain, where the exemption of police jobs from the Disability Discrimination Act is set to expire in 2004, “police officers with part of a leg missing are likely to be pounding the beat and one-eyed drivers could be at the wheel of pursuit cars in four years’ time,” to the dismay of the Metropolitan Police Federation, which represents rank-and-file officers (James Clark, “Disability law exposes police to one-legged recruits”, Sunday Times (London), Oct. 8; see also Sept. 29). And in France, the resort town of Le Lavandou attempted to cope with a lack of space in its cemetery by passing a law making it unlawful for persons who lack a cemetery plot to die within town limits; the mayor acknowledges that there will be no levying of penalties against those who violate the law by dying without authorization (“Death be not proud”, AP/Fox News, Sept. 21).
October 16-17 — “Is $30,000 an hour a reasonable fee?” Readers of this space are familiar with the controversy in which attorney Peter Angelos is demanding $1 billion for representing the state of Maryland in the tobacco-Medicaid litigation, while the state is trying to get off with paying him a mere $500 million (see Dec. 9 and Oct. 19, 1999). One tidbit of which we had been unaware: “[A]fter a Baltimore Sun lawsuit forced Angelos to disclose his billing records, the public learned that the lawyer (and Orioles owner) had used $12-an-hour lawyers from a temp agency for nearly 25 percent of the hours he billed. From $12 to $15,000 is a markup of 1,250,000 [sic] percent.” (Phillip Bissett (Baltimore Regional Citizens Against Lawsuit Abuse), Washington Post, Aug. 13). Reader A. J. Thieblot of Baltimore points out that the actual markup number, based on the above calculations, was in fact only 125,000 percent, so in fact Angelos “showed restraint … Doesn’t that make you feel better about him?”
October 16-17 — Fed prosecutors chafe at state ethics rules. Two years ago Congress passed a law requiring U.S. Attorneys to obey the ethical rules applicable to lawyers in the states in which they work. The bill was named after its sponsor, Pennsylvania Republican Joseph McDade, who became a critic of overzealous prosecution after the Justice Department targeted him in an eight-year racketeering probe which ended in his acquittal by a jury. The new law is having a major effect in some states: in Oregon, for example, the state supreme court has forbidden all lawyers as an ethical matter to lie, cheat, or misrepresent themselves. Federal prosecutors complain that kind of restriction deprives them of many cherished investigative techniques, but House Judiciary Chairman Henry Hyde (R-Ill.) says he’s not inclined to repeal the McDade law. (Chitra Ragavan, “Federally speaking, a fine kettle of fish”, U.S. News & World Report, Oct. 16).
October 16-17 — Hasty tire judgments. Does Ford’s Explorer suffer a higher rate of tire-related accidents even when equipped with Goodyear tires, as opposed to the Firestones implicated in the recent furor? Last Monday the Washington Post reported that it did, only to report two days later that some of the vehicles in the data base it had been looking at were equipped with Firestones after all. “In its rush to judge the Explorer a deathtrap, the Post engaged in what social scientists call ‘confirmation bias.”” writes Jack Shafer of Slate (“The Washington Post Blows the Blowout Story”, Slate, Oct. 11; Dan Keating and Caroline E. Mayer, “Explorer Has Higher Rate of Tire Accidents”, Washington Post, Oct. 9; “Ford Cites Flaws in Tire Data”, Oct. 11).
Should the tire problem have been obvious from road statistics? It may depend on how you slice those statistics, says mathematician John Allen Paulos: crashes associated with tire failure are so rare as a percentage of all crashes that it can be easy to lose them in the data (“Statistics and Wrongdoing”, ABC News, Oct. 1). Reports of accidents and deaths “linked to” the tires flooded into the federal government’s National Highway Traffic Safety Administration after the furor broke, not because the crash rate had suddenly jumped, but because informants rushed to inform the agency of previously unreported older cases; and the phrase “linked to” itself elides issues of causation that can be resolved only by case-by-case investigation (Dan Ackman, “Tire Deaths Linked To Tough Questions”, Forbes.com, Sept. 7).
Also shedding light on the degree to which the origin of the tire problems remains less than fully obvious: “[p]laintiff’s lawyers have been trading theories, information and documents for more than a year in lawsuits related to the tires”, the news-side Wall Street Journal‘s Milo Geyelin reported in August, but “so far they have yet to reach a consensus”. Some think the lower tire pressure recommended by Ford is a key factor, others downplay its significance; there’s no agreement as to whether the problem is specific to tires manufactured at Firestone’s Decatur, Ill. plant; and so on. (Milo Geyelin, “Theories Mount Regarding Root of Tire Defects”, Wall Street Journal, Aug. 23 (fee-based archive)). See also Melanie Wells and Robyn Meredith, “Nothing Comes Between Me and My SUV”, Forbes.com, Oct. 16; FindLaw page on tire litigation.
October 16-17 — “Judge Lenient With Perjurer, Cites Clinton Case”. “Chief U.S. District Judge James A. Parker told prosecutors last week that it was unfair of them to ask for a strict prison sentence in a New Mexico perjury case, pointing out that President Clinton recently asked for leniency for lying under oath.” Ruben Renteria Sr. had been acquitted of drug conspiracy but was convicted on a count of perjury related to the investigation. (Guillermo Contreras, Albuquerque Journal, Oct. 14) (via Drudge).
October 13-15 — Place kicker awarded $2 million. “A jury awarded a female place-kicker $2 million in punitive damages Thursday, ruling Duke University cut her from the team solely because of her gender.” Heather Sue Mercer, a walk-on player, had sued for damages that included emotional distress, humiliation and periods of depression after being dropped from the college team. Team members testified that Mercer was not a powerful kicker; the jury voted her $1 in compensatory damages and $2 million in punitives. (“Jury rules Mercer was cut because of gender”, AP/ESPN, Oct. 12; Reuters/Yahoo; “Ex-coach says he admired kicker’s ‘spunk'”, AP/ESPN, Oct. 11; “Woman sues Duke over being cut from team”, Oct. 4). Update Dec. 30, 2002: appeals court overturns punitive damage component of verdict. See also Nov. 3-5 commentary.
October 13-15 — (Civil court) policeman to the world. Among the many foreign powers and principalities considered suitable targets for correction by way of lawsuits in American courtrooms: perpetrators of ethnic atrocities in Bosnia (“Jury returns $4.5 billion verdict against ex-Bosnian Serb leader Karadzic”, AP/CNN, Sept. 26); Chinese dictators who repressed pro-democracy demonstrators in Tienanmen Square (Edward Wong, “Chinese Leader Sued in New York Over Deaths Stemming From Tiananmen Crackdown”, New York Times, Sept. 1); Cuba, Iran, and other regimes that sponsor acts of terrorism in third countries (“Senate votes to allow compensation for terror victims, re-authorizes Violence Against Women Act”, CNN.com, Oct. 11; Seth Lipsky, “Justice for Alisa”, Opinion Journal (WSJ), Sept. 27); and OPEC, for fixing the international price of oil, which would become an offense suable in American courts under a bill okayed by a Senate panel (“Senate panel bill would allow lawsuit against OPEC”, Reuters/FindLaw, Sept. 21). Few of the American backers of these legal actions have been eager to point out the mirror-image corollary they would logically entail, namely suits against our own government and its elected officials in the courts of unfriendly foreign nations.
October 13-15 — Man sues over “Ladies’ Nights”. Christopher Langdon, a 48-year-old businessman, has filed federal lawsuits against nearly a dozen Orlando bars saying that their offering of “Ladies’ Night” discounts to women constitutes unlawful sex discrimination. He wants up to $100,000 and an end to the promotions. (Tyler Gray, “Man makes his move on ladies night”, Orlando Sentinel, Oct. 10).
October 13-15 — “Philly looking for a few good lawsuits”. More reaction to the plans of Philadelphia’s city solicitor Kenneth Trujillo, a class-action specialist, to establish a special legal strike force to hit up business defendants for money through offensive litigation (see Oct. 5). Quotes our editor (Patrick Riley, Fox News, Oct. 10).
October 13-15 — “Stop driving my car”. If you live in one of five states — New York, Rhode Island, Connecticut, Maine, and Iowa — “vicarious liability” laws make you automatically liable for the driving of anyone to whom you lend your car, even if the borrower has a clean record and there are no other advance signs of trouble. (In other states, lawyers who want to sue you as the owner must allege that you were at fault in some way.) The laws also apply to rent-a-car companies, putting them in an especially tough position since laws in some of the same states make it virtually impossible for them to turn away most prospective renters (James T. Riley, Citizens for a Sound Economy, Oct. 2).
October 12 — Wal-Mart wins female Santa case. “The Kentucky Commission on Human Rights has ruled that a Wal-Mart in Morganfield did not discriminate against Marta Brown when it forbid her from portraying Old St. Nick in December 1995.” (Chris Poynter, “Wal-Mart had right to stop female Santa”, Louisville Courier-Journal, Oct. 10).
October 12 — “All about Erin”. “It took a few months for the investigative journalists to overtake the Hollywood dream spinners, but by now it’s been pretty well established: What got left out of the blockbuster movie Erin Brockovich (now available at a video store near you) was in many ways juicier than what got put in.” Our editor’s latest column in Reason explains (October). Also: Michael Fumento of the Hudson Institute returns to the warpath (“Errin’ Brockovich”, American Outlook, Summer).
October 12 — Forfeiture-reform initiatives. Voters in three states, Massachusetts, Utah and Oregon, will consider initiatives that would curb the controversial law enforcement technique. “The ballot measures would, in effect, require law enforcement to prove that a crime had occurred before property could be forfeited. And drug money, instead of going back to police, would be sent to a public education fund in Utah and drug treatment funds in Oregon and Massachusetts.” (Karen Dillon, “Ballot initiatives seek to change forfeiture laws in three states”, Kansas City Star, Oct. 8; see May 25). National Post columnist David Frum asks some basic questions about the drug war in Canada and the U.S. (“Target ‘victims’ to solve the drug problem”, Sept. 9). And the name of Lebanon, Tennessee resident John Adams, 64, was added to the list of “collateral damage” drug war casualties when police officers mistook his house for one cited in a drug warrant, burst in and shot him dead. “It was a severe, costly mistake,” said the Lebanon police chief. “They were not the target of our investigation. We hate that it happened.” (Warren Duzak, “Innocent man dies in police blunder”, Nashville Tennesseean, Oct. 6).
October 12 — Political notes: friend to the famous. “Our Managing Partner John Eddie Williams [one of the Big Five trial lawyers who are splitting a $3.3 billion fee for representing Texas in the tobacco-Medicaid litigation — see May 22, Sept. 1] and his wife Sheridan welcomed the first lady to their Houston home in August . Fifty guests enjoyed dinner with Hillary Rodham Clinton, who spent two days in Texas raising money for the Democratic Senate Campaign Committee and her own exploratory committee. The Williams’ home has been visited in the past by other well known workers on Capitol Hill including Vice President Al Gore, Sen. Edward Kennedy and Sen. Barbara Boxer. Ms. Clinton said she would be pleased to be an adopted senator for Texas Democrats.” (“Hillary Rodham Clinton Visits Williams’ Home”, from the Williams, Bailey law firm’s “Letter of the Law” newsletter, Oct. 1999 (displays correctly in IE, has trouble in Netscape — Netscape users might try “View Source”)) (top Texas soft money donors).
October 11 — Brownout, Shivers & Dim, attorneys at law. “[T]he nation’s energy producers, even those proposing to meet the surging demand for electricity with the cleanest types of power plants, find themselves stymied by environmental groups concerned about pollution and damage to natural resources.” Hydroelectric plants, bird-menacing windmill farms (“Condor Cuisinarts”) and natural-gas-fueled turbines (ugly-looking) have all run into opposition from enviros, and don’t even think of asking them to consider coal or nuclear. “‘Bottom line,’ says Sen. Slade Gorton, a Washington Republican who often sides with the power industry, ‘whatever suggestion you make, they find something wrong with it and bring more lawsuits.'” (Jim Carlton, “Electricity Crunch May Force The U.S. Into Tough Tradeoffs”, Wall Street Journal, Oct. 10) (subscriber-only site).
October 11 — Curse of the dummy’s kiss. In Hammond, Indiana, Brenda Nelson has filed a federal lawsuit against the American Red Cross, saying she “contracted herpes after giving mouth-to-mouth resuscitation to an improperly sanitized mannequin.” (“Woman sues Red Cross, alleging she contracted herpes from CPR dummy”, AP/FindLaw, Oct. 10). (Update Dec. 7: she drops case)
October 11 — New Hampshire chief justice acquitted. By a wide margin, the Granite State’s senate declined to convict the state’s highest judicial officer, David Brock, on any of several counts against him (see April 5). (“Brock acquitted overwhelmingly”, AP/Concord Monitor, Oct. 10).
October 11 — NLRB lurches left. The National Labor Relations Board, according to Republican and business critics, acts as if it wants to yank labor law as far left as it can before the Clinton term ends. Among its more dramatic recent decisions were one in July making it a labor law violation to question a nonunion worker in a disciplinary context without allowing him to have present a co-worker of his choosing, and one in August facilitating the unionization of temporary workers (Michael D. Goldhaber, “Is NLRB in a Pro-Labor Mood?”, National Law Journal, Oct. 4; Julie Kay, “The Buddy System”, Miami Daily Business Review, Sept. 8). Meanwhile, a General Accounting Office study has found that businesses undergoing labor strife are six and a half times as likely as other businesses to be made the targets of inspection by the Occupational Safety and Health Administration, bolstering employer suspicions that unions often use OSHA inspections as a weapon to make employers’ lives difficult (“Worker Protection: OSHA Inspections at Establishments Experiencing Labor Unrest”, GAO, August (PDF)).
October 11 — Welcome visitors. Among sites that link to Overlawyered.com are the Clatsop County (Ore.) Coastal Voice, the Zoh Hieronymus show, the CBEL.com alternative media guide, Flangy, iRights, SkeptiNews and What’s On It For Me? weblogs, Cindy Furnare’s Conservative Education Forum, Wisconsin Democratic Congressional candidate Mike Clawson (MikeforCongress.com), the Alexander County (N.C.) Republican Party, the Idaho, Illinois and Wisconsin Libertarian parties, and firearms sites The Gunnery, PaulRevere.org, RKBA Legal Docket, and SaferGunsNow.org.
October 31 — Foster care abuses: taxpayers to owe billions? Injury lawyers plan a major push to develop damage lawsuits against government on behalf of children harmed under foster care, the New York Times reports. Florida tobacco-fee magnate Robert Montgomery (see Apr. 12) and other movers and shakers are encouraged by “court rulings that make government agencies easier to sue and sizable jury awards in foster care cases”. A lawyer with the National Center for Youth Law, part of the network of legal services groups that philanthropic foundations, organized lawyerdom, and taxpayers have all had occasion to support generously over the years, is cited saying that “groups like his had become more open to alliances with personal injury lawyers”. Suits often allege that different placement choices or more vigorous intervention by social workers might have prevented beatings, neglect or molestation of youngsters in foster care. States fear taking the cases to trial: “They’re very difficult cases to defend in front of juries because juries often have the benefit of 20-20 hindsight,” says a lawyer for the state of Washington, where “government payouts in civil cases in general have quadrupled in six years”. “Some officials, including Kathleen A. Kearney, the secretary of the Florida Department of Children and Families, say such litigation unfairly detracts from continuing efforts to improve child welfare, diverting resources that legislatures, not courts, should control.” (Nina Bernstein, “Foster-Child Advocates Gain Allies in Injury Lawyers”, New York Times, Oct. 27) (reg). See also Aug. 23-24 (billions demanded in lawsuits over Canadian residential schools).
October 31 — Tales from the tow zone. “A Dallas-area jury has ordered Chrysler Corp. and a local dealership to pay $83.5 million to a Texas couple who charged that the defendants misled them on the towing capacity of the Dodge Ram pickup truck they bought.” The couple did not suffer physical injury from the towing-force deficit, but argued that because the vehicle turned out not to be strong enough to pull horse trailers, they lost their equine transport business and the husband subsequently suffered depression. Nearly all of the award, $82.5 million, was in punitive damages; Texas’s limits on that category of damages, much deplored by trial lawyers, make it likely that the actual payout to the couple will not exceed $2.4 million, assuming they prevail in Chrysler’s planned appeal. (Margaret Cronin Fisk, “Jury Tags Chrysler for $83 Million”, National Law Journal, Oct. 5).
October 31 — Fat tax proposed in New Zealand. The proposal, floated by public health activists down under in the country’s Medical Journal, got a cool reception from the Kiwi health minister as well as from people in the farming and meat businesses. The idea was hailed as worth considering, however, by a medical adviser to the country’s Heart Foundation. It would apply a saturated-fat tax to such food items as butter, cheese, meat and milk, the “full-cream” variety in particular (Al Gore isn’t the only one campaigning against the “top one percent”). (Martin Johnston, “Fat-tax plan to reduce disease”, New Zealand Herald, Oct. 30).
October 30 — Netscape “Best of ‘What’s Cool'”. Last month Overlawyered.com was one of the picks on Netscape’s popular “Cool Sitings of the Day”, and this weekend we were featured in its “Best of ‘What’s Cool'”, with another flood of newcomers resulting.
October 30 — Ohio high court races. Buckeye State voters next week will decide on the hotly contested re-election bid of Democratic state supreme court justice Alice Robie Resnick, a key member of the court’s 4-3 liberal majority; also seeking re-election is Republican Deborah Cook, who has voted on the opposite side from Resnick in several controversial cases. Bone of contention number one is last year’s decision in which Resnick and three other justices relied on a strained reading of the state constitution to strike down the liability reforms passed by that state’s legislature (see Aug. 17 and Aug. 18, 1999), a move highly welcome to the Ohio Academy of Trial Lawyers, which has supported Resnick’s re-election. Also at issue are a series of other Ohio Supreme Court decisions that have outraged the state’s business community, including a line of cases holding that commercial auto insurance policies by which companies cover their employees’ work-related driving can be made to pay for accidents suffered by the employees and their families in their own cars on their own time. (Scott-Pontzer v. Liberty Mutual (Ohio PIA); Charles T. McConville, “The Ohio Supreme Court, Your Business and Its Insurance”, Ohio Matters (Ohio Chamber of Commerce), Nov./Dec. ’99; Ohio Chamber of Commerce Court 2000 page). In some ways the hard-fought Ohio contest is the mirror image of the one in Michigan, where trial lawyers and labor unions have mounted a major effort to knock off conservative justices Clifford Taylor, Robert Young and Stephen Markman in next week’s vote (see Aug. 25-27, May 9, Jan. 31).
MORE: editorials, Cincinnati Post, Sept. 30, and Cleveland Plain Dealer, Oct. 29; Spencer Hunt, “Business, GOP work to boot Resnick”, Cincinnati Enquirer, June 25; William Glaberson, “A Spirited Campaign for Ohio Court Puts Judges on New Terrain”, New York Times, July 7 (reg); websites of Justice Alice Robie Resnick (incumbent) and challenger Terrence O’Donnell, Justice Deborah Cook (incumbent) and challenger Tim Black. The Ohio Chamber of Commerce has come under fire for supporting a group that has run hardball advertising against Resnick: Lee Leonard, “Sideswiping political ads ought to be ruled out of bounds”, Columbus Dispatch, Oct. 23; Randy Ludlow, “Resnick attack is ugly”, Cincinnati Post, Oct. 21 (DURABLE LINK).
October 30 — Cornfield maze as zoning violation. Zoning authorities in Snydersville, Pa. have sent a violation notice to father and son farmers Jake and Stuart Klingel. Their offense? Carving a maze through their cornfield and opening it to the public. (“Going in Circles?”, AP/Fox News, Oct. 6).
October 30 — $20 million for insolvency trustee? “Former Securities & Exchange Commission chairman Richard Breeden, 50, could make more than $20 million as the court-appointed trustee of Syracuse’s fraudulent, failed Bennett Funding Group. While a judge has the final say, Breeden could get a statutory 3% of what he recovers for creditors, less $642,000 in annual salary and expenses, and less a one-time $250,000 bonus. To investors facing an 82% haircut, he snaps, ‘I’m worth every penny of it.'” (Dorothy Pomerantz, “The Informer: Make That Breeden Funding”, Forbes, Sept. 4).
October 27-29 — “Lawyer take all”. Just as lawyers used to be barred from taking contingency stakes in their clients’ lawsuits lest they be tempted to push overly aggressive positions on their behalf, so they used to be discouraged from taking equity stakes in businesses they advised, lest they be tempted to assist in regulatory evasion or sharp financial practices. “In time, the dollar signs got bigger than the ethical misgivings.” Now, following major windfalls obtained by California tech lawyers who took holdings in clients’ stock, big law firms on the East Coast are rushing to emulate the practice. (Chana Schoenberger, Forbes, Oct. 16).
October 27-29 —“Yankees Must Step Up to Plate in Civil Rights Action”. A judge has ordered to trial a case filed against the New York Yankees by a black woman who says she was told she could not enter the stadium restaurant wearing only a tank top, although once inside she noticed white women dressed in that manner. “The club’s dress code, which is printed outside the entrance to the club and on the back of the admission pass, prohibits the wearing of ‘tank tops . . . thongs or any other abbreviated attire.'” Lawyers for the Yankees said the plaintiff, V. Whitney Joseph, was let into the restaurant after she went back to her car and put on a t-shirt, and said the brief inconvenience should not be enough to support a federal lawsuit, but a judge said Joseph should be allowed to reach a jury with her claim that the dress code had been inconsistently applied. (Michael A. Riccardi, New York Law Journal, Oct. 20).
October 27-29 — Judge rules against Tattered Cover. Fears about free expression notwithstanding, a Denver judge has ruled that the city’s famed Tattered Cover book store can be forced to turn over customer purchase records to narcotics police seeking to identify the owner of two books on drug manufacturing found at the scene of an illegal methamphetamine laboratory (see April 28). (Susan Greene, “Judge: Cops can seize bookstore records”, Denver Post, Oct. 21).
October 27-29 — Patients’ Bill of Wrongs. “The ground is thus set for an uneasy alliance between the physicians who staff HMOs and MCOs and health care consumer organizations. Both, for different reasons, would like to neuter the managed care organizations by removing from their management teams the power to control physician practice. Yet by so doing, they do more than remove excessive intervention. They necessarily compromise, perhaps fatally, the critical cost containment functions that these organizations must supply if they are to survive at all. . . . In the short run, physicians will love the creation of a system that promises a restoration of their autonomy and insulates them from the costs of their mistakes after they settle their case out cheaply. . . . But in truth a rather different agenda is at work here, which becomes evident from looking at the one exclusion to the proposed Patients Bill of Rights. It seems not to apply to the United States Government in its role as the provider of health care services through Medicare or Medicaid. The proposals therefore are designed to cripple the private programs which compete in the political arena with government-supplied health care.” (Richard Epstein (University of Chicago Law School), “Managed Care Liability”, Manhattan Institute Civil Justice Memo #39, Sept.)
October 26 — Lab mice paperwork. “In a couple of years, medical progress could come to a screeching halt when it slams up against new regulations to be written by the Agriculture Department. The regs will extend the Animal Welfare Act to the millions of mice, rats, and birds used in lab experiments. When that happens, researchers will have to file papers for each individual critter. By the time they get through with the paperwork they might have just enough time to turn out the lights before going home.
“This all results from a settlement the Department made with the Alternatives Research and Development Foundation (an arm of the Anti-Vivisection Society) and Kristine Gausz, a psychology student at (really) Beaver College. Ms. Gausz said in an affidavit that the sight of rats being ‘subject to deplorable living conditions’ was ‘an assault on her senses’ that left her ‘personally, aesthetically, emotionally, and profoundly disturbed.’… Perhaps the next thing medical researchers should try to find is a cure for the common lawsuit.” (“Leash lawsuit” (editorial), Richmond Times-Dispatch, Oct. 23).
October 26 — Drunk-driving standards nationalized. Dealing a blow to principles of local control as well as rural hospitality, the federal government will arm-twist all states into adopting 0.08 blood alcohol standards by 2004 under legislation just signed by President Clinton as part of a transportation bill. “The .08 percent limit is clearly only a way station on the road to making life miserable for social drinkers. MADD’s [Mothers Against Drunk Driving’s] Web site now calls for lowering the BAC limit to .05 percent,” writes Providence Journal columnist Froma Harrop (“Phonies for .08 – Harassment of social drinkers”, Oct. 8; “Clinton signs bill to lower drunken driving standards”, AP/Dallas Morning News, Oct. 23).
October 26 — New unfairness for old. Don’t assume voters or politicians are anti-gay just because they harbor doubts about setting up sexual orientation as a new category in job bias law, as would happen under the proposed Employment Non-Discrimination Act (ENDA). “Why does the term ‘special rights’ have such political potency? Because by now most people have had personal experience with the way employment discrimination laws operate. Members of protected classes are not equal, they’re super-equal, enjoying extra job security and other job-related privileges not afforded the average worker.” Quotes our editor (Robyn Blumner, “Laws Aimed at Correcting Discrimination Have Created New Types of Unfairness”, Tribune Media/Salt Lake Tribune, Oct. 20). See also Nigel Ashford, “Equal Rights, Not Gay Rights“, reprinted at Independent Gay Forum.
October 25 — “Power lawyers may sue for reparations”. More details about the plans of Willie Gary and other lawyers to file lawsuits demanding trillions of dollars in black reparations (see Letters, Oct. 19). Planned are “a series of suits against the U.S. government, states, corporations and individuals who continue to benefit from slavery’s aftermath.” Participants “met last month in Washington at Transafrica, a lobbying group that monitors U.S. policy in Africa and the Caribbean, and plan to continue meeting monthly until a strategy is formed.” Participants include Richard Scruggs, Johnnie Cochran, Jr., Harvard Law’s Charles Ogletree, author Randall Robinson, “Alexander Pires of Washington, who won a $1 billion settlement for black farmers in a discrimination case against the U.S. Department of Agriculture; … and Dennis Sweet of Jackson, Miss., who won a $400 million settlement in the fen-phen diet drug case last year.” Sweet “also plans to sue history book publishers that give blacks short shrift,” which suggests that he himself may give the First Amendment short shrift. “We are a nation of litigators. That’s what we do. We go to court,” said Harper’s editor Jack Hitt. (Amy Martinez, Palm Beach Post, Oct. 23).
October 25 — “Laptop lawsuit: Toshiba, feds settle”. Piling on the $1 billion-plus class action settlement, the U.S. government is now extracting money from Toshiba over its flawed laptops. Still in very short supply: evidence that the glitch caused data loss in any real-world situations (Reuters/ZDNet, Oct. 13, with reader discussion).
October 25 — South Carolina tobacco fees: how to farm money. Lawyers who represented the state of South Carolina in the Medicaid-recoupment litigation will get a whopping $82.5 million; it wasn’t easy to argue that the mostly pro-tobacco Palmetto State had been instrumental in nailing the cigarette industry, but the lawyers found a golden rationale for large fees in their having been assigned to speak up for the interests of tobacco farmers like those in South Carolina. Since lawyers representing late-to-sue North Carolina, Kentucky and Tennessee (see May 2) are also reportedly making the we-represented-farmers argument in their own fee quest, the tobacco caper may go down in history as the most richly compensated instance ever of farmer “representation” — with no need for any control of the attorneys by actual farmers, of course. The secretive arbitration panel voted along its now-familiar two-to-one lines, with dissenter Charles Renfrew charging that the award was a windfall and “grossly excessive”, but as usual being outvoted by the other two panel members. (“Panel says $82.5 million lawyers’ fees are fair”, AP/CNN.com, Oct. 24).
October 24 — Turn of the screw. Revealing article in Philadelphia Inquirer magazine tells the story in detail of how lawyers whipped up mass litigation against companies that make screws used for bone-setting in spinal and other orthopedic surgery, alleging that the devices caused all manner of dreadful injuries. As so often the mass client recruiting got under way in earnest after a scary and misleading report on network TV, this time on ABC’s “20/20”, attacked the product as unsafe. Since most orthopedic surgeons continued to favor the screws’ use, lawyers turned for assistance to a Texas dermatologist who had gone to prison and lost his medical license in the 1980s for illegal distribution of prescription drugs, and who after release had set up shop as a go-between for lawyers who needed medical experts. After this physician “attended an organizational meeting with plaintiffs’ lawyers in Philadelphia, about 20 lawyers with bone screw cases enlisted his services,” and he proceeded to locate for them a Florida orthopedic surgeon who then cranked out about 550 opinions for the lawyers’ use — without actually examining the patients on whose behalf they were suing. “Invariably, [he] concluded, with scant explanation, that bone screws caused injury.” Eventually, Judge Louis Bechtle barred all 550 of the Florida doctor’s reports after one of the doctor’s employees testified that she’d been ordered to destroy tapes of telephone calls in which the Texas dermatologist/expert recruiter had dictated the language of the medical reports he expected the doctor to submit.
According to other sworn depositions, plaintiffs who rejected lawyers’ entreaties to sue were surprised to learn that cases had been filed in their names anyway; this happened, for example, to patients from California, Pennsylvania and Minnesota who did not blame the screws for their health problems. “There were no consequences for the lawyers who filed those suits.” Most of the story is told through the eyes of the best-known defendant in the cases, a company named Sofamor Danek, which chose to fight rather than pay; eventually it enjoyed outstanding success in repelling the suits, losing only one of 3,200 cases it faced, that one currently on appeal. But its vindication has come at a steep cost: $75 million in legal expenses, and who knows what unquantifiable costs. No wonder one of its competitors, AcroMed, gave up and agreed to pay $100 million to resolve 5,000 of the actions. (L. Stuart Ditzen, “The bone screw files”, Inquirer magazine (Philadelphia Inquirer), Aug. 27; David F. Fardon, M.D., “President’s Message”, North American Spine Society, Jan. 1997; “Third Circuit Denies Request for Mandamus Relief in Pedicle Screw Suits”, NASS, Jan. 1998).
MORE: The Health Research Group of Ralph Nader’s Public Citizen established a clearinghouse for plaintiff’s lawyers suing screw manufacturers, among other clearinghouses it runs for plaintiff’s lawyers, and whose goals include that of “generat[ing] media attention for the pertinent issue”. Among support groups for those who believe themselves victimized by the devices is Pedicle Screw’d. The North American Spine Society, a professional organization, was named as a defendant in many lawsuits because of its educational seminars on the use of screws, which lawyers charged were really a conspiracy to promote the devices.
October 24 — Monitor vote fraud, get sued for “intimidation”. Although ballot box irregularities, 109-percent precinct turnouts and other indicators of vote fraud continue as a very definite problem around the country, “anyone who combats vote fraud comes in for abuse. The Justice Department has become expert at raising cries of ‘voter intimidation’ at any attempt to monitor polling places. Last week Justice dispatched investigators to Fort Worth, Texas, merely because a political activist there distributed leaflets alleging Democrats were casting absentee ballots on behalf of shut-in voters. When the Miami Herald won a Pulitzer Prize for its reporting on the fraud in that city’s mayoral election, the Pulitzer jury noted it had been subject to ‘a public campaign accusing the paper of ethnic bias and attempted intimidation.’ Local officials who’ve tried to purge voter rolls of felons and noncitizens have been hit with nuisance lawsuits alleging civil-rights abuse.” (John Fund, “Political Diary: Phantom Voters”, Opinion Journal (WSJ), Oct. 23).
October 23 — Election roundup. “If you’re a swing voter, vacillating between Bush and Gore, here’s one compelling reason to vote for the former: tort reform,” writes New York Press editor Russ Smith in his “Mugger” column. He cites the recent hot-pickle case (see Oct. 10) and says the “simple solution” is loser-pays (“Gore’s Next Move?”, Oct. 16 (see item #2). “If trial lawyers had a dashboard saint, it would be Ralph Nader“, but this time around they’re not giving him money, lest they take votes away from their favorite: despite Gore’s selection of a running mate with strong legal reform credentials, “trial lawyers are so anxious to see the vice president elected, I doubt very seriously if [Lieberman] will make one bit of difference,” says ATLA president Fred Baron. (Bob Van Voris, “The Politics of the Practical”, Corporate Counsel/Law.com, Oct. 19). Governor Bush’s proposal to protect educators against needless lawsuits wins applause from New York Post columnist Arnold Ahlert (“Dubya Stood Up To Parents, Too”, Oct. 20). If Vice President Gore in his current demagoguish attack-mode were handed a big bill for his child’s orthodontia, he might start railing against “Big Dentistry”: “In the end, Gore’s cartoonish view of big business does a disservice both to him and to the American people. He knows life is more complicated than he’s letting on,” write Steven Syre and Charles Stein of the Boston Globe (“Gore proves big on bashing big business”, Sept. 28). And in West Virginia, where asbestos trial lawyer Jim Humphreys had previously been thought a prohibitive favorite for a U.S. House seat after spending an eye-popping $5 million on his campaign, Republican candidate Shelley Moore Capito, daughter of a former governor, is putting up a surprisingly strong race and might pull off an upset in what’s shaping up as an unusually strong year for the GOP in the mountain state (Matthew Rees, “Will West Virginia Go Republican?”, Weekly Standard, Oct. 23, not online).
October 23 — Wheelchair marathon suit. After getting sued last year, the New York Road Runners Club, which organizes the New York City Marathon, agreed to establish a separate division of the race for entrants in wheelchairs, and award trophies to the winners. That wasn’t enough to keep it from being sued again, this time by six disabled entrants who complained that the club violated the Americans With Disabilities Act “by moving the marathon start time for 60 disabled people not in wheelchairs from 8 a.m. to 8:40 a.m.”, a less convenient time for some entrants since it might require them to finish after dark. The man coordinating the wheelchair side of the 26.5 mile event, which will be held November 5, called the new lawsuit “unbelievable” and “truly frivolous.” (“Lawyer Criticizes ‘Disabled’ Suit”, AP/FindLaw, Oct. 19).
October 23 — No breast cancer link. A major federal study recently helped lay to final rest fears of an association between silicone breast implants and breast cancer, yet the federal agency in charge seems to have gone out of its way not to publicize the reassuring results. (Denise Dowling, “Covering up the breast”, Salon.com, Oct. 9). See also Nov. 29; Stuart Bondurant et al, “Safety of Silicone Breast Implants”, Institute of Medicine, 1999; “Off the Lawyers’ Reservation” (profile of Kathleen Anneken), The American Enterprise, Sept./Oct. 1998).
October 20-22 — Product liability criminalized? Green presidential candidate Ralph Nader has called for criminal prosecutions in the Firestone case, where failed tires have been blamed for more than 100 highway deaths. “A Harvard-Brookings Institution study estimates that the downsizing of vehicles caused by fuel economy standards results annually in 2,200 to 3,900 deaths,” notes a Detroit News editorial. “Consumer advocates like Mr. Nader support these fuel efficiency standards and want them increased, which could kill more people. The question becomes: Should certain consumer advocates be accused of criminal neglect?” (“How Many Deaths Are Truly Criminal?”, Detroit News, Oct. 14). Cartoonist Henry Payne, of the same paper, has a similar take on the matter of federal mandating of airbags, which turned out to harm numerous children: Oct. 12 (via Junk Science).
The U.S. Congress has rushed to act before its adjournment on a new federal law criminalizing some product safety matters, but the Federalist Society Criminal Law & Procedure Group earlier this month sponsored a discussion on Capitol Hill which took a dim view of the idea. “Most criminal statutes punish only where there is evidence beyond a reasonable doubt that a prohibited act was performed with mens rea, the guilty mind. … the proposed legislation is broad in its importation into penal law of the state of mind and knowledge standards of civil products liability law,” argued George Terwilliger (White & Case). Michael Krauss (George Mason U.) pointed out that the increased use of criminal charges in aviation accidents is now seriously hampering investigations after crashes given participants’ reluctance to cooperate and right to invoke the Fifth Amendment against having to testify in cases of criminal (as opposed to civil) jeopardy (see Sept. 6). Legislation to stiffen criminal penalties in product cases has passed both Houses this month, though its terms do not go as far as some of the earlier proposals. (“U.S. House Passes Tire Legislation”, Reuters/FindLaw, Oct. 11). See also Bob Van Voris, “Tire Deaths: Criminal Acts?”, National Law Journal, Sept. 11.
October 20-22 — CueCat’s legal claws. The CueCat is a new little gadget that works on the principle of a personal barcode scanner; its maker has sent it out free to subscribers of Forbes and Wired, Radio Shack catalogue customers, and others, for the purpose of making advertising more interactive (you scan a barcode on the ad, and a related webpage comes up in your browser). Realizing that a working personal barcode scanner would have many uses other than ad-linking, Linux programmers promptly reverse engineered the device and published code which makes the CueCat usable for other scanning tasks, such as keeping inventories. CueCat’s maker, a company called Digital Convergence, objects to the reverse engineering and has also made legal rumblings hinting that in its view ordinary consumers may not have a right to use the device for purposes other than the intended one — even though the general rule is that if someone sends you an item through the mails for free, you’re at liberty to use it as you wish. (Neil McAllister, “The Clause of the CueCat Legal Language Could Shut Down Hardware Tinkerers”, SFGate, Oct. 11).
October 20-22 — Sweepstakes, for sure. Last month class action lawyers extracted a $33 million settlement from American Family Publishers, plus $8 million in legal fees, over allegedly deceptive practices in its magazine-selling sweepstakes. “Refunds will be distributed among the more than 143,000 people who filed claims. The refunds will be allocated in proportion to the claimants’ purchases in excess of $40 per year or ‘their total purchases influenced by the belief that a purchase was either necessary to win or enhanced their chances of winning,'” though it is not explained how it will be possible to verify claimants’ self-reports of having been influenced by such beliefs. Among the plaintiff’s-side law firms expected to split the fees are the Belleville, Ill. firm of Steven Katz (see Nov. 4, 1999) and San Francisco’s Lieff, Cabraser. Time Inc., a defendant in the action and the owner of sweepstakes firm Magazine Associates, will be footing the bill; American Family Enterprises is in Chapter 11 bankruptcy. (Mary P. Gallagher, “Sweepstakes Class Action Settles for $33M, and $8M in Legal Fees”, New Jersey Law Journal, Sept. 19).
October 20-22 — ABA as liberal lobby. Boston Globe columnist Jennifer Braceras says it’s past time to end the American Bar Association’s gatekeeper status in accrediting law schools: “the ABA is not a trade association dedicated to preserving the integrity of the legal profession [but] a political lobbying group that represents the interests of a small, but powerful, liberal elite.” (“Call the ABA what it is: a liberal lobbying group”, Oct. 19).