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“Halliburton”, gang rape, and fear of arbitration: the Jamie Leigh Jones case

(Update, December 16: And welcome, Consumerist readers. For more on the anti-consumer campaign against arbitration, see the Overlawyered arbitration section. Consumerist’s headline “Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free” is entirely false. Aside from the fact that it does not appear the alleged rapists worked for Halliburton, the issue of whether Jones is contractually obligated to arbitrate her employment dispute with her employer is entirely unrelated to whether the government underinvestigated a criminal complaint against rapists. They are two entirely separate issues. It’s not the first time that Consumerist has reprinted misleading arguments against arbitration—a shame, because mandatory binding arbitration helps consumers, and Consumerist should care more about consumers than the trial lawyers who are lobbying for an anti-consumer law.)

In February 2006, Jamie Leigh Jones filed an arbitration complaint, complaining that, for her administrative assistant job with KBR in the Iraq Green Zone, she was placed in an all-male dorm for living arrangements, and a co-worker sexually assaulted her. (KBR says the co-worker claimed the sex was consensual, though Jones claims physical injuries, such as burst breast implants and torn pectoral muscles, that are plainly not consistent with consensual sex. The EEOC’s Letter of Determination credited the allegation of sexual assault.)

Fifteen months later, after extensive discovery in the arbitration, Jones, who lives in Houston, and whose lawyer is based in Houston, and who worked for KBR in Houston, sued KBR and a bunch of other entities (including Halliburton, for whom she never worked, and the United States), in federal court in Beaumont, Texas. The claims were suddenly of much more outrageous conduct: the original allegation of a single he-said/she-said sexual assault was now an allegation of gang rape by several unknown John Doe rapists who worked as firemen (though she did make a claim of multiple rape to the EEOC, though it is unclear when that claim was made); she claims that after she reported the rape, “Halliburton locked her in a container” (the EEOC found that KBR provided immediate medical treatment and safety and shipped her home immediately) and she threw in an allegation that a “sexual favor” she provided a supervisor in Houston was the result of improper “influence.” (But she no longer makes the implausible claim that she was living in an all-male dorm in Iraq.)

The US got the claim dismissed quickly (Jones hasn’t yet followed the appropriate administrative claims procedure); the case was transferred back to Houston where it belonged (the trial lawyer’s ludicrous brief in opposition didn’t help). But the fact that the defendants are pointing out that the lawsuit over a pending arbitration violates 28 U.S.C. § 1927 and are asking for the court to mandate only one single proceeding in arbitration rather than a multiplicity of parallel proceedings, is now being treated as a cause célèbre by the left-wing blogosphere in its campaign against the contractual freedom to arbitrate. (Note that two elements explicitly designed to arouse the ire and inflame the passions of the left—Halliburton and gang-rape—only came about after Jones switched attorneys.)

The Public Citizen blog complains that “the allegations of corporate and governmental misconduct will never see the light of day” in arbitration. Which is absurd:

1) For crying out loud, her case is on 20/20, which, as is its ken, happily unquestioningly gives the plaintiffs’ opening statement in handy manipulative video newsertainment form without mentioning any of the counterevidence. That sort of widespread publicity is hardly the lack of “light of day.” (Update, Dec. 15: the KBR arbitration procedure provides a transcript without confidentiality restrictions, permitting exactly the same publicity as an open court proceeding.)
2) If the government fails to offer Jones an adequate settlement for their alleged bungling of the criminal investigation, she has recourse under the Federal Tort Claims Act against the federal government—though she likely will not have any more recourse against them than any other criminal victim does when the government fails to protect them against crime or prosecute the criminal.
3) If the court system is about having recourse for injuries, she has that recourse. The judicial system is not for public storytelling; if you want to send a message, use Western Union (or ABC News, as the case may be).

20/20 repeats the meaningless claim that “In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it”—meaningless because (1) it doesn’t include the cases that settle before arbitration with a favorable result to the employee and (2) there’s no comparison with how well such employees would do in the far more expensive forum of litigation (where the vast majority of employees lose at trial as well). (Update, Dec. 16: KBR (which is not Halliburton) says that 96% of employee claims settle before they get to an arbitrator.)

20/20 also adds the claim (absent in the arbitration and in the otherwise-lurid civil complaint) that Jones was threatened that she would be fired if she sought medical treatment.

Read On…

“Don’t let Walter Olson have the say on this subject!”

That’s Stephanie Mencimer explaining (Nov. 28) why trial lawyers should buy multiple copies of her forthcoming book, entitled Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue, expressing views antipodal to our own.

Mencimer, a frequent contributor to such journals as Mother Jones and the Washington Monthly (see Jan. 19, 2005), has set up a website (previously noted by Ted) to promote her new book. It’s not unproductive of chuckles, in its way. For example, in one post earlier this month (Nov. 10), criticizing media coverage of patent hellhole Marshall, Texas, she piously avers that reporters should disclose who fed them tips. A fascinating idea! Does this mean she’ll be sure to disclose in her own writings who fed her tips? Or is this new standard only supposed to apply to journalism she disapproves of?

Election watch: “Lawyer’s $1 million keeps Bell in game”

Texas:

Houston trial lawyer John O’Quinn saved Democrat Chris Bell’s struggling gubernatorial campaign from financial oblivion this week by making a record $1 million donation. …

“There’s something about a million-dollar check that really warms the heart,” said Bell.

O’Quinn has promised to raise another $4 million for Bell’s campaign, and that could make the Democrat more competitive with all his opponents [incumbent Republican Rick Perry, independent Carole Keeton Strayhorn (herself heavily backed by trial lawyers), and independent Kinky Friedman]. …

Bell said O’Quinn is not looking for special favors from state government.

“There’s nothing that state government can do for John, nor is he asking for anything but good government,” Bell said. …

O’Quinn, Williams and Umphrey were part of a legal team that shared in a $3.3 billion legal fee for settling the state’s lawsuit against the tobacco industry.

(R. G. Ratcliffe and Janet Elliott, Houston Chronicle, Oct. 11).

Eating their own: Fred Baron v. Baron & Budd

Apparently there is no honor among thievesplaintiffs’ attorneys. The Texas Shark Watch Blog tells us that John Edwards’ money-man, Fred Baron, has sued his former law firm:

Never one to overlook any conceivable cause of action, Baron alleges in his petition filed in Dallas state district court breach of contract, breach of fiduciary duty, conspiracy to breach fiduciary duty, tortious interference, conspiracy to tortious interference, fraud or alternatively negligent misrepresentation, conspiracy to fraud, fraudulent transfer, conversion, legal malpractice, negligence, unjust enrichment, and alternatively promissory estoppel or quantum meruit.

The blog has much more about plaintiffs’ bar involvement in Texas politics, including the use of over a million dollars of trial-lawyer money to support the independent-Republican candidacy of Carole Strayhorn, presumably to split the Republican vote and unseat a governor who has done much for reform. Efforts by trial lawyers to supplant reform-friendly Republican legislators with their own stalking-horse candidates in Republican primaries were unsuccessful, however.

Malpractice key issue in NJ, Pa. races

“In New Jersey, where state-level candidates usually campaign over issues such as property taxes and school funding, the No. 1 issue is now medical malpractice — if political fund-raising totals are any indication.” Doctors are throwing themselves into state politics and are so passionate about the issue that they’re actually outspending trial lawyers by a wide margin. (“Malpractice Issue Draws Most Funding in N.J. State Races”, BestWire/HIMSS (Healthcare Information and Management Systems Society), Oct. 28). Pennsylvania physicians are up in arms as well, hoping to make their voices heard in a key state supreme court contest between Republican Joan Orie Melvin and Democrat Max Baer (Carrie Budoff, “This time, physicians are players in election”, Philadelphia Inquirer, Nov. 3; Marian Uhlman, “As doctor workforce ages, a fear of shortage”, Oct. 12). In Massachusetts, nearly 1,000 doctors descended on the statehouse last spring attired in white coats, demanding malpractice reform (David Kibbe, “Liability insurance hikes scaring off some doctors”, Ottaway/New Bedford Standard-Times, Oct. 6). See also “Tort-reform law could cure ills of malpractice” (editorial), Rockingham News, Oct. 31 (New Hampshire)(suggesting that recent Texas reforms serve as model).

June 2003 archives, part 2


June 20-22 — Fast food: give me my million. From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:

CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.

RICHARD CARLETON: So what do you want in return?

CAESAR BARBER: I want compensation for pain and suffering.

RICHARD CARLETON: But how much money do you want?

CAESAR BARBER: I don’t know … maybe $1 million. That’s not a lot of money now.

(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines. (DURABLE LINK)

June 20-22 — Investors’ Business Daily interviews our editor. Now at a stable URL, last Friday’s interview mostly concentrated on our editor’s new book The Rule of Lawyers (David Isaac (interviewer), “Frivolous Lawsuits Creating New Power Class — Lawyers”, Jun. 13, reprinted at Manhattan Institute site). (DURABLE LINK)

June 20-22 — Batch of reader letters. Special all-critical edition — nothing but letters taking issue with us. Topics include the MTV “Jack Ass” suit, Ann Arbor substitute teachers, the ADA, high verdicts as an inspiration to young lawyers, and medical malpractice. (DURABLE LINK)

June 18-19 — Keep playing in our conference or we’ll sue you. Five schools in the Big East football conference — Pittsburgh, West Virginia, Virginia Tech, Rutgers and Connecticut — have filed suit to stop Miami and Boston College from departing for the Atlantic Coast Conference. (Eddie Pells, “Big East accuses Miami, BC and ACC of conspiracy”, AP/Kansas City Star, Jun. 6; Sam Eifling, “Requiem for the Big East”, Slate, Jun. 12; Steve Wieberg, “Conference changes becoming more hostile than ever”, USA Today, Jun. 15). Politicians have gotten into the act in support of the suit, including (inevitably) Connecticut AG Richard Blumenthal as well as the state’s Gov. John Rowland (Andy Katz, “ACC lawyer: Lawsuit will not distract from expansion”, ESPN, Jun. 12). Virginia AG Jerry Kilgore, too (“Virginia Tech, the Big East and the ACC”, Roanoke Times, Jun. 17; see S.W.Va. Law Blog, Jun. 17). S.M.Oliva comments (Initium, Jun. 6) (via Dan Lewis). (DURABLE LINK)

June 18-19 — A judge bans a book. “A tax protester may not sell his book that contends paying income tax is voluntary, a federal judge ruled Monday. U.S. District Judge Lloyd D. George wrote in an order banning the book that Irwin Schiff is not protected by the First Amendment because he has encouraged people not to pay taxes. ‘There is no protection … for speech or advocacy that is directed toward producing imminent lawless action,’ George wrote in support of the preliminary injunction on the book, ‘The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes.'” (“Federal judge in Las Vegas bans anti-tax book”, Reno Gazette-Journal, Jun. 16). (DURABLE LINK)

June 18-19 — Texas’s giant legal reform. With the support of Gov. Rick Perry, the Texas legislature this month passed what looks to us to be the most serious and comprehensive package of litigation reforms achieved at one stroke anywhere in recent memory. Among other features, it: adopts an offer-of-settlement-driven variant of loser-pays; reforms class action certification and requires that lawyers’ fees be paid in coupon form to the extent that class relief is provided that way; tightens forum non conveniens safeguards against court-shopping; protects defendants from having to pay damages attributable to other responsible parties’ fault; establishes innocent-retailer and regulatory-compliance defenses in product liability law, along with a 15-year statute of repose; curbs artificially high interest on judgments; limits appeals bonds; restrains medical liability in a long list of ways including a $250,000 cap on non-economic damages; and much more. (“Ten-gallon tort reform” (editorial), Wall Street Journal, Jun. 6, reprinted at Texans for Lawsuit Reform site; summary of legislation at same site; John Williams, “Proponents cheer tort reform”, Houston Chronicle, Jun. 11). (DURABLE LINK)

June 18-19 — Around the blogs. Virginia Postrel (Jun. 5) has some comments from civil libertarian Harvey Silverglate criticizing 18 U.S.C. sec. 1001, which the feds are using to go after Martha Stewart. This law makes it unlawful to lie to a federal agent — even if you’re not under oath, and even though the agents may be free to lie to you. See also the comment from reader James Ingram. Mickey Kaus (Jun. 16) echoes speculation by “some media lawyers” quoted in the Washington Post (James V. Grimaldi, “Blair Analogy Reaches Courtroom Far From N.Y.”, Jun. 16) that the New York Times may have forced out top executives Howell Raines and Gerald Boyd in part because if it hadn’t done so, defamation plaintiffs might have been able to use its forbearance “to devastating effect” in future litigation. And MedPundit catches up at some length (Jun. 3) on the controversy over thimerosal, the mercury-containing vaccine preservative which has given rise to bitter litigation and legislative battles. (DURABLE LINK)

June 16-17 — Probate’s misplaced trust. Washington Post investigation into guardianship in the D.C. courts finds that the D.C. Superior Court’s probate division, “mandated to care for more than 2,000 elderly, mentally ill and mentally retarded residents, has repeatedly allowed its charges to be forgotten and victimized …. Chaotic record-keeping, lax oversight and low expectations in this division of the court have created a culture in which guardians are rarely held accountable. They are often handed new work even when they have ignored their charges or let them languish in unsafe conditions.” The Post “found hundreds of cases where court-appointed protectors violated court requirements. Since 1995, one of five guardians has gone years without reporting to the court. Some have not visited their ailing charges. In more than two dozen cases, guardians or conservators have taken or mishandled money. Neglectful caretakers are rarely disciplined, D.C. bar records show. Even when they have been caught stealing or cheating clients, attorneys can go as long as nine years before they are punished.”

Why have the courts gone on giving new work to lawyers charged with misconduct or incompetence in earlier cases? “[Senior Judge Eugene] Hamilton said he would hesitate to ban lawyers from future appointments simply because they’ve been removed from a case. ‘You have to be careful about barring someone from cases, said Hamilton, who oversaw the probate division from 1991 until 1993. ‘It may be the person’s only source of practice.'” (Carol D. Leonnig, Lena H. Sun and Sarah Cohen, “Under Court, Vulnerable Became Victims”, Washington Post, Jun. 15) (via David Bernstein)(& see Ethical Esq.). More: Second part of article: Sarah Cohen, Carol D. Leonnig and April Witt, “Rights and Funds Can Evaporate Quickly”, Jun. 16). (DURABLE LINK)

June 16-17 — He’s gotta have it. A Manhattan judge has granted a temporary injunction sought by filmmaker Spike Lee against the launch of Spike TV, a cable channel aiming to provide television programming of interest to men. (Samuel Maull, “Spike Lee wins temporary injunction”, AP/San Francisco Chronicle, Jun. 12). However, “State Supreme Court Justice Walter Tolub ordered Lee to post a $500,000 bond to cover Viacom’s losses in case the company wins.” (“Spike Lee outmans Spike TV”, Newsday, Jun. 13; Mark Perry, “Spike Lee Gains Upper Hand In Legal Battle With TNN”, Impact Wrestling, Jun. 13). At FindLaw, columnist Julie Hilden (“Spike Lee v. Spike TV”, Jun. 9) is nondismissive about Lee’s case, while conceding it raises questions about whether other well-known persons with the same nickname, such as director Spike Jonze, could also sue. Sentiment in the blog world, on the other hand, seems to be running heavily against Lee (né Shelton). Examples: Catbird.org, Idler Yet, Horrors of an Easily Distracted Mind, Doedermara.net, LedUntitled. (DURABLE LINK)

June 16-17 — A tangled Mississippi web. “A web of connections exists between the judges, lawyers, politicians and investigators involved in a Mississippi judicial-corruption probe, raising questions about the fairness and thoroughness of the investigation and about possible conflicts of interest.” Among prominent figures in the probe are “[plaintiff’s attorney Dickie] Scruggs as a cooperating witness and [state Attorney General Michael] Moore as a co-investigator of some sort. And their friendship has raised eyebrows, most recently after The Sun Herald witnessed Moore giving Scruggs a lift to the courthouse before Scruggs testified before the grand jury. … Scruggs has said he does not have an immunity agreement with prosecutors and that he doesn’t need one.” A federal grand jury is expected to reconvene next month to consider the allegations. (Margaret Baker, Tom Wilemon and Beth Musgrave, “Web of connections”, Biloxi (Miss.) Sun-Herald, Jun. 8)(see May 7 and links from there).

MORE ON INVESTIGATION: Thomas B. Edsall, “Mississippi Trial Lawyers Under Inquiry”, Washington Post, May 18; “FBI agent reassigned after questioning ties in judge-attorney probe”, AP/Grenada (Miss.) Star, May 29; Tom Wilemon, Margaret Baker and Beth Musgrave, “Lott, Moore deny influencing probe”, Biloxi Sun Herald/San Jose Mercury News, May 30; “Moore says he has no role in judges probe”, AP/Jackson Clarion Ledger, May 30; “Paper: Lott, judge probers talked”, Jackson Clarion Ledger, Jun. 3. (DURABLE LINK)

June 16-17 — “The rise of the fourth branch”. Our editor’s book The Rule of Lawyers is reviewed in Enter Stage Right by ESR editor Steven Martinovich (Jun. 9). And on Friday Investor’s Business Daily published correspondent David Isaac’s interview with our editor; when we get a stable URL, we’ll post it. (DURABLE LINK)

June 16-17 — “McDonald’s sues food critic”. “McDonald’s has sued one of Italy’s top food critics for raking its restaurants over the coals, but the critic says he has no intention of going back on saying its burgers taste of rubber and its fries of cardboard.” McDonald’s of Italy called the comments by Edoardo Raspelli, food critic of the newspaper La Stampa, “clearly defamatory and offensive”. (Reuters/CNN, Jun. 2; BBC, May 30; Guardian (UK), Jun. 4; “McDonald’s Turns to the Dark Side”, Center for Individual Freedom, Jun. 12). David Farrer at Freedom and Whisky suggests a better approach the company might take (“Shooting themselves in the foot”, May 31). (DURABLE LINK)

June 12-15 — Docs leaving their hometowns. As liability woes worsen, this genre of article is running in papers across the country. Philadelphia, of course: Michael Hinkelman, “Like older docs, young M.D.s fleeing Pa., too”, Philadelphia Daily News, May 28. An example from Corpus Christi, Tex.: Robert M. (Marty) Reynolds, “Why this doctor is leaving his hometown”, Corpus Christi Caller-Times, Apr. 23, reprinted at Texans for Lawsuit Reform site. From Independence, Mo., best known as Harry Truman’s hometown: M. Steele Brown, “Malpractice ‘crisis’ drives docs from Missouri”, Kansas City Business Journal, May 2. And neurosurgery in Seattle faces a crisis as ten local surgeons lose their coverage, forcing hospitals to send patients elsewhere; the ten say they have good records but the chief operating officer of the Doctor’s Company, an insurance provider, “said about half of all neurosurgeons nationwide are sued each year”, which makes it plain enough that plenty of good ones get sued. (Carol M. Ostrom, “A neurosurgeon ‘crisis’: Insurer drops doctors’ group”, Seattle Times, Jun. 7). Meanwhile, the incoming head of the American Bar Association, North Carolinian Alfred P. Carlton Jr., a partner with Kilpatrick Stockton LLP, claims in an interview with The Hill — no fair laughing aloud, now — that “I don’t think there’s any credible evidence that connects anything going on in the justice system to the rise of malpractice insurance rates. My malpractice rates are going up. Everybody’s insurance rates are going up, for all kinds of insurance.” Now there’s a checkable proposition: have insurance rates for life, health, fire, storm, crop and marine risks jumped by 60 or 80 percent on renewal in the past couple of years, the way so many doctors’ liability rates have? (“‘There are abuses at the edges'” (interview), The Hill, Jun. 11). (DURABLE LINK)

June 12-15 — U.K. roundup. “George Blake, the KGB spy who fled to Moscow in 1966, has accused the Government of breaching his human rights by confiscating £90,000 he was expecting to make from his memoirs.” Blake, who escaped from Wormwood Scrubs prison after serving five years of a 42-year sentence for highly damaging work as a Soviet double agent, has petitioned the European Court of Human Rights for the right to the money from the autobiography. (Joshua Rozenberg, “Spy Blake tries to sue Britain for his lost £90,000”, Daily Telegraph, May 16). “Meet Britain’s most prolific race discrimination litigant. Omorotu Francis Ayovuare, a Nigerian-born surveyor, may not have held a steady job for five years: he has, however, earned a certain celebrity in the world of industrial relations after launching 72 employment tribunal cases alleging racial discrimination.” (Adam Lusher and David Bamber, “Give me a job – or I’ll sue”, Daily Telegraph, Jun. 8). (Update Dec. 13: at request of attorney general, court restrains him from further filings). “The Scottish Parliament, fresh from outlawing hunting with dogs, is to force fish-lovers to buy pet licences for exotic species in their garden ponds and aquaria. … Anyone who owns exotic fish without a licence will face fines of up to £2,500.” (Rajeev Syal, “Have you got a licence for that exotic minnow?”, Daily Telegraph, Apr. 6). Enthusiasm about lawsuits to recoup costs of global warming has reached Britain, although as one Oxford physicist told the BBC, “Some of it might be down to things you’d have trouble suing — like the Sun”. (“Suing over climate change”, BBC, Apr. 3). (DURABLE LINK)

June 12-15 — To tame Madison County, pass the Class Action Fairness Act. By ensuring that large nationwide class actions are heard in federal court, the bill would curb the influence of “magic jurisdictions” in which “the judiciary is elected with verdict money”, as one big-league trial lawyer has put it. (Jim Copland, “The tort tax”, Wall Street Journal, Jun. 11; Mr. Copland is associated with the Manhattan Institute’s Center for Legal Policy, as is this site’s editor.). The Madison County, Ill. courthouse “is on pace to have another record year for class-action lawsuits”, reports a local newspaper. (Brian Brueggemann, “Number of lawsuits is 39 and climbing”, Belleville News-Democrat, May 26). Two plaintiff’s law firms, St. Louis-based Carr Korein Tillery and the Wood River, Ill.-based Lakin Law Firm, dominate the filing of class actions in the county (Andrew Harris, “At the head of the class actions”, National Law Journal, Jun. 9). And Madison County personal injury lawyer John Simmons, 35, of Edwardsville, whose law firm in March obtained a $250 million jury verdict for a retired steelworker in an asbestos case against U.S. Steel, “has announced his intention to run for the U.S. Senate seat being vacated by Republican Peter Fitzgerald”. (“Downstate lawyer to enter Democratic primary”, AP/Northwest Indiana Times, May 27). (DURABLE LINK)

June 2003 archives


June 10-11 — New Orleans cleanup continues. “It was bad enough that New Orleans personal injury attorney Curtis Coney Jr. was illegally paying ‘runners’ to solicit accident victims, paying them $500 for each ambulance-chasing referral. When his secretary was subpoenaed to testify before a federal grand jury, Coney compounded his problems by urging her to lie about the payments, even though she was the one who usually doled them out. … In a plea agreement unveiled in federal court Wednesday, Coney, 58, pleaded guilty to 10 counts of ‘structuring’ referral payments to hide them from the state and federal governments, one count of conspiracy and one count of obstruction of justice for pressuring [the secretary] to lie. As part of the deal, lead prosecutor Irene Gonzalez recommended a 33-month jail sentence for Coney.” The lawyer’s guilty plea is among the fruits of “a 4-year federal investigation of personal injury attorneys, a quietly unfolding case that has resulted in more than 20 convictions”. Targeted along with attorneys and “runners” are “medical providers who exaggerated or falsified injury claims in order to secure lucrative insurance settlements.” (Michael Perlstein, “Lawyer guilty in referral scheme”, New Orleans Times-Picayune, May 16). (DURABLE LINK)

June 10-11 — Bounty-hunting in New Jersey. The administration of Gov. Jim McGreevey has retained a flamboyant private plaintiff’s lawyer to pursue claims seeking to hold businesses legally liable for wastes left over from the state’s industrial past. Although Allen Kanner is initially donating his services for free, it is expected that he will take a contingency stake in some or many of the state’s financial recoveries. Also being hired is a politically well-connected law firm named Lynch Martin Kroll, associated with one of the state’s Democratic power brokers. Together, Kanner and the Lynch firm “are scouring state files for possible ‘natural resource damage’ claims. Such claims — little used in the state’s past — require polluters to go far beyond simple cleanups by making them pay the public for things such as lost fishing time, lost tap water, injured wildlife and soiled scenery.” (Alexander Lane, “State retains enviro-lawyer who gets polluters’ attention”, Newark Star-Ledger, May 11). More: PointOfLaw.com, Sept. 5, 2004. (DURABLE LINK)

June 10-11 — The Rule of Lawyers reviewed. In the June Commentary, Washington attorney and Findlaw columnist Barton Aronson contributes a very generous appraisal of our editor’s latest book. (DURABLE LINK)

June 9 — “Silver’s wreck”. Our editor has an op-ed piece in today’s New York Post on the impending demise of auto leasing in New York state, wrecked by the state’s archaic “vicarious liability” law whose chief defenders include the state trial lawyers’ association and Assembly Speaker Sheldon Silver (Walter Olson, New York Post, Jun. 9). Our earlier coverage of the issue is here. More: Sept. 5, 2004. (DURABLE LINK)

June 9 — “Families of teens killed in crash after rave sue U.S. government”. “Family members of five teens who died when their car careened off a cliff after an all-night rave party have filed a suit against the U.S. government for issuing the event’s permit. ‘If you knowingly allow use of your land for a drug party and people get killed, we allege you are partially responsible,’ said Andrew Spielberger, a West Hollywood-based attorney representing the families.” (AP/Sacramento Bee, Jun. 1). (DURABLE LINK)

June 9 — The intimidation tactics of Madison County. Four business groups held a press event in Madison County, Ill., last week to unveil the latest report depicting the county’s courts as a paradise for plaintiff’s lawyers (U.S. Chamber of Commerce, “The Rogue Courts of Madison County” (PDF)). What happened next? Local plaintiff’s attorney Bradley M. Lakin promptly slapped them with a subpoena demanding that their executives testify in a would-be class action case against Ford Motor on alleged paint defects. “Subpoenas are for witnesses who know something about the case,” said Victor E. Schwartz, general counsel of the American Tort Reform Association. “In this situation, ATRA knows nothing. It is clear the subpoena power is being used to squelch ATRA from speaking out about Madison County and its inequities as one of the leading ‘judicial hellholes’ in the United States.” Last year ATRA published a report entitled “Justice for Sale: The Judges of Madison County“. (“ATRA Says Subpoena Power Should Not Be Used To Squelch First Amendment Rights”, ATRA press release, Jun. 6; Illinois Civil Justice League, which was one of the subpoenaed groups along with ATRA and the national and Illinois Chambers of Commerce, has links). Updates Jul. 12: subpoenas dropped and Jul. 26: sanctions motions dropped.

And St. Louis Post-Dispatch columnist Bill McClellan turns the spotlight on a recent Madison County class action settlement involving Sears tires: “If you have a receipt showing you purchased an AccuBalance from a Sears auto center between 1989 and 1994 and are willing to take the time to request a claims form and fill it out and send it in, you could get $2.50 for each tire, up to a total of $10. Of course, who keeps receipts from 1989? You still might be eligible for $1.25 a tire, up to a total of $5. If Sears does not have a record of your purchase, you will be eligible only for a $3 Sears coupon. Of course, there will be forms to fill out under threat of perjury. Things are a little better for the lawyers who ‘represented’ you. The settlement says that their legal fees cannot exceed $2.45 million.” McClellan is bold to tackle this subject, since when he criticized lawyers from the same class-action firm in 1999 they came after him with a lawsuit, later dropped (see Nov. 4, 1999)(Bill McClellan, “Just like your tires, wheels of justice may be out of balance”, St. Louis Post-Dispatch, Jun. 4). (DURABLE LINK)

June 6-8 — New legal ethics weblog. David Giacalone, formerly of PrairieLaw, has started a new weblog, ethicalEsq?, specializing in “client-centered legal ethics”. He’s already posted on several issues of interest, including Common Good’s early-offers proposal (May 30 and Jun. 3), the case for requiring lawyers to disclose more fully to clients the circumstances of their representation (Jun. 3), and (citing this website) the still-unfolding battle in a New York courtroom over whether Judge Charles Ramos has authority to review and correct outrageous tobacco fees (May 31; on tobacco fees, see Daniel Wise, “Judge’s Power to Review $625M Tobacco Fee Award Challenged”, New York Law Journal, May 28). (DURABLE LINK)

June 6-8 — Claims consciousness in Utah. To promote a contemplated April Fool’s Day festival, Mayor Gerald R. Sherratt of Cedar City, Utah, published in local papers a tall tale about how wandering Vikings had left precious ancient artifacts in a local cave. Most residents seem to have gotten the joke, but various readers in the nearby town of St. George stepped forward to lay claim to the supposed treasure found in the cave, several of them saying “their ancestors had been part of the settlement and had owned some of the artifacts. …When Sherratt explained the whole story was made up to promote the festival, the St. George residents accused him and other officials of a cover-up.” (Paul Rolly and JoAnn Jacobsen-Wells, “Ad Flap Is Stranger Than Fiction”, Salt Lake Tribune, May 26). (DURABLE LINK)

June 6-8 — Hiker cuts off use of his name. Equipped to Survive, a wilderness gear site, recommended a pocket-sized emergency beacon by referring to a recent survival story that received worldwide publicity: “Your survival should not require you to amputate your own arm, as Aron Ralston was recently forced to do in order to escape being trapped by an 800-lb. boulder.” Before long the site’s proprietor received this cease and desist letter (PDF format) dated June 5 from Ralston’s lawyer demanding that the reference be removed as in violation of the hiker’s “right of publicity” under state statutes. There followed this rude reply from the website proprietor, inviting the lawyer to “stick your ridiculous cease and desist demand where the sun don’t shine”. Now cut that out, boys, there’s no reason we can’t be polite. (DURABLE LINK)

June 4-5 — Blaming murder on flat tire. A 19-year-old woman, having stopped to change a flat tire at the side of the road, is taken away and murdered by a local man. According to a lawyer for her family, the Ford Motor Co. and tiremaker Bridgestone/Firestone should be made to pay for the murder. A court dismissed the case against the two companies on grounds that they could not have found harm of this sort foreseeable enough to trigger a legal duty of care, but the family’s lawyer, Richard Rensch, is appealing to the Nebraska Supreme Court. (AP/KETV, Jun. 3; “Murder victim’s parents say flat set off tragic events”, Fremont (Neb.) Tribune, Jun. 3). (DURABLE LINK)

June 4-5 — Fox News “The Big Story”. Our editor was interviewed on screen for a piece that Fox News’s “The Big Story” is preparing on the search for deep pockets in litigation. It’s tentatively scheduled to run Wednesday, but these things are always subject to change. Update: it did run Wednesday, Jun. 4. (DURABLE LINK)

June 4-5 — Malpractice: juggling the stats. In the course of an otherwise standard feature package on the medical malpractice crisis (Daniel Eisenberg and Maggie Sieger, “The Doctor is Out”, Time, Jun. 9, and sidebars) Time gives credence to a newly issued report asserting that doctors’ malpractice premiums are actually rising fastest in states without damage caps (Jyoti Thottam, “A Chastened Insurer”, Jun. 1). Very curiously, the new report (from Weiss Ratings, “an independent insurance-rating agency in Palm Beach Gardens, Fla.”) is described as compiling figures for median premiums and payouts (the numbers compared with which half of the data points are higher and half lower) rather than averages, even though this is a field where the outliers (giant awards, unusually litigious specialties) drive the debate and the dollar figures. CalPundit (Jun. 2) spots this anomaly and opines: “this is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here” (via Jonathan Adler, NR Corner).

A table laying out the (very large) differences between malpractice premiums between Los Angeles (where doctors practice under California’s MICRA damages cap) and three litigious jurisdictions elsewhere in the country (Miami, Long Island, Detroit) indicates that MICRA confers its greatest benefit by far on the most litigation-prone specialties: for example, the average savings from MICRA for a neurosurgeon is $ 145,813 and for an ob/gyn $ 88,593, but it’s only $24,599 for an internist and $15,639 for a dermatologist (“2003 Malpractice Premium Comparison“, California Physician (California Medical Association)) (PDF format)(CMA’s MICRA Resource Center). For a more reliable reading of the crisis and its relation to damage caps and the insurance market, check out the report issued by the U.S. Department of Health and Human Services this spring (“Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care”, Mar. 3; Senate testimony by Deputy Secretary Claude A. Allen, Mar. 13).

How big an impact do the “outlier” cases have, the small number of gigantic verdicts that almost vanish from the calculation when per-case outlays are calculated as a median? Among recent examples are the $78.5-million verdict against an Orlando hospital for failing to figure out that a woman visiting its emergency room was suffering from a bizarre undiagnosed tumor; thought to be the largest medical malpractice award in Florida history, it has “become the symbol of juries run amok” in the view of critics of the system. (William R. Levesque, “Tremors still felt from whopping jury award”, St. Petersburg Times, Jun. 2). And in a result vocally criticized by appeals judges even as they felt obliged to uphold it, a Manhattan jury’s $40 million malpractice award against one of the city’s premier hospitals, New York-Presbyterian, has been blown up to $140 million by a law mandating that annual interest of 4 percent be added to awards “even if the jury has already adjusted the annual amount for inflation. Critics say that means a double adjustment for inflation in some cases, like this one.” (Richard Perez-Pena, “New York Hospitals Fearing Malpractice Crisis”, New York Times, Jun. 3). (DURABLE LINK)

June 4-5 — “Rape defendant asks $20,000; found fly in mashed potatoes”. “If convicted later this year of raping a 16-year-old girl, [Kenneth] Williams could be sentenced to 112 years to life in prison. It would be his third, and last, trip to state prison, authorities say.” What has upset Williams recently, however, is the insect impurity he says he found in his prison dinner. He “is seeking $20,000 to ease the ‘mental stress and anguish’ he said finding the fly inflicted upon him. ‘It’s been almost a month since this occurred,’ Williams wrote last week in the claim, ‘and I still only pick at my food …. I’m losing weight and am unable to eat properly.'” The sum demanded was fair, according to his complaint, since public venting of the allegations “would cost the county ‘a great deal more both financially and in bad publicity.'” (J. Harry Jones, San Diego Union-Tribune, Jun. 3). (DURABLE LINK)

June 3 — An important litigation skill. From Gail Diane Cox’s “Voir Dire” column in the National Law Journal, Nov. 4, 2002 (scroll down to “Jargon Watch”): “Blamestorming: Variant of brainstorming. Sitting around in a group discussing a mistake and how to make someone responsible for it, preferably a deep-pocket defendant. Synonym: Litigation initiation.” Maybe a session of this sort was responsible for the naming of Shell Oil as a defendant in the Rhode Island nightclub fire (see May 30-Jun. 1). (DURABLE LINK)

June 3 — “Resumé spam saddles employers”. It’s common these days for employers to receive hundreds, thousands or even milllions of resumés via email from hopeful job-seekers. Federal regulations on the books since the 1970s, however, require most larger companies to preserve records of all job applications, the most important reason being to furnish evidence in case they are someday investigated for possible discrimination. Under the strictest interpretation of the rules, companies with more than fifteen employees must keep on file any resumé sent to them — even if “the applicant misspells the company’s name, applies for a job not listed or is simply not qualified.” The result: a large and ever-growing paperwork/compliance burden on American business. (Bill Atkinson, “Resume spam saddles employers”, Baltimore Sun, May 22; Michelle Martinez, “Who Really Is An Applicant When Recruiting Online?”, PeopleClick.com, undated). See Shirleen Holt, “Résumé spam is tiring those hiring”, Seattle Times, Jan. 19; Katherine Harding, “The new scourge: Résumé spam”, GlobeTechnology.com (Globe & Mail, Canada), Jan. 8 (“Companies that advertise jobs on-line are finding their e-mail boxes crammed with irrelevant responses”, some from applicants who blast out responses to every job listed on a posting board). (DURABLE LINK)

June 2 — Updates. Further developments in cases we’ve covered:

* Citing its recent jurisprudence bringing constitutional due process limits to bear on punitive damages, the U.S. Supreme Court has instructed lower courts to reduce a $290 million award against Ford Motor in the Romo case; the case arose from a Bronco rollover in central California, and we’ve had quite a bit to say about it over the four years since it went to trial (see Oct. 24, 2002 and links from there) (David Kravets, “High Court Reduces Damages in Car Crash”, AP/Yahoo, May 19; Bob Egelko, “Key ruling on punitive damages”, San Francisco Chronicle, May 19);

* The Los Angeles Zoo has transferred Ruby, its female African elephant, to a Tennessee zoo notwithstanding a pending lawsuit (see May 16-18) complaining that the move would disrupt Ruby’s bond with her elephant “best friend”; an attorney who had gone to court seeking a temporary restraining order against splitting the two elephants complained that zoo authorities had acted “like thieves in the middle of the night”. (Carla Hall, “Despite Protests, L.A. Zoo Sends Elephant to Tennessee”, Los Angeles Times, May 27) (via SoCalLaw, May 27);

* The Supreme Court of Hawaii has reversed a jury’s award of $2 million to an auto service manager fired over what his employer considered credible charges of sexual harassment (see Mar. 10-12, 2000) (Gonsalves v. Nissan Motor Corp. in Hawaii, Ltd., Supreme Court of Hawaii, Nov. 27, 2002; see Jeffrey Harris, “Law Watch: Preventing Harassment Trumps Keeping Promises”, Hawaii Business, Feb. 20);

* In a humiliating defeat for backers of anti-gun litigation, a federal “advisory” jury in Brooklyn has refused to hold manufacturers liable for inner-city gun crime in the much-publicized case brought by the NAACP before judge Jack Weinstein. “The panel of 12 jurors issued a finding of no liability for 45 of the defendants and was unable to reach a verdict for the remaining 23 manufacturers or gun dealers”. (Mark Hamblett, “Federal Advisory Jury Declines to Find Gun Industry Liable”, New York Law Journal, May 15; Katherine Mangu-Ward, “No Smoking Gun”, WeeklyStandard.com, May 8). Update Jul. 20: judge dismisses lawsuit entirely. (DURABLE LINK)


June 20-22 — Fast food: give me my million. From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:

CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.

RICHARD CARLETON: So what do you want in return?

CAESAR BARBER: I want compensation for pain and suffering.

RICHARD CARLETON: But how much money do you want?

CAESAR BARBER: I don’t know … maybe $1 million. That’s not a lot of money now.

(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines. (DURABLE LINK)

June 20-22 — Investors’ Business Daily interviews our editor. Now at a stable URL, last Friday’s interview mostly concentrated on our editor’s new book The Rule of Lawyers (David Isaac (interviewer), “Frivolous Lawsuits Creating New Power Class — Lawyers”, Jun. 13, reprinted at Manhattan Institute site). (DURABLE LINK)

June 20-22 — Batch of reader letters. Special all-critical edition — nothing but letters taking issue with us. Topics include the MTV “Jack Ass” suit, Ann Arbor substitute teachers, the ADA, high verdicts as an inspiration to young lawyers, and medical malpractice. (DURABLE LINK)

June 18-19 — Keep playing in our conference or we’ll sue you. Five schools in the Big East football conference — Pittsburgh, West Virginia, Virginia Tech, Rutgers and Connecticut — have filed suit to stop Miami and Boston College from departing for the Atlantic Coast Conference. (Eddie Pells, “Big East accuses Miami, BC and ACC of conspiracy”, AP/Kansas City Star, Jun. 6; Sam Eifling, “Requiem for the Big East”, Slate, Jun. 12; Steve Wieberg, “Conference changes becoming more hostile than ever”, USA Today, Jun. 15). Politicians have gotten into the act in support of the suit, including (inevitably) Connecticut AG Richard Blumenthal as well as the state’s Gov. John Rowland (Andy Katz, “ACC lawyer: Lawsuit will not distract from expansion”, ESPN, Jun. 12). Virginia AG Jerry Kilgore, too (“Virginia Tech, the Big East and the ACC”, Roanoke Times, Jun. 17; see S.W.Va. Law Blog, Jun. 17). S.M.Oliva comments (Initium, Jun. 6) (via Dan Lewis). (DURABLE LINK)

June 18-19 — A judge bans a book. “A tax protester may not sell his book that contends paying income tax is voluntary, a federal judge ruled Monday. U.S. District Judge Lloyd D. George wrote in an order banning the book that Irwin Schiff is not protected by the First Amendment because he has encouraged people not to pay taxes. ‘There is no protection … for speech or advocacy that is directed toward producing imminent lawless action,’ George wrote in support of the preliminary injunction on the book, ‘The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes.'” (“Federal judge in Las Vegas bans anti-tax book”, Reno Gazette-Journal, Jun. 16). (DURABLE LINK)

June 18-19 — Texas’s giant legal reform. With the support of Gov. Rick Perry, the Texas legislature this month passed what looks to us to be the most serious and comprehensive package of litigation reforms achieved at one stroke anywhere in recent memory. Among other features, it: adopts an offer-of-settlement-driven variant of loser-pays; reforms class action certification and requires that lawyers’ fees be paid in coupon form to the extent that class relief is provided that way; tightens forum non conveniens safeguards against court-shopping; protects defendants from having to pay damages attributable to other responsible parties’ fault; establishes innocent-retailer and regulatory-compliance defenses in product liability law, along with a 15-year statute of repose; curbs artificially high interest on judgments; limits appeals bonds; restrains medical liability in a long list of ways including a $250,000 cap on non-economic damages; and much more. (“Ten-gallon tort reform” (editorial), Wall Street Journal, Jun. 6, reprinted at Texans for Lawsuit Reform site; summary of legislation at same site; John Williams, “Proponents cheer tort reform”, Houston Chronicle, Jun. 11). (DURABLE LINK)

June 18-19 — Around the blogs. Virginia Postrel (Jun. 5) has some comments from civil libertarian Harvey Silverglate criticizing 18 U.S.C. sec. 1001, which the feds are using to go after Martha Stewart. This law makes it unlawful to lie to a federal agent — even if you’re not under oath, and even though the agents may be free to lie to you. See also the comment from reader James Ingram. Mickey Kaus (Jun. 16) echoes speculation by “some media lawyers” quoted in the Washington Post (James V. Grimaldi, “Blair Analogy Reaches Courtroom Far From N.Y.”, Jun. 16) that the New York Times may have forced out top executives Howell Raines and Gerald Boyd in part because if it hadn’t done so, defamation plaintiffs might have been able to use its forbearance “to devastating effect” in future litigation. And MedPundit catches up at some length (Jun. 3) on the controversy over thimerosal, the mercury-containing vaccine preservative which has given rise to bitter litigation and legislative battles. (DURABLE LINK)

June 16-17 — Probate’s misplaced trust. Washington Post investigation into guardianship in the D.C. courts finds that the D.C. Superior Court’s probate division, “mandated to care for more than 2,000 elderly, mentally ill and mentally retarded residents, has repeatedly allowed its charges to be forgotten and victimized …. Chaotic record-keeping, lax oversight and low expectations in this division of the court have created a culture in which guardians are rarely held accountable. They are often handed new work even when they have ignored their charges or let them languish in unsafe conditions.” The Post “found hundreds of cases where court-appointed protectors violated court requirements. Since 1995, one of five guardians has gone years without reporting to the court. Some have not visited their ailing charges. In more than two dozen cases, guardians or conservators have taken or mishandled money. Neglectful caretakers are rarely disciplined, D.C. bar records show. Even when they have been caught stealing or cheating clients, attorneys can go as long as nine years before they are punished.”

Why have the courts gone on giving new work to lawyers charged with misconduct or incompetence in earlier cases? “[Senior Judge Eugene] Hamilton said he would hesitate to ban lawyers from future appointments simply because they’ve been removed from a case. ‘You have to be careful about barring someone from cases, said Hamilton, who oversaw the probate division from 1991 until 1993. ‘It may be the person’s only source of practice.'” (Carol D. Leonnig, Lena H. Sun and Sarah Cohen, “Under Court, Vulnerable Became Victims”, Washington Post, Jun. 15) (via David Bernstein)(& see Ethical Esq.). More: Second part of article: Sarah Cohen, Carol D. Leonnig and April Witt, “Rights and Funds Can Evaporate Quickly”, Jun. 16). (DURABLE LINK)

June 16-17 — He’s gotta have it. A Manhattan judge has granted a temporary injunction sought by filmmaker Spike Lee against the launch of Spike TV, a cable channel aiming to provide television programming of interest to men. (Samuel Maull, “Spike Lee wins temporary injunction”, AP/San Francisco Chronicle, Jun. 12). However, “State Supreme Court Justice Walter Tolub ordered Lee to post a $500,000 bond to cover Viacom’s losses in case the company wins.” (“Spike Lee outmans Spike TV”, Newsday, Jun. 13; Mark Perry, “Spike Lee Gains Upper Hand In Legal Battle With TNN”, Impact Wrestling, Jun. 13). At FindLaw, columnist Julie Hilden (“Spike Lee v. Spike TV”, Jun. 9) is nondismissive about Lee’s case, while conceding it raises questions about whether other well-known persons with the same nickname, such as director Spike Jonze, could also sue. Sentiment in the blog world, on the other hand, seems to be running heavily against Lee (né Shelton). Examples: Catbird.org, Idler Yet, Horrors of an Easily Distracted Mind, Doedermara.net, LedUntitled. (DURABLE LINK)

June 16-17 — A tangled Mississippi web. “A web of connections exists between the judges, lawyers, politicians and investigators involved in a Mississippi judicial-corruption probe, raising questions about the fairness and thoroughness of the investigation and about possible conflicts of interest.” Among prominent figures in the probe are “[plaintiff’s attorney Dickie] Scruggs as a cooperating witness and [state Attorney General Michael] Moore as a co-investigator of some sort. And their friendship has raised eyebrows, most recently after The Sun Herald witnessed Moore giving Scruggs a lift to the courthouse before Scruggs testified before the grand jury. … Scruggs has said he does not have an immunity agreement with prosecutors and that he doesn’t need one.” A federal grand jury is expected to reconvene next month to consider the allegations. (Margaret Baker, Tom Wilemon and Beth Musgrave, “Web of connections”, Biloxi (Miss.) Sun-Herald, Jun. 8)(see May 7 and links from there).

MORE ON INVESTIGATION: Thomas B. Edsall, “Mississippi Trial Lawyers Under Inquiry”, Washington Post, May 18; “FBI agent reassigned after questioning ties in judge-attorney probe”, AP/Grenada (Miss.) Star, May 29; Tom Wilemon, Margaret Baker and Beth Musgrave, “Lott, Moore deny influencing probe”, Biloxi Sun Herald/San Jose Mercury News, May 30; “Moore says he has no role in judges probe”, AP/Jackson Clarion Ledger, May 30; “Paper: Lott, judge probers talked”, Jackson Clarion Ledger, Jun. 3. (DURABLE LINK)

June 16-17 — “The rise of the fourth branch”. Our editor’s book The Rule of Lawyers is reviewed in Enter Stage Right by ESR editor Steven Martinovich (Jun. 9). And on Friday Investor’s Business Daily published correspondent David Isaac’s interview with our editor; when we get a stable URL, we’ll post it. (DURABLE LINK)

June 16-17 — “McDonald’s sues food critic”. “McDonald’s has sued one of Italy’s top food critics for raking its restaurants over the coals, but the critic says he has no intention of going back on saying its burgers taste of rubber and its fries of cardboard.” McDonald’s of Italy called the comments by Edoardo Raspelli, food critic of the newspaper La Stampa, “clearly defamatory and offensive”. (Reuters/CNN, Jun. 2; BBC, May 30; Guardian (UK), Jun. 4; “McDonald’s Turns to the Dark Side”, Center for Individual Freedom, Jun. 12). David Farrer at Freedom and Whisky suggests a better approach the company might take (“Shooting themselves in the foot”, May 31). (DURABLE LINK)

June 12-15 — Docs leaving their hometowns. As liability woes worsen, this genre of article is running in papers across the country. Philadelphia, of course: Michael Hinkelman, “Like older docs, young M.D.s fleeing Pa., too”, Philadelphia Daily News, May 28. An example from Corpus Christi, Tex.: Robert M. (Marty) Reynolds, “Why this doctor is leaving his hometown”, Corpus Christi Caller-Times, Apr. 23, reprinted at Texans for Lawsuit Reform site. From Independence, Mo., best known as Harry Truman’s hometown: M. Steele Brown, “Malpractice ‘crisis’ drives docs from Missouri”, Kansas City Business Journal, May 2. And neurosurgery in Seattle faces a crisis as ten local surgeons lose their coverage, forcing hospitals to send patients elsewhere; the ten say they have good records but the chief operating officer of the Doctor’s Company, an insurance provider, “said about half of all neurosurgeons nationwide are sued each year”, which makes it plain enough that plenty of good ones get sued. (Carol M. Ostrom, “A neurosurgeon ‘crisis’: Insurer drops doctors’ group”, Seattle Times, Jun. 7). Meanwhile, the incoming head of the American Bar Association, North Carolinian Alfred P. Carlton Jr., a partner with Kilpatrick Stockton LLP, claims in an interview with The Hill — no fair laughing aloud, now — that “I don’t think there’s any credible evidence that connects anything going on in the justice system to the rise of malpractice insurance rates. My malpractice rates are going up. Everybody’s insurance rates are going up, for all kinds of insurance.” Now there’s a checkable proposition: have insurance rates for life, health, fire, storm, crop and marine risks jumped by 60 or 80 percent on renewal in the past couple of years, the way so many doctors’ liability rates have? (“‘There are abuses at the edges'” (interview), The Hill, Jun. 11). (DURABLE LINK)

June 12-15 — U.K. roundup. “George Blake, the KGB spy who fled to Moscow in 1966, has accused the Government of breaching his human rights by confiscating £90,000 he was expecting to make from his memoirs.” Blake, who escaped from Wormwood Scrubs prison after serving five years of a 42-year sentence for highly damaging work as a Soviet double agent, has petitioned the European Court of Human Rights for the right to the money from the autobiography. (Joshua Rozenberg, “Spy Blake tries to sue Britain for his lost £90,000”, Daily Telegraph, May 16). “Meet Britain’s most prolific race discrimination litigant. Omorotu Francis Ayovuare, a Nigerian-born surveyor, may not have held a steady job for five years: he has, however, earned a certain celebrity in the world of industrial relations after launching 72 employment tribunal cases alleging racial discrimination.” (Adam Lusher and David Bamber, “Give me a job – or I’ll sue”, Daily Telegraph, Jun. 8). (Update Dec. 13: at request of attorney general, court restrains him from further filings). “The Scottish Parliament, fresh from outlawing hunting with dogs, is to force fish-lovers to buy pet licences for exotic species in their garden ponds and aquaria. … Anyone who owns exotic fish without a licence will face fines of up to £2,500.” (Rajeev Syal, “Have you got a licence for that exotic minnow?”, Daily Telegraph, Apr. 6). Enthusiasm about lawsuits to recoup costs of global warming has reached Britain, although as one Oxford physicist told the BBC, “Some of it might be down to things you’d have trouble suing — like the Sun”. (“Suing over climate change”, BBC, Apr. 3). (DURABLE LINK)

June 12-15 — To tame Madison County, pass the Class Action Fairness Act. By ensuring that large nationwide class actions are heard in federal court, the bill would curb the influence of “magic jurisdictions” in which “the judiciary is elected with verdict money”, as one big-league trial lawyer has put it. (Jim Copland, “The tort tax”, Wall Street Journal, Jun. 11; Mr. Copland is associated with the Manhattan Institute’s Center for Legal Policy, as is this site’s editor.). The Madison County, Ill. courthouse “is on pace to have another record year for class-action lawsuits”, reports a local newspaper. (Brian Brueggemann, “Number of lawsuits is 39 and climbing”, Belleville News-Democrat, May 26). Two plaintiff’s law firms, St. Louis-based Carr Korein Tillery and the Wood River, Ill.-based Lakin Law Firm, dominate the filing of class actions in the county (Andrew Harris, “At the head of the class actions”, National Law Journal, Jun. 9). And Madison County personal injury lawyer John Simmons, 35, of Edwardsville, whose law firm in March obtained a $250 million jury verdict for a retired steelworker in an asbestos case against U.S. Steel, “has announced his intention to run for the U.S. Senate seat being vacated by Republican Peter Fitzgerald”. (“Downstate lawyer to enter Democratic primary”, AP/Northwest Indiana Times, May 27). (DURABLE LINK)


June 24 — Next: Mercedes sues Merced, Calif. The Volo Antique Auto Museum and Mall in Volo, Ill. (population 200) exhibits and vintage and historic automobiles and runs a website Volocars.com. Now the Volvo division of Ford Motor has failed in a bid before the World Intellectual Property Organization in Geneva to take away the museum’s right to the volocars.com domain. (Dan Rozek, “Volo car museum nets a win in Volvo Web fight”, Chicago Sun-Times, Jun. 20; Declan McCullagh’s Politech, Jun. 11 and Jun. 10; TechDirt, Jun. 20). (DURABLE LINK)

June 24 — Engle: a $710-million loose end. Assuming the $145 billion punitive damages verdict in the Florida tobacco class action is not revived by the state’s supreme court, one major loose end remains, but it’s a really big one. Three tobacco companies agreed to fork over $710 million in exchange for class counsel’s agreeing “not to challenge a new state law, passed at the behest of the cigarette makers, capping appeals bonds at $100 million.” The enormous sum was placed in escrow for the class, but now the class does not exist since it’s been decertified. Does the class somehow get reconstituted for purposes of dividing the booty? Does it go back to the defendants? To some worthy cause? And how much of it, if any, are plaintiff’s lawyers Stanley and Susan Rosenblatt going to be allowed to grab for themselves? The agreement between the Rosenblatts and the three companies says nothing about decertification. (Matthew Haggman, “The $710 Million Question”, Miami Daily Business Review, Jun. 19). (DURABLE LINK)

June 23 — Lightning bolt in amusement park’s parking lot. Cincinnati attorney Drake Ebner admits cynics will think he’s suing the Kings Island amusement park — in whose parking lot his client was struck by lightning — just because it’s a deep pocket. “But they should hold the park accountable, for not telling his client and thousands of others about an impending lightning storm, Edner said Monday. ‘They could have told the people not to go to their cars, which are large metal objects that can attract lightning.'” (Kimball Perry, “Family sues Kings Island”, Cincinnati Post, Jun. 17). (DURABLE LINK)

June 23 — Misguided search for a sanitized jury. The “legal defense team for Lee Boyd Malvo, the young suspect in last fall’s Washington-area sniper attacks, is seeking a change of venue from Fairfax County. It contends that all potential jurors in the county were victims of the terror spread by the sniper attacks and that jurors contaminated by news coverage make a fair trial impossible. … But impartiality only means without bias. It does not mean without knowledge. The courts have long recognized that jurors can set aside what they might know about a case, and that it’s preferable to have jurors who are tuned into the world around them than ones who are hermits.” (Charles H. Whitebread, “Jurors Must Be Impartial. They Shouldn’t Be Clueless”, Washington Post, Jun. 22). (DURABLE LINK)

June 23 — Mold — to the highest bidder! “Did you hear the one about the guy with the Park Avenue apartment full of toxic mold? He couldn’t find anyone to buy the place for $15.5 million, so he jacked up the asking price last week to $18 million. … At 515 Park Avenue, real-estate developer Richard Kramer would have you believe that recently, his apartment went up in value by $2.5 million even as he and the condominium’s board of managers continue to fight multimillion-dollar lawsuits against the building’s developers and sponsors, in which they allege that the 43-story tower is plagued with a mold infestation and major construction deficiencies.” (Blair Golson, “Toxic-Mold Gold: Shoddy High Rises Sold With Flaws”, New York Observer, Jun. 23 (temporary URL — after it expires, try search function)) (DURABLE LINK)

May 2003 archives


May 9-11 — Senate panel nixes tobacco-fee clawback. “Senators working on a tax bill Thursday stripped a proposal that would have forced attorneys in a landmark tobacco lawsuit to give $9 billion in fees back to the states they represented.” Sen. Jon Kyl, R-Ariz., had proposed requiring plaintiff’s lawyers in the tobacco affair to return to their state-government clients fees in excess of $2,500/hour or thereabouts. “But Democrats, led by Sen. John Breaux, D-La., and joined by Republican Sens. Orrin Hatch of Utah and Gordon Smith of Oregon, won a 12-8 vote to strike the language. Sen. John Kerry, D-Mass., said that if Congress can change the terms of the tobacco settlement, there is nothing to stop it from telling every business in America to change the way they pay their executives.” It’s almost as if Sen. Kerry doesn’t realize that 1) a host of federal laws already on the books, notably tax provisions, do purposely shape the way businesses compensate their executives; 2) lawyers, unlike business execs, practice under professional ethical codes which are supposed to bar them specifically from charging excessive fees; 3) lawyers who claim to represent the government (and thus the public) come under some of the most stringent ethical constraints of all. (“Senate Democrats Strike Proposal to Limit Fees for Lawyers in Tobacco Case”, AP/Tampa Bay Online, May 8; Stephen Moore, “Targeting lawyers who got rich off tobacco trials”, Scripps Howard/Nando Times, May 2) (& welcome Law.com readers). (DURABLE LINK)

May 9-11 — Update: “U.S. is sued for deaths of crossers”. “The families of 14 illegal entrants who died crossing the desert east of Yuma in May 2001 have filed a $42 million lawsuit against the U.S. Department of the Interior.” As we reported a year ago when the cases were at an earlier procedural stage, “The suit charges the government with failing to authorize the placement of water stations intended for use by unlawful visitors, though it knew smugglers of immigrants were active in the desert area.” (Michael Marizco, Arizona Daily Star (Tucson), May 8). (DURABLE LINK)

May 8 — “No Crueler Tyrannies”. Dorothy Rabinowitz’s long-awaited book on the mass-child-abuse accusation frenzy of the 1980s and 1990s is now available at this link. It collects and extends the widely acclaimed Wall Street Journal reporting that prepared the way for the author’s 2001 Pulitzer Prize (review by Carol Iannone, Commentary, May; C-SPAN “Booknotes” interview with Brian Lamb, May 4; Suzanne Fields, “A cruel tyranny at home”, syndicated/TownHall, Apr. 3; other reviews at Amazon site). (DURABLE LINK)

May 8 — More on Edwards’ law-firm donations. Washington periodical The Hill digs deeper into the curiously uniform $2,000 contributions Sen. John Edwards’ presidential campaign got from so many receptionists, paralegals and other low-level staffers at plaintiff’s law firms. The $2,000 donors include many employees who had not given to candidates or even voted in the past, and others who are listed on the voting rolls as Republicans. Many spouses and relatives of the staffers likewise contributed the maximum. Some of the munificent staffers have recently gone through the kind of personal financial reverses — bankruptcy filings, for example — which would not seem to correlate in the natural order of things with having a large available checkbook for political donations. “In many instances, all the checks from a given firm arrived on the same day — from partners, attorneys, and other support staff.” Employees denied that their law-firm employers had signaled any willingness to reimburse the donations, which would constitute a violation of federal law. (Sam Dealey, “Donations to Sen. Edwards questioned”, The Hill, May 7). (DURABLE LINK)

May 7 — Mississippi investigation heats up. Per the Times of South Mississippi (Hattiesburg), the “net may be widening” in the FBI’s previously reported investigation of improper ties between Mississippi judges and well-known trial lawyers (see Oct. 9-10 and 11-13, 2002). “Sources said this week as many as 25 indictments could be issued …While reports of the investigation have focused on the Gulf Coast, sources said the probe now includes campaign contributions from trial lawyers connected to Southwest Mississippi,” renowned as the center of intense litigation against pharmaceutical companies. (“Bob Pittman, “FBI widening its investigation of campaign funding”, Times of South Mississippi (Hattiesburg), May 5. See also “Diaz’s dad testifies before grand jury”, Jackson Clarion Ledger, Apr. 12; Jerry Mitchell, “Judicial probe intensifying”, Jackson Clarion Ledger, May 2).

“Meanwhile,” the Hattiesburg paper continues, “four trial lawyers who have been active in lawsuits against prescription drug manufacturers are named as defendants in a growing number of court actions in Jefferson County. In at least four suits filed to date, trial lawyers Dennis Sweet, Shane Langston, Richard Freese and Richard Schwartz, all of Jackson, have been named as defendants in cases in which it is alleged that the four either withheld settlement money from clients or failed to pay hired ‘runners’ who were employed to enroll plaintiffs in cases which the lawyers filed in several different counties in Mississippi, including Jasper County.” (May 5 article, cited above). See also Bob Pittman, “Judge asked to step aside in trial lawyer suit”, May 1; Bob Pittman, “Suit alleges lawyer used ‘fake clients'”, May 1. (DURABLE LINK)

May 7 — Jury selection in Britain. Notwithstanding the understandable outcry over a recent case in which a British judge excluded prospective jurors from a politically sensitive trial based on their religion, the general rule in the English system is for jurors to be drawn from a near-universal pool and selection to be made at random. “English lawyers are not pestered by jury consultants: they do not exist here. We do not have days of jury selection before a trial starts, as I have seen for myself several times in the United States, with prospective jurors questioned in depth and sometimes with aggression by lawyers anxious to explore possible prejudices. Defense barristers in England used to have the right of seven (then whittled down to three) peremptory challenges without any need for courtroom interrogation….But Parliament abolished peremptory challenges by the defense in 1989, and although not technically abolished, ‘standing by for the Crown’ [the equivalent for the prosecution] now seldom occurs.” For-cause challenges are rare as well. (Fenton Bresler, “Picking juries — or not”, National Law Journal, Mar. 17, not online). (DURABLE LINK)

May 6 — “Robber sues clerk who shot him during holdup”. Muncie, Ind.: “A convicted robber is suing the convenience store clerk who shot him as he fled after a holdup. Willie Brown, 44, claimed the clerk acted ‘maliciously and sadistically’ in firing five shots as Brown ran out of Zipps Deli with money from the store’s cash register.” Brown, who was struck by bullets in the back and side, pleaded guilty to robbery and was sentenced to four years in prison. His earlier convictions included one for robbery and two for burglary. (AP/Indianapolis Star, Apr. 18). And in Great Britain, “Government lawyers trying to keep the Norfolk farmer Tony Martin behind bars will tell a High Court judge tomorrow that burglars are members of the public who must be protected from violent householders.” (Robert Verkaik, “Government lawyers say burglars ‘need protection'”, The Independent (UK), May 5). Plus: in Bentonville, Ark., inmate Kenneth J. Lewis II is suing Nina Baugh for $140,000 in damages; according to affidavits, Lewis was shot by Baugh after he attempted to burglarize her family’s pawn shop and another business. Lewis was sentenced in January to 12 years’ imprisonment after he pleaded guilty to commercial burglary and aggravated assault (Tracy M. Neal, “Convicted burglar sues woman who shot him during crime”, Benton County Daily Record, Apr. 19). (DURABLE LINK)

May 6 — Year’s most injudicious judges. The National Law Journal‘s annual survey of misbehavior on the bench includes jurists alleged to have slept with litigants, offered to fix cases, set new records for rudeness, and run a Ponzi scheme from chambers, not to mention the jurist who is said to have referred to himself as “God”. (Gail Diane Cox, “The Injudicious: Judges who crossed the line — or erased it”, May 5). (DURABLE LINK)

May 5 — Friends in high places, cont’d. A bill expanding wrongful death damages — a top priority of the state’s trial lawyer association — is moving quickly through the GOP-controlled New York state senate; it happens that the “head of the Judiciary Committee and the sponsor of the bill is big-time trial lawyer John DeFrancisco (R-Syracuse). It’s not just Democrats like Assembly Speaker (and trial lawyer) Shelly Silver who are in the lawyer lobby’s pocket.” (“Lawyer leeches would bleed N.Y.C.” (editorial), New York Daily News, Apr. 18)(more on bill, Business Council of New York State)(see Dec. 13-15, 2002, Oct. 4, 2000). And in Kansas, “Gov. Kathleen Sebelius used her first veto to reject a bill designed to promote rural tourism. Specifically, the bill would shield from lawsuits farmers and ranchers who, for a fee, let people watch and take part in some farm activities. … The strongest opposition to the bill came from the Kansas Trial Lawyers Association, which employed Sebelius as executive director before her election to the House in 1986.” (Steve Painter, “Sebelius vetoes farmer liability shield”, Wichita Eagle, Apr. 16). While with the KTLA Sebelius “worked closely with the Legislature as a lobbyist” (bio) and then went on to attract widespread notice as her state’s insurance commissioner before running for governor. (DURABLE LINK)

May 5 — Prospering despite reform. Some observers thought the Private Securities Litigation Reform Act of 1995 law “was aimed at putting [class action firm] Milberg Weiss — and especially partner William Lerach, the lawyer many corporate executives love to hate — out of business. … Instead, according to a new study by Stanford Law School’s Securities Class Action Clearinghouse and Cornerstone Research, Milberg Weiss is doing better than ever.” (Tamara Loomis, “Milberg Weiss Stronger Than Ever Despite Reform Act”, New York Law Journal, Apr. 24). An analysis for the Cato Institute by Adam S. Pritchard of the University of Michigan Law School concludes that the law has, as intended, worked to raise the average quality of securities suits and weed out those with least merit. (“Should Congress Repeal Securities Class Action Reform?”, Cato Policy Analysis, Feb. 27 (executive summary, full text in PDF format)). (DURABLE LINK)

May 3-4 — “Streets Strewn With Glass, Gold”. Don’t miss this profile of D.C.’s subculture of “accident investigators” who solicit participants in car crashes to file lawsuits, often bombarding their phones with evening and early-morning calls for days. “The lawyer who introduced him to the business was killed by a car while standing on an exit ramp, apparently talking with accident victims, [“personal injury specialist” Warren] Johnson says.” (Libby Copeland, Washington Post, May 1). (DURABLE LINK)

May 3-4 — By reader acclaim: “Student sues over top title”. “A Moorestown [N.J.] High School senior, contending that the district superintendent is engineering new rules that would force her to share the title of valedictorian with another student, sued school officials yesterday. Blair L. Hornstine, 18, who aspires to be a lawyer, asked a federal judge to prevent the school from declaring valedictorian anyone other than the student with the highest GPA.” (John Shiffman, Philadelphia Inquirer, May 2; Tanya Barrientos, “Student’s lawsuit shows lack of class”, May 3). Update May 13: Hornstine wins suit (DURABLE LINK)

May 1-2 — It ain’t heavy to him, he’s my brother. In September, according to the National Law Journal‘s “Verdicts and Settlements” column (Oct. 7, 2002, not online) a Texas jury awarded $134,000 to Jennifer Grobe, an employee of the Granite & Iron Store in Fredericksburg. “According to Grobe, she suffered two herniated lumbar discs when she lifted one of two 100- to 125-pound granite tables that the store’s owners had left in the entrance”. Why Grobe’s claim went to a jury in the form of a lawsuit, rather than to the workers’ comp system, is not clear from the context.

The bit in the NLJ‘s report that drew our attention was the following: Grobe’s suit alleged that her employer was negligent “for placing the tables in the entrance and for failing to comply with store policy by not having two male employees available.” Perhaps we’re missing something, but wouldn’t the employer have faced likely liability exposure if it had enforced a policy of “having two male employees available” to handle heavy deliveries? As any self-respecting sex-discrimination litigator would point out, such a policy closes off some work opportunities to women and trades on impermissible (no matter how generally accurate) stereotypes of men as wielding greater upper-body strength. (DURABLE LINK)

May 1-2 — Those litigious Americans. “An ad for Dutch brewer Heineken NV depicts lawsuit-happy Americans suing each other over spilled beer…The idea is that Heineken is so good it makes Americans abandon their litigious natures.” (Erin White, “National Lampoon: U.K. Ads Satirize American Demeanor”, Wall Street Journal, Apr. 28, online subscribers only). (DURABLE LINK)


May 20 — Suing ’til the cows come home. From a Forbes article on why the city of Fresno, Calif. and its surrounding Central Valley are so economically depressed: “Then there is the assault from the greenies. In Fresno’s surrounding counties, the Center on Race, Poverty & the Environment [a unit of the federally funded California Rural Legal Assistance — ed.] has used lawsuits to halt 125 new and expanded dairy projects since 1998, projects that would have increased the state’s milk cow population by a third.” (Lynn J. Cook, “Economic Death Valley”, Forbes, May 26). See also Larry Serpa, “Dairies can coexist with environment”, Visalia Times-Delta, Nov. 3-4, 2001; Michael Boccadoro, “Activist groups do more to cause poverty than cure it”, Dairy Business, Feb. 2002, both reprinted at DairyCares site. (DURABLE LINK)

May 20 — “A Grand Façade”. “[Few Americans] have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens.” (W. Thomas Dillard, Stephen R. Johnson, and Timothy Lynch, “A Grand Façade: How the Grand Jury Was Captured by Government”, Cato Institute Policy Analysis #476, May 13 (executive summary; full paper in PDF format)) (DURABLE LINK)

May 19 — Sauce for the gander dept. Texas: “A major criticism of class-action lawsuits is that the public often gets nothing but coupons while their lawyers wind up with millions of dollars. If a proposed law makes it through the Legislature, the lawyers may be getting coupons, too. Sen. Bill Ratliff, R-Mount Pleasant, is proposing that lawyers who win class-action suits get the same thing that their clients get. If half the award to the clients is in coupons and discounts, the lawyers will get half their fees in coupons and discounts, too.” (Terry Maxon, “Bill would give attorneys same class-action payout as clients”, Dallas Morning News, May 5)(via Houston Citizens Against Lawsuit Abuse). (DURABLE LINK)

May 19 — “Lawyers spoil fun”. Georgia: “Families and kids who found summertime fun and enjoyment each year at the Krystal River Water Park in Evans will have to find somewhere else to cool off in the months ahead. The park is closing up shop because its liability insurance costs jumped from $8,000 a month to a whopping $58,000 a month. Customers couldn’t possibly afford to pay the higher admission price park owner Ken Edwards would have to charge to offset the 700-percent premium increase.” (Augusta (Ga.) Chronicle, May 11). (DURABLE LINK)

May 19 — “Law firms in tobacco suit seek $1.2b more”. Massachusetts: “As Beacon Hill grapples with a fiscal crisis, the lawyers who worked on the state’s lawsuit against the tobacco industry are demanding the state now pay them an additional $1.25 billion in legal fees. In recent court filings, four law firms, led by Brown Rudnick Berlack Israels of Boston, asked a Superior Court judge to enforce a contract that called for the lawyers to be given 25 percent of whatever proceeds Massachusetts received in the case. … The lawyers’ push to obtain more of the tobacco funds [on top of the $775 million they have already been awarded] has roiled the legal community in Massachusetts and nationally, with some worrying that the case will reinforce an image of avarice that dogs trial lawyers.” (Frank Phillips, Boston Globe, May 4)(see Jan. 2-3, 2002). (DURABLE LINK)

May 16-18 — Go ahead and have your Oreos (for now). The San Francisco lawyer who announced that he was suing Kraft/Nabisco (see May 13) now says he’s dropping the action and “only wanted to get the word out about the dangers of unlabeled fats contained in the popular black and white cookies. …[‘]Now everybody knows about trans fat.’ He expressed no remorse for using California courts as a publicity tool.” (Ron Harris, “SF lawyer says he’s dropping suit against Oreo cookies”, AP/San Francisco Chronicle, May 14). Bloggers Brian Peterson (May 13) and Timothy Sandefur (May 14) have their doubts about whether it’s actually consistent with legal ethics to file lawsuits in search of free publicity for causes, while George Mason University law professor David Bernstein, an old friend and collaborator of ours who’s just launched his own law blog, notes that (like it or not) lawsuits are often extraordinarily effective as bids for attention (May 15, archives busted, scroll down). Meanwhile the New York Times, which ran an “Editorial Observer” commentary favorable to the McDonald’s obesity suit (see Feb. 19), chimes in with an article presenting the Oreo affair exclusively from the plaintiff’s point of view, with not a syllable of dissent or skepticism about the suit’s merits (Marian Burros, “A Suit Seeks to Bar Oreos as a Health Risk”, New York Times, May 14). On the other hand, Chicago Sun-Times columnist Mark Brown rejoices that he’s “found a way to finance my children’s college education. … I don’t intend to quit until I’ve eaten all 45 cookies in the package.” (“In search of the lethal dose of Oreo cookies”, May 14). (DURABLE LINK)

May 16-18 — After California bounty-hunting scandal, lawyers win again. When people talk about the trial lawyers’ controlling the California legislature, this is the sort of thing they have in mind. For several months editorial and public opinion in the state has registered outrage at lawyers’ use of the state’s broad unfair-competition law to extort cash settlements from thousands of small-business owners (see Jan. 15, Mar. 3). But “The attorneys, to the utter surprise of no one, emerged as victors in a showdown hearing of the Assembly Judiciary Committee. Voting largely along party lines, in what was clearly a scripted scenario, the committee killed three bills that would have imposed some reforms on the unfair competition law — UCL, as it’s called — and approved a lawyer-backed substitute that contains only superficial changes and, if enacted, would actually make it easier to collect money in UCL cases.” The committee passed “a measure written by the personal injury attorneys lobby, Consumer Attorneys of California, [which] in conjunction with another lawyer-written measure in the Senate, would impose very mild new requirements on attorneys filing UCL suits, but it would also add a provision, called ‘disgorgement,’ that would allow more money to be obtained from UCL defendants and thus increase plaintiffs’ leverage. Recent state Supreme Court decisions had barred ‘disgorgement’ in UCL suits.” (Dan Walters: “Democrats side with lawyers over small-business owners”, Sacramento Bee, May 9). (DURABLE LINK)

May 16-18 — “Suit Seeks to Keep Elephant at L.A. Zoo”. “A woman has filed suit to stop the Los Angeles Zoo from sending its female African elephant, Ruby, to the Knoxville Zoo in Tennessee, a move she said would break a longtime bond between the animal and a female Asian elephant, Gita.” (Carla Hall, Los Angeles Times, May 15) (see also SoCalLaw) (DURABLE LINK)

May 15 — Judge kicks class-action lawyers off case. “It was a stunning ruling by a federal judge exposing what she saw as lawyers trying to settle a big class-action lawsuit for their own benefit and with little regard for their clients. U.S. District Judge Elaine E. Bucklo last month booted six Chicago-area lawyers off a national class-action suit that accused H&R Block Inc. of cheating customers who took out tax-refund loans. In her ruling, she chastised the lawyers for doing little spadework to prove their case. The settlement fund was to be capped at $25 million for a potential class of 17 million people. The lawyers, whom she described as ‘inadequate,’ would have received $4.25 million.” (Ameet Sachdev, “Class-action reform pushed into spotlight”, Chicago Tribune, May 1; “Federal Judge in Illinois Rejects Settlement In Suit Against H&R Block Over Refund Loans”, BNA Class Action Litigation Report, Apr. 2; Mark Tatge, “A Pox on Both Houses”, Forbes, May 26). (DURABLE LINK)

May 14 — NTSB blames pilot error, but airport told to pay $10 million. “A Cook County jury awarded $10.45 million to the family of a pilot killed in 1996 when the executive jet he was at the controls of slid off the runway and burned at Palwaukee Municipal Airport. The pilot, Martin Koppie, 53, had been accused in earlier lawsuits of causing the crash that killed three other people.” The new verdict, on the other hand, throws $9.9 million worth of blame onto the municipalities of Wheeling and Prospect Heights, which own and operate the airport, for allegedly locating a drainage ditch too close to the runway. “In a 1998 report, the National Transportation Safety Board faulted Koppie for not aborting the takeoff and co-pilot Whitener for not taking ‘sufficient remedial action.’ In 2001, a Cook County jury awarded $18.9 million to Whitener’s family, who had argued that Koppie caused the crash and Chicago-based Aon Corp. was responsible as his employer.” (Michael Higgins, “$10 million award in ’96 plane crash”, Chicago Tribune, May 7). (DURABLE LINK)

May 14 — “Prosecutor had ordeal as defendant”. An assistant Massachusetts attorney general gets caught up in charges of sexual harassment that mushroom into criminal charges before eventually collapsing, not before turning his life and reputation upside down. “Exculpatory evidence that surfaced during [Michael] Atleson’s trial, prosecutors now say, cast serious doubt on the credibility of his accusers.” Despite Atleson’s acquittal and the withdrawal of other charges against him, a spokesman for Suffolk District Attorney Daniel Conley has no apologies: “The system worked for Mr. Atleson”, he claims. Read the story and see whether you agree (Ralph Ranalli, Boston Globe, Apr. 14) (DURABLE LINK)

May 13 — Lawsuit’s demand: stop selling Oreos to kids. “Oreo cookies should be banned from sale to children in California, according to a lawsuit filed by a San Francisco attorney who claims that trans fat — the stuff that makes the chocolate cookies crisp and their filling creamy — is so dangerous children shouldn’t eat it. Stephen Joseph, who filed the suit against Nabisco last week in Marin County Superior Court,… [is a “public interest lawyer” who has also] formed a nonprofit corporation called BanTransFats.com, Inc.” (Kim Severson, “Lawsuit seeks to ban sale of Oreos to children in California”, San Francisco Chronicle, May 12). “Fast food restaurants are facing claims that hamburgers can be as addictive as heroin in the next twist to the obesity lawsuits that threaten McDonald’s and Burger King. John Banzhaf, the self-styled ‘legal terrorist’ who pioneered tobacco litigation in the 1960s,” contends that studies suggest that fat-laden food can produce the same sorts of changes in the brain as powerful drugs. (Simon English, “Burgers are ‘as bad as heroin’, activist claims”, Daily Telegraph (UK), May 9). More: Lance Gay, “Food industry balks at mandatory labeling”, Scripps Howard/Bremerton, Wash. Sun, May 9; “A Twinkie Tax”, CBS News, May 12. (& update May 16-18: suit dropped) (DURABLE LINK)

May 13 — Update: court installs valedictorian. “A high school student won sole rights to Moorestown High School’s valedictorian title Thursday when a judge ruled that she should not have to share the honor with two other students.” (see May 3-4) “U.S. District Judge Freda Wolfson ordered the Moorestown district to name Blair L. Hornstine the valedictorian for the class of 2003.” (“Student Wins Valedictorian Lawsuit In Moorestown”, NBC10.com, May 9). Kimberly Swygert has a lot of commentary on the case at her No. 2 Pencil blog (May 9, May 2). (DURABLE LINK)

May 12 — Shouldn’t have let him get so drunk. Australia: “A Norlane man is suing Geelong Football Club for allowing him to get too drunk at a president’s lunch. …In Supreme Court documents seen by the Geelong Advertiser, Gregory Allan Clifford claims he consumed ‘excessive quantities of liquor’ supplied by the club at a president’s lunch about two years ago. Mr Clifford claims he fell down a set of stairs at the club function and severely injured himself. In the civil lawsuit against the club he claims the club should have exercised reasonable care to conduct the function in a way where people drinking were reasonably safe.” In a case that made considerable headway in the Australian courts before recently being dismissed, a woman sued a New South Wales rugby club for allegedly continuing to serve her alcohol although she was intoxicated; the “woman had claimed she was hit by a car while ‘wandering drunkenly’ 100 metres away from the club, the Supreme Court documents said.” (Natalie Staaks, “Cats sued”, Geelong Advertiser, May 8, no longer online) (via Brain Graze) (DURABLE LINK)

May 12 — Malpractice studies. Congress’s Joint Economic Committee publishes a new study finding that the medical malpractice litigation system performs poorly in both its major social roles: deterring medical negligence and fairly compensating the negligently injured. Reform including liability limits would offer substantial benefits that could include billions in annual budgetary savings to the federal fisc and improvements in medical care affordability that could permit millions of Americans to be priced back into the health insurance market. (Senior Economist Dan Miller, “Liability for Medical Malpractice: Issues and Evidence”, Joint Economic Committee, May (PDF format)). A similar study, focusing on Texas: Chris Patterson, Colleen Whalen and John Pisciotta, “Critical Condition”, Texas Public Policy Foundation, April (PDF format). In an April poll of Texas Medical Association members, nearly two-thirds of the 1,027 physicians responding “say the climate in which they practice medicine has forced them to deny or refer high-risk cases in the past two years.” (“Doctors forced to limit or deny patient care”, Citizens Against Lawsuit Abuse Houston website, undated).

Although Massachusetts’s situation is not as bad as that as many other states, it is still seeing a departure of respected doctors from the liability-wracked field of obstetrics. “‘You start to think maybe this isn’t worth it,’ said Dr. Ronald Rubin, 41, of Shrewsbury, who gave up obstetrics after being sued and is now completing an anesthesia residency. ‘My case was dismissed, but I got deposed. It was six years of going back and forth and taking time off from work. It took a tremendous toll.'” (Liz Kowalczyk, “Insurance costs leave one less baby doctor”, Boston Globe, Apr. 27). And following a tripling of its insurance premiums, a 16-doctor radiologist practice in the Daytona Beach, Fla. area has announced that it intends to stop performing mammograms, which is particularly problematic since the practice currently performs the majority of the mammograms carried out in Volusia and Flagler counties. (“Radiologists say they’ll stop performing mammograms on June 1”, AP/Daytona Beach News-Journal, May 8)(see Nov. 2, 2000). (DURABLE LINK)


May 30-June 1 — “Judge Allows Lawyer to Add Shell Oil as Nightclub Fire Defendant”. Rhode Island: “Attorney Ronald Resmini, who sued for damages in federal court last month, said he added Shell Oil and its affiliate, Motiva Enterprises LLC, to his lawsuit because The Station nightclub owners distributed tickets to their club from a Shell gas station they owned. ‘They were giving away free tickets if you bought so much merchandise,’ Resmini said.” Lawyers’ quest for deep pockets has already resulted in the naming of brewer Anheuser-Busch and the town of West Warwick, among other defendants. (AP/MSNBC/7 News Boston, May 29). (DURABLE LINK)

May 30-June 1 — “Diet Drug Litigation Leads to Fat Fees”. “A federal judge in Philadelphia has awarded interim fees of more than $150 million to 83 plaintiffs’ law firms for their work in the massive fen-phen diet drug litigation that led to a $3.75 billion class action settlement. The interim fees are just a fraction of what the plaintiffs’ lawyers could ultimately earn, since it covers only work up to June 30, 2001. In their fee petition, the lawyers asked for $567 million.” (Shannon P. Duffy, The Legal Intelligencer, May 21)(see Sept. 27-29, 2002, and links from there). And, reports Texas Lawyer: “A group of Houston plaintiffs’ lawyers who were major players in fen-phen litigation in the late 1990s are now jumping into the ephedra arena and plan to use many of the tactics they learned in fen-phen suits in the new litigation.” Ephedra, an herbal remedy, promotes weight loss and energy but can have serious side effects. (Kelly Pedone, “Lessons Learned in Fen-Phen Suits Factor Into Ephedra Cases”, Texas Lawyer, Apr. 15)(see Sept. 10, 2001). (DURABLE LINK)

May 30-June 1 — “Buchanan & Press”. Viewers who tuned into the popular MSNBC debate show last night (Thurs.) saw our editor debate former ATLA president Barry Nace on the merits of Common Good’s “early offers” proposals for limiting lawyers’ contingency fees (see May 29) A full transcript is likely at some point to be posted here. (DURABLE LINK)

May 29 — Hold the gravy? Common Good, the reform organization headed by author Philip Howard, has launched a new campaign to limit the fees plaintiff’s lawyers can charge in cases that settle promptly. “The proposal would require plaintiffs’ attorneys to submit a notice of a planned lawsuit to defendants in contingency fee cases. If a settlement offer is made and accepted within 60 days of the notice, the attorney must charge an hourly rate that cannot exceed 10 percent of the settlement amount.” (Elizabeth Neff, “Plan Would Cap Contingency Fees”, Salt Lake Tribune, May 25). Petitions to this effect have been filed in recent weeks by lawyers working pro bono in Alabama, Arizona, California, Colorado, Maryland, Mississippi, New Jersey, New York, Ohio, Oklahoma, Texas, Utah and Virginia. (Daniel Wise, “Attorney Fees in Personal Injury Cases Targeted”, New York Law Journal, May 8; Adam Liptak, “In 13 States, a Push to Limit Lawyers’ Fees”, New York Times, May 26). (DURABLE LINK)

May 29 — Decorating for reconciliation. Okay, for a change, here’s a vignette that made us think maybe there’s hope for the profession: “Though hardly sentimental in the courtroom, Ms. Gold-Bikin [divorce attorney Lynne Z. Gold-Bikin of Philadelphia’s Wolf, Block, Schorr & Solis-Cohen LLP] says she often urges settlement and, even, reconciliation…. Coupons for free marriage-counseling sessions are set out on the coffee table. … ‘I’m a divorce lawyer who believes in marriage. So I started collecting old wedding photos and licenses. Then I found that if I put them up around the office, clients would have to walk past them and, hopefully, think twice about what they were about to do. There are plenty of marriages we’re never going to save. But there are a lot we can work on. Many people who come here shouldn’t be getting divorced. They’re just stuck, and I hope this makes them reconsider.'” (Nancy D. Holt, “The rite of matrimony”, CareerJournal.com (WSJ), May 15; also appeared in Wall Street Journal, May 14, as the “Workspaces” column). (DURABLE LINK)

May 28 — Vitamin class action: some questions for the lawyers. Last month “appeal court justices in San Francisco did something unusual: They mailed out a letter asking lawyers in a massive vitamin price-fixing class action to explain a few things. Why, the 1st District Court of Appeal wanted to know, are so many law firms involved? How did the number of coordinated cases grow by 12 in one six-month period? How many out-of-state law firms are involved? Which of the defendants previously entered guilty or no contest pleas to criminal charges?” At least fifty class action law firms nationwide are hoping to split a $16 million fee pot, but Oakland, Calif. attorney Larry Schonbrun, the nation’s best-known objector to class actions, says there’s “no reason why much fewer law firms could not have handled this case”. And: “This is a money machine. It’s feeding at the trough.” (Mike McKee, “Enriching the Record”, The Recorder, May 27). (DURABLE LINK)

May 28 — “Sex, God and Greed”. Forbes on the priest scandals and the associated “litigation gold rush” which could leave the Roman Catholic Church facing $5 billion in payouts. “The lawyers who are winning settlements from Catholic dioceses are already casting about for the next targets: schools, government agencies, day care centers, police departments, Indian reservations, Hollywood. … The lawyers are lobbying states to lift the statute of limitations on sex abuse cases, letting them dredge up complaints that date back decades.” (Daniel Lyons, Forbes, Jun. 9). Sidebars: “Battle of the Shrinks” (role of recovered memory in some cases); “Heavenly Cash” (questionable claims). Our editor weighed in a couple of years ago on the practice of lifting statutes of limitation. (DURABLE LINK)

May 27 — “State is suing ex-dry cleaners”. California Attorney General Lockyer is suing retired owners of Mom-and-Pop dry cleaners in the town of Chico under the federal Superfund law, accusing them of pouring dry-cleaning chemicals down their drains decades ago. “Bob and Inez Heidinger — he’s 87, has Alzheimer’s disease and is blind in one eye; she’s 83, has bone marrow cancer and needs shoulder surgery” — are being sued for $1.5 million on charges (which they deny) of disposing of PCE in such a manner between 1952 and 1974, when they sold the business. Also being sued is “Paul Tullius, a 57-year-old retired Air Force pilot, and his wife, Vicki, who own a warehouse that last housed a dry cleaner in 1972 — 16 years before they bought the building without knowing its entire history.” “This is the most draconian law you could ever imagine,” says Tullius. “…Can you imagine what that does to your life? I’m sort of thinking this isn’t the country I thought it was.” (Gary Delsohn, Sacramento Bee, Apr. 28). (DURABLE LINK)

May 27 — Courtroom assault on drugmakers. A week or two ago the New York Times somewhat belatedly discovered that trial lawyers have ginned up a large amount of well-organized litigation against pharmaceutical makers over alleged side effects. (Alex Berenson, “Giant drug firms may face lawsuits”, New York Times/Oakland Tribune, May 18). Some reactions: Derek Lowe (“Because That’s Where the Money Is”, Corante, May 16), Ernie the Attorney (May 18), MedPundit (May 19), MedRants (May 19), William Murchison (“Lawyers Who Make You Sick”, syndicated/TownHall, May 20) (the last of these via SickofLawsuits.org, a new health-focused site associated with the Citizens Against Lawsuit Abuse tort reform groups). (DURABLE LINK)

May 24-26 — “‘Trial Lawyers Get Spanked'”. Our editor had an op-ed Friday in the Wall Street Journal celebrating the Florida appeals court’s striking down of the absurd $145 billion class action verdict in the Engle tobacco case. (Walter Olson, WSJ/ OpinionJournal.com, May 23). Other columns on the decision include Jacob Sullum, “Appealing Price”, syndicated/Reason.com, May 23, on the appeals bond issue; and George Will, “The States’ Tobacco Dilemma”, syndicated/Washington Post, May 23, on the hypocrisy of state governments. (DURABLE LINK)

May 24-26 — Hitting the jack-potty. “A city worker has hit the jack-potty. Cedrick Makara, 55, scored a $3 million jury verdict last week because he hurt his thumb trying to get out of the john of a Manhattan building where he works.” The building’s manager and owner are on the hook. The stall in question “had a missing doorknob. [Attorney Sheryl] Menkes said Makara reached his hand through a hole where the knob should have been and pulled the door toward him just as someone entering the bathroom pushed the door in,” causing him to injure tendons in his thumb and miss six months of work as a city claims examiner. (Helen Peterson, “He’s flush after $3M potty suit”, New York Daily News, May 21). More: Boots and Sabers comments on the case (May 25). (DURABLE LINK)

May 22-23 — Court overturns $145 billion Engle award. Not to say “we told you so” about yesterday’s Florida appellate decision reversing the tobacco-suit atrocity, but, well, we did tell you so back in 1999: “The smart money is betting last week’s Miami anti-tobacco jury verdict will be overturned on the issue of class certification — whether every sick Florida smoker should have been swept into a class suing cigarette makers despite vast differences among individuals on such issues as why they decided to smoke or quit.” We had more to say about the case, also in the Wall Street Journal, a year later (July 18, 2000), as well as on this site. The latest decision is on FindLaw in PDF format and a very fine decision it is indeed — if this keeps up, the Florida courts may start getting their reputation back (Manuel Roig-Franzia, “$145 Billion Award in Tobacco Case Voided”, Washington Post, May 21). (DURABLE LINK)

May 22-23 — Must be why the show has so many fans. Received recently from the publicity department at St. Martin’s Press, publisher of our editor’s latest book: “The Rule of Lawyers by Walter Olson will be a prop in the show, Sex and the City! It will be a prop in Miranda’s apt. thoughout the season. The pilot airs early June.” (DURABLE LINK)

May 21 — Update: McMahon’s mold claim worth $7 mil. “Entertainer Ed McMahon reaped a $7 million settlement from several companies he sued for allowing toxic mold to overrun his Los Angeles home and kill his beloved dog, a national mold litigation magazine reported”. (“McMahon Gets $7 Mln in Toxic Mold Lawsuit – Report”, Yahoo/Reuters, May 7)(see Apr. 25, 2002). Addendum: blogger Stu Greene writes, “I wonder if the Prize Patrol delivered one of those oversized novelty checks with balloons tied to it.” (May 21) (DURABLE LINK)

May 21 — Auto-lease liability: deeper into crisis. Honda has become the latest automaker to announce that it will stop leasing new cars to buyers in New York, Connecticut and Rhode Island (see Mar. 12-14, 2003, Aug. 26, 2002). The problem is 1920s-era “vicarious liability” laws in those three states, fiercely guarded by the trial lawyer lobby, which expose leasing and rental car companies to unlimited personal injury claims when their customers get into accidents. Honda’s pullout follows withdrawals this spring by GM and Ford as well as by J.P. Morgan Chase, a major provider of auto financing in the Northeast. (“Industry report: Honda to stop leasing in 3 states”, Detroit Free Press, May 20 (scroll down); “American Honda Finance Corp. to Suspend All Leasing In Three States”, PR Newswire, May 19; “Auto lease fleece” (editorial), New York Daily News, Apr. 22 (scroll down); SaveLeasing.com; “Ford Blames Liability Law for Decision to Stop Leasing Cars in NY”, Insurance Journal, Apr. 7; Zubin Jelveh, “Leasing Companies Exit Left and Right”, Newsday, May 4). “More than $1.5 billion in such claims are pending in New York, said Elaine Litwer, legislative coordinator for the National Vehicle Leasing Association…. [Proponents of easing the law] received a big boost last month when the 75,000-member New York State Bar Association split from the trial lawyers and said the vicarious liability law was never meant to apply to leases and supported changes.” (Barbara Woller, “GMAC leaves New York’s auto leasing market”, Journal News (Gannett, Westchester County), May 1; John Caher, “State Bar, Trial Lawyers Part Ways on Tort Reform”, New York Law Journal, Apr. 8). More: Jun. 9, 2003; Sept. 5, 2004. (DURABLE LINK)

April 2003 archives


April 10-13 — Posting slowdown. Updates will be sparse for a while as our editor responds to a family emergency. See you, most likely, early next week. (DURABLE LINK)

April 10-13 — Public Citizen’s bogus numbers. The supposed consumer group now concedes that it put out erroneous numbers which made Pennsylvania doctors look artificially bad (“Watchdog group backs off claim that Pa. doctors top nation’s repeat malpractice payouts”, AP/Scranton Times, Apr. 2; see our Mar. 15-16 report). In January, in a move timed to undercut President Bush’s Scranton speech calling for malpractice reform, Public Citizen claimed that 10.6 percent of Keystone State doctors had paid out on more than one malpractice allegation; it now admits it can verify only a figure of 5.4 percent. The false numbers were widely reported in the press, and the AP last week published an unusual correction (AP/Kansas City Star, Apr. 4). Pennsylvania Medical Society spokesman Chuck Moran called for Public Citizen to apologize: “It’s ironic that they initiated a report called ‘Medical Misdiagnosis: challenging the malpractice claims of the doctor’s lobby’, when, in fact, they are the ones that misdiagnosed the situation.” The accuracy of the group’s figures have also been challenged in Colorado (“Monitoring malpractice” (editorial), Denver Post, Mar. 10).

There is at any rate a more fundamental problem with the litigation lobby’s contention that the current crisis is caused by a small number of bad doctors who attract most malpractice suits and should simply be driven out of practice. As Binghamton, N.Y. neurologist Dr. Jeffrey Riben points out, the number of malpractice lawsuits doctors face often have less to do with their competence than with their specialty and geographic location. “If you look around at physicians that get sued a lot, they tend to be highly prestigious names, people who get difficult cases in difficult specialties where the results are predestined not to be as good as those of people who handle simpler cases, Riben said. ‘Those are the people who have litigation. So it you want to eliminate those people with multiple suits, you would have to eliminate all of our neurosurgeons, all of our orthopedic surgeons, all of our obstetricians, anybody working in an emergency room and everybody reading mammograms,’ he said. ‘I think you would agree if we eliminated those specialties we would not improve health care.'” (Eric Durr, “Docs, public interest groups battle over malpractice issues”, Albany Business Review, Mar. 14). (DURABLE LINK)

April 10-13 — Employers liable for not filtering raunchy spam? At least if workers have complained, employers may be at risk of liability under sexual harassment law if they fail to install blocking software on email inboxes, say various legal experts. Quotes our editor (Declan McCullagh, “Por nspam: Are employers liable?”, CNET News, Apr. 7) (DURABLE LINK)

April 10-13 — Best and worst state courts for business. The U.S. Chamber of Commerce releases the results of a detailed Harris poll of business respondents. The “top five states today as evaluated by corporate America at doing the best job at creating a fair and reasonable litigation environment are: Delaware, Nebraska, Iowa, South Dakota, and Indiana whereas in 2002 Delaware, Virginia, Washington, Kansas, and Iowa were listed as the top 5. The worst perceived states today are: Mississippi, West Virginia, Alabama, Louisiana, and Texas, exactly the same as in 2002.” California scores low marks for punitive damages and treatment of class actions; Hawaii is criticized for onerous discovery and the difficulty of getting weak cases thrown out quickly; New York and Minnesota win plaudits for their handling of scientific and technical evidence. Where does your state rank? (overview) (press release in PDF format) (poll results as Word document) (press conference) (DURABLE LINK)

April 9 — Schools roundup. In Camden, N.J., second grade teacher Eileen Blau has sued student Daniel Allen for running into her in a school hallway at an “excessive rate of speed”, thus inflicting “severe and multiple injuries, some of which are permanent in nature,” according to her suit. Young Allen, who at the time of the incident was 11 and weighed about 90 pounds, didn’t know his family was the target of a claim until the sheriff’s deputy showed up at the door. “He didn’t understand why someone would want to do this to him,” said his mother. “He said ‘Why does she hate me? Why is she doing this. I said I was sorry.'” (Bill Duhart, “Teacher sues student over hall collision”, Cherry Hill, N.J., Courier-Post, Mar. 29). The American Bar Association Journal presents an overview of suits arising when girls aren’t picked for the cheerleading squad (Stephanie Francis Cahill, “Bring It On”, Apr. 4; see Jun. 4, 2001). And “[a] group of attorneys who sued Mississippi schools for millions of dollars on behalf of custodians, bus drivers and cafeteria workers has turned to Alabama, filing more than 60 similar lawsuits”. (Scott Parrott, “Local school systems sued”, Tuscaloosa News, Apr. 4). More on the Jackson, Miss.-based School Litigation Group, which according to one of its principals, former congressman and secretary of agriculture Mike Espy, “takes a contingency fee of between 40 percent and 50 percent, depending on the complexity of the case”: Gary Young, “Overtime Suits 101”, National Law Journal, Mar. 19. (DURABLE LINK)

April 7-8 — Bag of treasures. Cornell Curry, 57 and homeless in New York City, says the Partnership for the Homeless’s drop-in center on W. 23rd St. negligently lost a duffel bag of his belongings last fall; he had been unable to stop by to retrieve the belongings because he was spending three weeks in jail after being arrested for public urination. The shelter “admits it did toss one of Curry’s bags in the garbage, but said that one contained only three soiled pieces of clothing.” Au contraire, says Curry in his lawsuit: he avers that the contents of the lost duffel bag included “an $18,000 star sapphire ring, a $4,000 gold watch, $200 in cash and ‘extremely valuable’ photographs, including his parents’ 1937 wedding photo”, entitling him to $2 million in compensatory and $2 million in punitive damages. Last month Manhattan Supreme Court Justice Rosalyn Richter denied a motion to throw out the claim: “It is simply too early to resolve whether the plaintiff did, in fact, leave the bag in the defendant’s possession and whether the plaintiff also shares some responsibility for the alleged loss,” Richter said. (Helen Peterson, “Homeless, or Mister money bag?”, New York Daily News, Mar. 20). (DURABLE LINK)

April 7-8 — Malpractice crisis hits sports-team docs. Some of organized sports’ most memorable highlights have come when athletes played through pain and injury, but increasingly the result is to create a risk of litigation against team physicians, who are exposed to monetary damages that are potentially enormous given their patients’ potential loss of earning power. Some doctors are withdrawing from the care of professional athletes, and organized football is discussing schemes to indemnify team doctors for their escalating insurance bills. (Jason Cole, “With malpractice rates skyrocketing, many doctors are hesitant to care for professional athletes”, Miami Herald, Apr. 2). Our editor’s Feb. 27 Wall Street Journal piece on lawsuits blaming obstetricians for cerebral palsy is now online, thanks to the folks at Texans for Lawsuit Reform. And welcome readers from Sydney Smith’s excellent medical weblog MedPundit, which has run posts in recent weeks on California’s MICRA and insurance rates, what happens to patients who win awards (plus North Carolina crisis notes), the problem with physician “report cards”, Public Citizen, and a link to this Tallahassee Democrat op-ed (Mar. 3) on how Florida’s malpractice crisis is harming its medical schools. (DURABLE LINK)

April 7-8 — Edwards leads in fund-raising. The North Carolina senator aces his Democratic rivals in the White House money race: “The key to Edwards’ success may have come from trial lawyers, a group of which Edwards is a part and from whom he received 80 percent of political action committee money in recent years.” (“Dem Presidential Hopefuls Compete for Cash”, FoxNews.com, Apr. 2; Richard A. Oppel, Jr., “With $7 Million in Donations, Kerry Trails Democratic Rival”, New York Times, Apr. 3). However, a January poll conducted for the Raleigh News & Observer found the senator none too popular in his home state: “The poll found that 47 percent of active Tar Heel voters disapprove of Edwards’ decision to seek the presidency, while 37 percent approve”. (“Poll: Edwards wouldn’t beat Bush in North Carolina”, AP/Charlotte Observer, Jan. 18) (via “Robert Musil“). (DURABLE LINK)

April 7-8 — U.K.: “Killer wrongly sacked for axe attack”. “A convicted murderer who tried to attack a colleague with an axe was wrongly sacked from his job, an employment tribunal ruled yesterday.” The tribunal in the British Midlands ruled that Preston city council was wrong to fire James Robertson, 50, without notice from his health inspector post after he “brandished the [axe] in an Indian restaurant in Preston after an argument”. However, the tribunal ordered the council to pay only “two weeks’ wages, or £807, for breach of contract,” rejecting a plea for more extensive compensation by Robertson, who “gave evidence while handcuffed to a prison guard.” The council “had employed him when he was released from jail on licence after being convicted of kicking a man to death in Glasgow in 1971.” (Daily Telegraph, Apr. 3) (& welcome Dave Barry readers — the great humorist generously calls us “the always fascinating Overlawyered.com” (archives not working, Apr. 7)). (DURABLE LINK)

April 4-6 — Gun lawsuit preemption moves forward. On Wednesday a House Judiciary subcommittee held a hearing on H.R. 1036, the Protection of Lawful Commerce in Arms Act, which would “prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others.” Our editor testified in favor of the measure (his prepared statement). The proceedings were televised live on C-SPAN III and rebroadcast overnight on C-SPAN II (schedule, Apr. 2). Yesterday the full House Judiciary Committee gave its approval to the legislation, with Virginia Democrat Rick Boucher joining all panel Republicans in support of the measure. John Tierney’s New York Times account (“A New Push to Grant Gun Industry Immunity From Suits”, Apr. 4) quotes our editor on the subject and mentions The Rule of Lawyers (see second page of article). (DURABLE LINK)

April 4-6 — C-SPAN again. Speaking of C-SPAN II, the network’s “BookTV” feature will be rebroadcasting our editor’s Manhattan Institute speech on The Rule of Lawyers at 3:30 p.m. Eastern on Saturday, April 5. (DURABLE LINK)

April 4-6 — A bond too far. Even the editorialists of the New York Times agree that it’s “absurd” and “the kind of ruling that erodes the credibility of our legal system” to require Philip Morris to post a ruinous $12 billion bond before it can appeal the class action ruling of a judge in plaintiff-friendly Madison County, Ill. (“Too Costly an Appeal”, New York Times, Apr. 4)(see Wednesday’s post; more). “As for Judge [Nicholas] Byron, it’s difficult to divine if he was playing jurist or friendly croupier. He sought to sweeten the pot by awarding the State of Illinois $3 billion in punitive damages, out of the total $10.1 billion judgment.” (“A Madison County jackpot”, Chicago Tribune, Apr. 2). Perhaps influenced by the prospect that the state will be thrown this slice of the booty, the Illinois Senate is refusing (for now) to lift a finger to reduce the bonding requirement (“Panel nixes bill to help Philip Morris”, Chicago Sun-Times, Apr. 4)(Update Apr. 30: judge agrees to reduce bond somewhat). (DURABLE LINK)

April 2-3 — Appeals bonds, again. Once again the business end of an otherwise outlandish mega-verdict turns out to be the requirement that a defendant post a bond before it can appeal: Philip Morris says it is unable to put up the requisite $12 billion needed to appeal the recent Madison County, Ill, verdict against it (see Mar. 24). Officials of the fifty states are running around in near-hysteria: they’re bothered not by the possible injustice or community-and-investor disruption involved in bankrupting the giant company, whose holdings include Kraft Foods and Oscar Mayer, but instead by the prospect that an insolvency will jeopardize the flow of billions of dollars into their own coffers under the tobacco settlement. So the AGs, supposedly second to none in their loathing of the tobacco companies, are making noises about intervening to try to get the appeals bond requirement lowered. This is the second time around (at least) for this issue: state governments also mobilized after the Engle tobacco case in Florida threatened bonding requirements high enough to destroy the industry. See also the Loewen case (Ameet Sachdev, “States line up against smoking case bond”, Chicago Tribune, Apr. 1; Neil Buckley, “Philip Morris ‘cannot afford’ $12bn bond”, Financial Times, Apr. 1; “Philip Morris woes hurt stock”, AP/Seattle Times, Apr. 1; “Appeals bond a symptom of need for tort reform”, Bloomington (Ill.) Pantagraph, Apr. 1; related). (DURABLE LINK)

April 2-3 — After the R.I. club fire. “Ignoring calls from peers to hold off on lawsuits for now, a Providence lawyer [earlier this month] fired the second salvo in what is expected to become a barrage of litigation resulting from the fire at The Station. The lawsuit was filed in Providence Superior Court on behalf of Lisa Kelly of Swansea, a 27-year-old single mom who was among the 99 people killed in the Feb. 20 blaze at the West Warwick, R.I., nightclub. The lawsuit was filed by Ronald Kingsley, the father of Kelly’s daughter, Zoe Jean Kingsley. Kelly’s mother, Barbara Nagle of Attleboro, yesterday said she knew nothing about the suit and that Kingsley hadn’t had any contact with his daughter in three years as far as she knew….

“The latest lawsuit names 19 individuals and companies as defendants, including the St. Louis-based beer giant Anheuser-Busch Inc., whose Budweiser brand accompanied some advertising for the ill-fated show. Anheuser-Busch Inc. yesterday denied any role in promoting or sponsoring the concert in a statement sent to the Herald. ‘The company that distributes Anheuser-Busch Inc. products in Rhode Island is an independent business that has the right to use our beer brand name in its advertising,’ wrote Stephen Lambright, a company lawyer.” (Thomas Caywood, “Second suit filed over fire at Station”, Boston Herald, Mar. 11)(see Mar. 10-11). See also Roger Parloff; “Where There’s Smoke, There’s Ire”, Fortune, Mar. 19; Deroy Murdock, “Lawyers turn tragedy to farce”, Scripps Howard/Naples, Fla. Daily News, Mar. 28. (DURABLE LINK)

April 2-3 — “Mayor: WTC Personal Injury Suits Could Bankrupt NYC”. “New York City Mayor Michael Bloomberg on Monday warned that personal injury lawsuits filed by people who claim their long-term health was damaged by the clean-up of the World Trade Center site could bankrupt the city in the next 20 years.” (Reuters/Yahoo, Mar. 31). See also Paul Howard (Manhattan Institute), “A 9/11 Tort-Fest”, New York Post, Aug. 10, 2002, and New York Law Journal coverage: Mark Hamblett, “9/11 Victims’ Suits Flood Court to Meet One-Year Time Limit”, Sept. 11; Tom Perrotta, “New York City Creates Unit for Suits From Sept. 11”, Sept. 12; Daniel Wise, “Sept. 11 Fund Master Found to Give ‘Fair Compensation'”, Oct. 2). (DURABLE LINK)

April 1 — Maybe crime pays dept.: not an April Fool’s joke. Gerald Skoning’s annual National Law Journal roundup of the year’s weirdest cases in labor and employment law includes the following gem: “Richard N. Shick — while employed as a caseworker in the Illinois Department of Public Aid — robbed a convenience store in Joliet, Ill., armed with a sawed-off shotgun. Afterward, he sued the department, claiming that he was discriminated against because of his disabilities and his sex, the trauma of which caused him to commit the robbery. The jury awarded him $5 million in damages and $166,700 in back pay. The U.S. District Court for the Southern District of Illinois partially vacated and dismissed the judgment, but awarded $303,830 in front pay, even while he serves a 10-year sentence. Thankfully, the 7th Circuit reversed.” (“Legal Weirdness at Work”, Mar. 26; Gail Diane Cox, “Here’s the tort reform poster boy for 2002”, National Law Journal, Oct. 28). Also on Skoning’s list: voodoo signs ruled not an unfair labor practice; employer dodges harassment charge after conduct is ruled “even-handedly offensive” rather than discriminatory; hemorrhoids not a protected disability under ADA. (DURABLE LINK)


April 30 — “Lawyers who won $10 bil. verdict had donated to judge”. Okay, so it’s among the year’s least surprising headlines: “Illinois campaign records show 19 lawyers or relatives connected to a law firm [Korein Tillery] that recently won a record tobacco judgment gave almost $10,000 in political donations to the presiding state judge last year, according to a published report”. Perhaps a bit more surprising: Judge Nicholas Byron’s campaign had also gotten $6,000 from the law firm that represented the defendant, Philip Morris. “Illinois law doesn’t prevent judges from accepting money from attorneys who argue cases in their courts, and there are no limits on the number or amount of contributions that politicians and judges can accept.” (AP/Chicago Sun-Times, Apr. 14; “Tobacco Case Judge Got Campaign Funds From Lawyers: Report”, Wall Street Journal, Apr. 11). An analysis for the St. Louis Post-Dispatch “found that judges running for election or retention in Madison County last year averaged more than $100,000 each in campaign receipts. That’s three times the roughly $29,000 average the newspaper found for judges statewide and 10 times the $10,000 average in Cook County’s crowded judicial system. The average take for Madison County judges is about four times more than for judges in neighboring St. Clair County, which has roughly the same population.” Most of the donations came from practicing lawyers. (Kevin McDermott, $218,000 for one judge”, St. Louis Post-Dispatch, Apr. 27)(see Mar. 24, Apr. 2, Apr. 4).

State governments — and the municipal-finance lawyers that have helped them “securitize” streams of future tobacco booty — heaved a sigh of relief when Judge Byron earlier this month agreed to reduce Philip Morris’s appeals bond (to a still extraordinarily onerous level), thus averting a possible bankruptcy filing and interruption of payments to the states (Brenda Sandburg, “Tobacco Decision Gives Bond Lawyers Breathing Room”, The Recorder, Apr. 15). Judge Byron also decreed in the original verdict that the tobacco company should pay the plaintiff’s team legal fees approaching $1.8 billion, which works out to $13,100 per hour even if you swallow the lawyers’ contention that they spent a staggering 135,500 hours of work on the case over the past three years. If you’re curious to see the audit trail documenting those hours, your curiosity may be in vain. “Charles W. Chapman, a retired Illinois appellate court judge who testified in support of such fees for the plaintiffs’ attorneys, “said that it was not his duty to verify the hours Tillery worked. ‘It’s basically an honor system,’ Chapman said. ‘I don’t have any way of knowing if he worked those hours.'” (Trisha L. Howard and Paul Hampe, “Record legal fee averages to $13,100 an hour”, St. Louis Post-Dispatch, Apr. 6). (DURABLE LINK)

April 28-29 — Latest Rule of Lawyers publicity. At Forbes.com, reviewer Robert Lenzner pens a rave for our editor’s new book: “Anyone in the market for a truly gripping read about tort lawyers should skip [John] Grisham’s [latest] novel and instead pick up Walter K. Olson’s nonfiction book The Rule of Lawyers, a brilliant expose of the way courts are being overwhelmed by mass tort actions. … Grisham’s indictment of the tort bar can’t hold a candle to Olson’s thorough journalistic impeachment of the dangers posed by these lawyers.” (Robert Lenzner, “The Rule of Lawyers”, Forbes.com, Apr. 21). The blurb/summary for the review provided by the Forbes.com editors is reasonably flattering as well. In Paris, meanwhile, Le Monde discusses our editor’s “dernier livre” and also provides a link to this website, which it describes as “très documenté”. (Claire Ané, “Dommages et intérêts collatéraux de la justice américaine”, Le Monde, Apr. 22). The March/April issue of the American Spectator features a substantial excerpt from the book’s chapter on trial lawyers and politics (Walter Olson, “The Lawsuit Lobby”, not online). In the print version of National Review, the book is favorably reviewed by Doug Bandow (“Shyster Heaven”, Apr. 21). And the Boston Globe‘s Charles Stein mentioned the book and quoted our editor in a recent column on the states’ interest in preventing tobacco companies from going under (“States confront a necessity: ‘evil'”, Apr. 13). (DURABLE LINK)

April 28-29 — Had no idea you can’t launder campaign contributions. “A lawyer for Tab Turner, the head of a Little Rock law firm under investigation by the U.S. Department of Justice, suggested Thursday that his client had not been aware of an election law that prevents him from reimbursing employees who contribute to U.S. Sen. John Edwards’ presidential campaign.” (John Wagner, “Edwards donor will cooperate”, Raleigh News & Observer, Apr. 25). “Twenty people who were identified on Edwards’s report as ‘paralegal’ employees each gave $2,000, as did nine persons described as ‘legal assistants.'” Most of those contacted by the Washington Post claimed that they had chosen to donate their own money, but two employees at Turner’s firm indicated that they expected to be reimbursed by their employer. “Federal election laws prohibit a person from funneling donations through someone else to conceal their source. Such practices would enable the reimburser to exceed the legal contribution limit for individuals, recently raised to $2,000 from $1,000 per election.” Turner is among the best-known attorneys specializing in product liability suits against automakers. (Thomas B. Edsall and Dan Balz, “Edwards Returns Law Firm’s Donations”, Washington Post, Apr. 18). (DURABLE LINK)

April 28-29 — “Solicitor billed for 81-hour day”. Pennsylvania: “The lawyer for Upper Darby’s financially pressed schools paid back $19,361 in fees after The Inquirer showed him evidence that he had billed the district for more than 24 hours’ work on each of four days. …Barry Van Rensler, who was paid $421,327 last year and more than $2.8 million in his last 14 years as district solicitor, said the billings in question were innocent mistakes involving misplaced decimal points. … District officials say they are satisfied that the errors in Van Rensler’s billings were innocent.” One bill was for an 81-hour day. (Barbara Boyer and Tina Moore, Philadelphia Inquirer, Apr. 27). (DURABLE LINK)

April 28-29 — Wouldn’t want to look unsafe. City officials in Oakland, Calif. would like to crack down on businesses’ right to use “exterior security devices” to protect their premises. Aside from unsightliness, “It gives a sense that our community is not a very safe city,” said City Manager Robert Bobb. Last month a City Council committee “backed a plan … to prohibit barbed wire fences in commercial districts but stopped short of supporting a more far-reaching proposal to eliminate burglar bars, roll-down doors and retractable security gates, common fixtures throughout the city.” Many small business owners aren’t impressed: “‘There is a lot of crime in Oakland. Who’s trying to kid who?’ Josefina Lopez, owner of Corazon Del Pueblo, said at her Mexican imports store and art gallery on International Boulevard, near High Street. … When riots broke out after the Super Bowl in January, Lopez watched from her store as vandals and looters broke nearly every window of the Kelly-Moore Paint store across the street. Her shop, with a wrought-iron gate in front of its doors and metal roll-down doors over the windows, escaped unharmed.” (Janine DeFao, “Oakland trying to avoid that ‘war zone’ look: Ban on metal bars, roll-down doors considered”, San Francisco Chronicle, Mar. 26). (DURABLE LINK)

April 25-27 — Price of bad hairdo: $6,000. “The bad hairdo blamed by a woman for her emotional tailspin was worth $6,000, a St. Louis County jury decided Wednesday in a verdict that delivered far less than she sought.” Geremie Hoff sued the local Elizabeth Arden salon after an Aug. 2001 hair straightening job was followed by brittleness and fall-outs. Hoff’s attorney had said “his client was so distressed that she retired early from the University of Missouri at St. Louis, where she taught, and also stopped guiding tours to Italy.” A defense lawyer, however, “noted that Hoff didn’t retire until nearly a year later, after her hair returned. He said her tour business would have suffered anyway, in the aftermath of the terrorist attacks of Sept. 11, 2001.” (William C. Lhotka, “Jury awards Creve Coeur woman $6,000 in suit over hairdo”, St. Louis Post-Dispatch, Apr. 9; Cynthia Billhartz, “What’s the price of a really bad hair day?”, Apr. 14). (DURABLE LINK)

April 25-27 — Gun lawsuit columns. Did the U.S. House of Representatives ignore proper principles of federalism when it recently passed a bill that would pre-empt some lawsuits in state court seeking to saddle gun manufacturers with the costs of crimes? Columnist Jacob Sullum takes up the question, quoting our editor’s recent Capitol Hill testimony on the subject (“Federalist Case”, syndicated/Reason, Apr. 18). Also citing our work on gun lawsuits recently have been columnists Chuck Colson (“Standing on Dangerous Ground”, syndicated/TownHall, Apr. 16); Wayne LaPierre of the National Rifle Association, in his second monthly column in a row (“Standing Guard”, American Hunter, May, not online); and Paul Craig Roberts (“Gun control: the criminal lobby”, syndicated/Town Hall, Apr. 23). (DURABLE LINK)

April 25-27 — “Reforming Class-Action Suits”. “[C]ompanies operating nationwide get haled into local courts that plaintiffs’ lawyers have found particularly willing to accept class actions — and to hit out-of-state firms with costly judgments. This situation allows state judges at the county level to issue rulings that ‘federalize’ their decisions — effectively writing rules for the whole country. In recent years, for example, an Illinois court imposed Illinois law on the insurance laws or regulations of New York, Massachusetts, and Hawaii. Class-action suits have also become an ATM for unscrupulous lawyers, who win millions of dollars for themselves but sometimes leave clients empty-handed.” The Christian Science Monitor lends its editorial endorsement to the Class Action Fairness Act, which has passed the House and is now pending in the Senate (Apr. 17). And Baseball Crank, which we have been tardy in thanking for its kind link to us, has a highly recommended post (Apr. 16) on “Federalism’s Edge: the point at which an exercise of state power (by a state or group of states) infringes on the right to self-government of the citizens of the other states”, an issue that underlies both the CAFA and gun-suit-preemption controversies. (DURABLE LINK)

April 25-27 — Manufacturer sued after bullet fails to take down lion. Professional big-game hunter Rolf Rohwer is suing bullet manufacturers after an unfortunate occurrence on safari in Africa in which he shot a charging lion from about 30 yards away but was mauled anyway. According to his lawyer’s allegations, the Federal Cartridge Co.’s Trophy Bonded Bear Claw bullet, even if suitable for hunting such big game animals as rhinoceros, elephant, buffalo and hippopotamus, was insufficiently lethal when aimed at a lion because the smaller animal’s thinner skin permitted the bullet to pass through with minimal damage. (Howie Padilla, “Injured big-game hunter takes aim at bullet manufacturers”, Minneapolis Star Tribune, Apr. 16). Update Jan. 15, 2005: judge dismisses complaint. (DURABLE LINK)

April 24 — Posting to resume tomorrow. Following two weeks in which our editor, called away by a death in his family, was without web-posting capability, we expect to pick up where we left off momentarily.

April 14-23 — (On hiatus).

March 2003 archives, part 2


March 20 — Kids’ art on walls ruled a fire hazard. In what might be a bit of an overreaction to the recent deadly nightclub blaze in West Warwick, R.I., the Fire Department and building inspector of Attleboro, Mass. “sent word this month to the public schools: From now on, zero tolerance for breaking fire codes. Those bright-colored handprints and cheery stick figures have got to come down from the walls.” School board member Richard Correia “wonders, in this cautionary age, what might be next to go. ‘What do we do about our children who hang their coats in those little closets?’ Correia said. ‘Are they fire retardant?'” (Joanna Weiss, “Does future of art ed hang on safety”, Boston Globe, Mar. 12). (DURABLE LINK)

March 20 — Florida: “New clout of trial lawyers unnerves legislators”. Trial lawyers have built a position of powerful influence in the Florida legislature, in particular by “[s]upporting Republicans who have shown an appreciation for the civil justice system”, as a trial lawyer official puts it. In what Gov. Jeb Bush called “kind of a breath-taking example of their power”, the president of the state senate couldn’t even get a hearing in his own chamber for one of his major priorities, a bill to limit pain-and-suffering damages in fast-growing litigation against nursing homes (see Mar. 19). Limits on medical malpractice suits may be doomed in the state as well (Alisa Ulferts and Michael Sandler, St. Petersburg Times, Mar. 17). (DURABLE LINK)

March 19 — Jury clears Bayer in cholesterol-drug case. In perhaps the most widely watched product liability trial of the year so far, the New York Times may have bought the plaintiff’s lawyers’ case, but a Corpus Christi jury didn’t, and awarded $0.00 instead of the requested $560 million. Just another 8,400 plaintiffs to go, of whom the “vast majority”, according to Bayer’s lawyer, are not in fact injured (“Jury Clears Bayer of Liability in Baycol Suit”, AP/Quicken, Mar. 18; “Bayer lawyer: Most Baycol plaintiffs not injured”, Reuters/Forbes, Mar. 18) (DURABLE LINK)

March 19 — $12,000 a bed. “Nursing homes [in some states] now pay close to $12,000 per bed annually on liability insurance, according to [a new] report [by AON Risk Consultants].” Nationally, liability costs per bed grew from an average of $300 annually a decade ago to $1,120 in 1997 and $2,880 in 2002, according to the study. Defenders of rising litigation say it provides long-overdue recourse against bad care, but the former administrator of the recently closed Gadsden Nursing Home in Quincy. Florida, doesn’t buy the idea that only poorly run homes can expect to be sued. “‘We were ranked 51st out of 668 homes in the state the day we closed. If you’re ranked in the top 7.5%, you’re not a bad home,’ he said.” (Reuters Health, “Legal liability costs surge for US nursing homes”, Mar. 14). (DURABLE LINK)

March 18 — Would you go into medicine again? “Then there is the issue of so-called malpractice — a rapidly growing income-transfer system from doctors to lawyers that, quite apart from its toll on doctors, gives injured parties ever-diminishing shares of the proceeds. … [T]here must be a system for removing from practice those physicians who are guilty of multiple errors. (As I know from my service on the D.C. Medical Society’s disciplinary committee, this is now, ironically, made exceedingly difficult by the threat of suit from those under scrutiny.)” (Devra Marcus, “I’m a Doctor, Not an Adversarial Unit of the Health Care Industry”, Washington Post, Mar. 16). (DURABLE LINK)

March 18 — “Runaway asbestos litigation — why it’s a medical problem”. One doctor’s view of the morass (Lawrence Martin, M.D., MtSinai.org, Nov. 18, 2002. The site relates to Cleveland’s former Mt. Sinai hospital, not the one in New York). (DURABLE LINK)

March 17 — Australian roundup. Sued if you do, sued if you don’t dept.: “A netball star banned from playing because she was pregnant was awarded $6750 yesterday for hurt, humiliation and loss of match payments. … Netball Australia excluded any pregnant women from playing because of fears of legal action over injuries to mothers or unborn babies.” (Ellen Connolly, “Banned pregnant netballer wins damages for discrimination”, AAP/Sydney Morning Herald, Mar. 14). “A woman whose little finger was cut while working on a processing line at a doughnut factory has been awarded damages of [A]$467,000”. (Leonie Lamont, “Cut little finger reaps $467,000 damages”, Sydney Morning Herald, Mar. 12). “Non-lawyers are constantly baffled by legal decisions that seem to have little to do with reality, let alone justice,” opines commentator Evan Whitton, offering some examples from the Down Under legal scene (“The law of diminishing reality”, Sydney Morning Herald, Dec. 12). (DURABLE LINK)

March 17 — Steering the evidence: an update. Forbes follows up on the episode described in our May 23 and June 26, 2000 posts: “In June 2000 a judge found that three Texas lawyers (or someone they hired) had tampered with evidence in a $2 billion suit blaming Chrysler for a deadly car crash. The judge slapped the San Antonio lawyers with nearly $1 million in sanctions — one of the largest such penalties in memory. Last August an appellate court called the lawyers’ conduct ‘an egregious example of the worst kind of abuse of the legal system.’ And now the FBI is investigating the trio’s actions.

“What’s happened to the lawyers? Not much. Two are still practicing in Texas and the third moved out of the country. Only $289,000 of the penalty has been paid to Chrysler.” (Joann Muller, “Crass Actions”, Forbes, Mar. 31).(& update Jun. 10). (DURABLE LINK)

March 15-16 — “Public deceit protects lawsuit abuse”. The Pennsylvania Medical Society excoriates Nader’s Public Citizen for putting out a report on the Keystone state malpractice situation that the physicians say was marred by such basic errors as double and triple counting (legislative testimony, society president Edward H. Dench, Jr., MD, Mar. 5; press release, U.S. Newswire/ Boston.com, Mar. 5). We regret to inform the good docs that it seems to be a hopeless task — you can expose Public Citizen’s output as shoddy as frequently as you like, but much of the media will go right on treating it as gospel. And Radley Balko looks at the U.S. Public Interest Research Groups — which cooperate with the rest of the Nader empire in fighting litigation reform — reminding us of just how disreputably the PIRGs get their money (“Public Shakedown Artist”, TechCentralStation.com, Mar. 3). Mickey Kaus also comments (scroll to Mar. 13). Update: more flak for the PIRGs’ New York affiliate, NYPIRG (David E. Seidemann, “Scrutinizing the Nader Legacy”, Health Facts & Fears (American Council on Science and Health), Mar. 2, 2004) (via Megan McArdle). (DURABLE LINK)

March 15-16 — Class action lawyer takes $20 million from defendant’s side. Eyebrows arch as mass-tort lawyer Joe Rice, best known for the tobacco caper, cuts a deal in which Swiss-owned asbestos defendant ABB agrees to pay him $20 million personally for settling his clients’ pending claims against ABB subsidiary Combustion Engineering; Rice will also, of course, receive a contingency share of what the clients get (Alex Berenson, “Class-Action Lawyer’s Fee Under Scrutiny”, New York Times, Mar. 12). (DURABLE LINK)

March 12-14 — “Automakers may stop leasing vehicles in N.Y.” Major automakers and lenders are pulling out of the auto-lease business in New York, Connecticut and Rhode Island, where laws allow leasing companies to be sued (in their role as titular owners) after a driver of one of their cars gets into an accident. (Kenn Peters, Syracuse Post-Standard, Mar. 11). “General Motors Acceptance Corp. notified dealers [in January] that it will quit buying leases in New York, Connecticut and Rhode Island later this year unless those states change their ‘vicarious liability’ laws, which is unlikely.” (Jim Henry, “GMAC may end leases in three states”, Automotive News, Jan. 15). New York’s state senate has passed a bill repealing the doctrine, but it is given little chance of success in the trial-lawyer-dominated Assembly. Already many lease providers have hiked consumer fees by $600 or so in the high-liability states, a change that affects a large number of consumers, since around a third of cars sold are leased. Trial lawyers are the main power defending the vicarious laws. See also “Repeal sought of 18th-century doctrine affecting car leasing”, AP/Stanford Advocate, Mar. 10; Amy Forliti, “Lender’s pullout hurts R.I. leasing business”, AP/Boston Globe, Feb. 25. For our earlier coverage, see Aug. 26, 2002. (& see update May 21: Honda, GM, Ford, Chase all announce pullouts)

In another ambitious application of vicarious liability, the city of Detroit has argued — and a Michigan appeals court has agreed — that it can go after Ford Credit in court to collect unpaid parking tickets of drivers who lease through Ford; the ruling does however require case-by-case hearings on who was in control of the vehicles at the time of the infractions (“Appeals Court OKs Hearings Over $1M Unpaid Parking Tickets From Ford Credit Leased Vehicles”, Detroit News/Automotive Digest, Jan. 7; Robert Lane, “Ford Can Be Held Vicariously Responsible For Parking Fines”, Blue Oval News, Feb. 4) (via WSJ Best of the Web, Feb. 4). (DURABLE LINK)

March 12-14 — Sports mascots litigation. ESPN does a roundup, noting that the giant stuffed animals and other mascots “spend an inordinate amount of time in the courtroom” (Patrick Hruby, “Page Two: The seedier side of fur and fun” — see “Mascot Court Report” sidebar, Feb. 12). (DURABLE LINK)