October 9-10 — Rumblings in Mississippi. Two big stories out of the Magnolia State: the legislature on Monday passed, and Gov. Ronnie Musgrove indicates that he will sign, a compromise malpractice reform bill intended to relieve the state’s worst-in-the-nation medical liability crisis. Among its terms: capping non-economic damages at $500,000, restricting venue to the county where alleged wrongdoing occurred, and requiring that plaintiffs line up an expert before a suit can proceed. (Patrice Sawyer and Julie Goodman, “Legislature passes civil justice reform”, Jackson Clarion-Ledger, Oct. 8). It also curtails but does not eliminate joint and several liability in medical cases and shortens some time limits for suing. (“Other provisions”, sidebar; Jackson Clarion-Ledger editorial, Oct. 8).
In a separate story that will bear close watching as it unfolds, “Federal authorities are investigating whether state court judges took out loans that were repaid by nationally prominent trial lawyers from South Mississippi whose cases the judges handle. Investigators believe the judges, including state Supreme Court Justice Oliver Diaz Jr. of Biloxi, borrowed thousands of dollars from The Peoples Bank, which has headquarters in Biloxi, and Merchants & Marine Bank in Jackson County. Plaintiffs’ attorneys who try multimillion-dollar cases before the judges subsequently repaid the loans, investigators believe. Paul Minor of Ocean Springs and Richard ‘Dickie’ Scruggs of Pascagoula are being investigated by the FBI and U.S. Attorney’s Office in Jackson, according to a source close to the investigation.” Scruggs, of course, is among the most powerful lawyers in the country and did more than any other figure to engineer the $200-billion-plus settlement between the tobacco industry and state governments; he is also the brother-in-law of Sen. Minority Leader Trent Lott (R-Miss.) Scruggs “has said that he expects to earn about $844 million from tobacco settlements” while Minor expects to receive something like $70 million from tobacco settlements. (Anita Lee, Tom Wilemon and Beth Musgrave, “Loans to Judges Probed”, Biloxi Sun-Herald, Oct. 7; Jerry Mitchell, “Judges’ loans focus of probe”, Jackson Clarion-Ledger, Oct. 8; “Coast newspaper reports lawyer-judge link to loans being checked”, AP/Alabama Live, Oct. 7). Scruggs “denies that he repaid loans for Diaz or any other judge.” (“Investigation Targets Lawyers, Judges & Loans”, WLOX, Oct. 7). Update Oct. 11-13 more allegations; May 7, 2003 investigation widens. (DURABLE LINK)
October 9-10 — Trial lawyers and politics: Michigan, Texas. Two legal reform groups have released studies documenting the flow of trial lawyer money into their states’ politics. Michigan Lawsuit Abuse Watch reveals that the state’s personal injury lawyers “have contributed a total of $426,280 to [Democratic gubernatorial nominee Jennifer] Granholm’s campaign. This is more than the $394,209 she has received from the PACs of all other Michigan special interest groups backing her. Personal injury lawyers have given just $2,900 to Granholm’s opponent, Dick Posthumus.” And Texas Trial Lawyer Watch has a new report out on the gargantuan sums spent by lawyers in that state, with special emphasis on the lengths to which the attorneys are willing to go to conceal their generosity (“Hiding Their Influence“, PDF format) (DURABLE LINK)
October 9-10 — Latest sacked-Santa suit. In Edinburgh, Scotland an actor “hired to play Santa Claus at a shopping centre who was sacked for his allegedly lugubrious manner is suing his former employers for more than £1,500.” Television actor Colin Brown, 50, says he had fulfilled the role for many years past with no complaints of insufficient jolliness. “He is also seeking £10 compensation for a 12-inch square cushion he supplied for the padding and £30 for his size nine wellington boots.” (Edward Black, “Sacked Santa sues ex-employers”, The Scotsman, Oct. 8). For further annals of Santa employment litigation, see Oct. 12 and Dec. 13-14, 2000. (DURABLE LINK)
October 7-8 — Malpractice-crisis latest: let ’em become CPAs. Detailed report in the St. Louis Post-Dispatch of malpractice woes in Missouri and (especially) in adjoining counties of Illinois known for litigiousness, Madison and St. Clair, where “doctors are handing off more patients needing risky procedures to St. Louis medical centers. Doctors in the two counties pay double the premiums of most surrounding Illinois counties because of the flurry of claims filed there,” according to the head of underwriting at the doctors’-mutual insurer that writes more than half of Illinois policies. Insurance is becoming unaffordable for many doctors with records considered less than pristine, such as those with past claims that were resolved for token payments or even for no payment at all.
In litigious Belleville, Ill., patients can obtain a long list of medical services only by heading over to St. Louis. “Several years ago, Belleville physicians decided to transfer all critically ill children to St. Louis Children’s Hospital or Cardinal Glennon Children’s Hospital. Anne Thomure, public relations director for Memorial Hospital in Belleville, said many of these young patients could have gotten comparable care in the community, but liability risks were deemed too great”. “Trauma is routinely sent to St. Louis because of the medical-legal climate,” said one doctor. Other Belleville doctors have stopped handling high-risk pregnancies, administering clot-busting TPA to stroke patients, and performing surgery on complex elbow fractures, which often lead to complications. Many neurosurgeons are shunning brain surgery in favor of relatively safe spinal procedures. Dr. Kathy Maupin “said almost every doctor involved in trauma care gets sued, because outcomes are unpredictable and patients do not have a pre-existing relationship with the doctors.” Don’t miss this priceless quote from the other side, from “Bruce Cook, a personal injury lawyer in Belleville” who “has little sympathy for doctors lamenting liability coverage costs.” “Perhaps the doctors retiring early are the doctors who are sued too much,” he said. “Perhaps they should have been accountants.” (Judith VandeWater, “Insurance rates pinch doctors, care”, St. Louis Post-Dispatch, Oct. 6).
The Bloviator (Sept. 27) summarizes the terms of the federal malpractice-reform bill, H.R. 4600 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2002″, which passed the House Sept. 26 but is considered unlikely to make it past the litigation lobby’s grip on the U.S. Senate. Last Thursday, Pennsylvania doctors held rallies in Philadelphia and Scranton to protest the state legislature’s inaction on malpractice reform (AP/New York Times, undated; MedRants, Oct. 4; Politically Active Physicians Association, organization of Pa. doctors). New York doctors may not be holding demonstrations yet, but according to William Tucker in the New York Post, they pay the highest malpractice premiums in the country. From “1994 to 1999, the average New York jury verdict tripled, from $1.7 million to $6 million. Empire State physicians settled $633 million in malpractice claims in 2000, 80 percent more than second-place Pennsylvania ($352 million) and triple third-place California ($200 million, for twice the population)”. California, unlike New York and Pennsylvania, has a strong cap on noneconomic damages. (New York Post, Sept. 26).
The disarray in Mississippi’s malpractice system “extends to the state’s ambulance companies and their workers”, reports AP. (Matthew Volz, “Paramedics face malpractice suits, too”, AP/Jackson Clarion-Ledger, Sept. 19). A past president of the Mississippi Trial Lawyers Association pooh-poohs the concerns, saying he “cannot recall off the top of my head a single substantial or even moderate verdict against an ambulance company in the state of Mississippi” — note how by framing the issue as one of verdicts only, he gets to sidestep the question of how often ambulance operators are named in complaints resolved before that point. On the Mississippi legislature’s lack of seriousness in pursuing tort reform, see the Clarion-Ledger‘s editorial, Sept. 25.
A study from the American Association of Neurological Surgeons and other neurosurgery groups finds that liability woes have plunged that specialty into a state of emergency across the country. (Sept. 25 study in PDF format, press release, resource page). And while litigation lobby stalwarts such as the misnamed “Center for Justice and Democracy” have tried to scapegoat malpractice insurance providers as the source of the crisis (Sept. 25), a report last month from the U.S. Department of Health and Human Services thoroughly refutes that contention, pointing out that: 1) states that have enacted serious liability limits are not undergoing a crisis; 2) actuarial data show a sharp upturn in the past few years in large medical claims in unreformed states, as well as in the high verdicts which influence the magnitude of settlements; 3) medical malpractice insurers have not generally suffered major losses due to speculative or volative investments, and a relatively small share of their investment is in the stock market; 4) the decreasing competitiveness of the insurance market is itself a reflection of the liability-driven increase in claims expense; and 5) liability reforms in states like California have not made it impossible to sue — the number of claims has not been declining there lately — but have kept medical care affordable, notwithstanding the influence of the much-cited “insurance cycle”. (“Update on the Medical Litigation Crisis: Not the Result of the ‘Insurance Cycle'”, HHS, Sept. 25). (DURABLE LINK)
October 7-8 — “Judge Throws Out ‘Harry Potter’ Copyright Suit”. “”A federal judge has sanctioned an author $50,000 for submitting false evidence in an unsuccessful copyright lawsuit against the publisher of the blockbuster ‘Harry Potter’ series of children’s books. Southern District of New York Judge Allen G. Schwartz found that Nancy Stouffer had knowingly submitted fraudulent documents to the court in an attempt to bolster claims that the author of the ‘Harry Potter’ series, J.K. Rowling, copied several ideas from Stouffer’s unsuccessful children’s stories.” In addition to the $50,000 sanctions, Judge Schwartz ordered Stouffer to pay Rowling’s and her publisher’s attorneys’ fees and costs. Stouffer’s lawyer says he is considering appellate options. (Tom Perrotta, “Judge Throws Out ‘Harry Potter’ Copyright Suit”, New York Law Journal, Sept. 19). (DURABLE LINK)
October 7-8 — Cutting edge of discrimination law. Near Seattle, the Puyallup School District has agreed to settle a two-year-old civil rights suit by paying $7.5 million and instituting diversity training, administrative and curriculum changes to encourage racial diversity. Four black families had sued the school district in 1999 saying it “tolerated and encouraged a racially hostile environment. ‘One specific complaint was against the use of racial slurs in exams and class discussion of books like ‘Huckleberry Finn’ and ‘The Grapes of Wrath.”” (Mike Roarke and Candace Heckman, “Civil rights suit settled in Puyallup schools”, Seattle Post-Intelligencer, Sept. 18 (via Scott Norvell, FoxNews.com, Sept. 23). And the Denny’s restaurant chain says it is looking into contentions that one of its outlets in Springfield, Ill. is behaving in a racially discriminatory manner by not staying open all night. The restaurant in question “recently started locking its doors between 3 and 5 a.m. Sundays, reportedly because a large number of patrons, many of whom have been at nearby clubs that close at 3 a.m., were descending on the restaurant and causing problems, including not paying for food.” The president of the local NAACP branch is hinting at a lawsuit: “Denny’s [on the East Side] will stay open, or other Denny’s worldwide will close from 3 a.m. to 5 a.m.,’ he said. ‘If there’s one Denny’s out there that is closing from 3 a.m. to 5 a.m., then either they’re going to do it worldwide, or they’ll remain open 24 hours.” (Jayette Bolinski, “Denny’s accused of discrimination”, State Journal-Register (Springfield, Ill.), Sept. 12). (DURABLE LINK)
October 7-8 — Blue-ribbon excuses. New York City: “A lawyer representing a couple accused of taking part in three-way sex on a train says they were helping road safety.” Vincent Siccardi says his clients “should be praised for taking the train instead of driving while drunk. Mr Siccardi told the New York Post: ‘Here are two responsible people. They were at a party. They were drinking. It shows that they are responsible. If more people did that, we’d have fewer problems on the road.'” (“Lawyer says couple accused of sex on train were helping road safety”, Ananova.com, Oct. 1). (DURABLE LINK)
October 4-6 — Breaking: L.A. jury docks Philip Morris $28 billion. The plaintiff had been smoking since age 17 and developed lung cancer; the sum awarded by the jury approximately equals the annual gross domestic product of Lithuania. The smooth lawyer who represented Mrs. Bullock, named Michael Piuze, has coaxed a whole series of bizarrely high verdicts out of West Coast juries. (Fox News, Oct. 4). (DURABLE LINK)
October 4-6 — Pets Warehouse owner sues Google. Robert Novak, owner of PetsWarehouse.com, has filed two earlier rounds of pro se lawsuits arising from his claim that his business was defamed in online discussion forums (see May 22 and May 27, 2002 and links from there). Now, in a third round, he is suing search engine Google and several other defendants. His complaint (PDF format) charges that Google failed to remove Usenet archive postings even after being informed that they were defamatory. It also demands damages for Google’s and other search engines’ use of keyword-based “sponsored links”, by which a user’s search on the phrase “pets warehouse” calls up advertising for another online pet store that has paid for the privilege. (Slashdot thread) (overview of case by defense attorney) Further update: Oct. 5, 2003. (DURABLE LINK)
October 4-6 — Commentary-fest. Henry Mark Holzer believes he’s identified the appropriate social response to the campaign for slave-reparations lawsuits: it’s called “Rule 11 sanctions”. (“The Achilles’ Heel of the Reparations Lawsuits”, FrontPage, Oct. 3). The Onion reports that record companies are suing radio stations to stop them from infringing their intellectual property by playing music over the air for free — oh wait, it’s just a parody (we think)(“RIAA Sues Radio Stations for Giving Away Free Music”, Oct. 2). And: “With the assistance and backing of trial lawyers, small and extreme groups are finding it increasingly easy to bypass and subvert the democratic process and impose their agenda on the rest of society by abusing litigation and manipulating the courts,” writes former Wyoming Sen. Malcolm Wallop (“Litigation: The Death of Democracy”, TownHall, Sept. 25). (DURABLE LINK)
October 4-6 — Lawsuit threats vs. campaign speech. “Television station managers in small communities across the nation are being forced this fall to adjudicate a barrage of demands from Democratic and Republican Party lawyers pressuring them to pull political advertisements in closely fought Congressional races — or face the risk of a defamation suit.” (Adam Nagourney and Adam Clymer, “Local Television Stations Become the New Arbiter of Political Fair Play,” New York Times, Oct. 2) (reg). (DURABLE LINK)
October 3 — Lawyers fret about bad image. Bar associations are resorting to all sorts of measures to try to counter the profession’s perceived unpopularity: the Wisconsin Bar has hired consultants “to institute a branding campaign based on focus group response”, while the Florida Bar has budgeted a contemplated $750,000 for its new “Dignity in Law” program (see Jul. 10) which targets 1,000 journalists and government officials described by the group’s president as “influential decision-makers” who will be sent “blast e-mails describing the great work that lawyers and judges do for our clients, in our courtroom and in our communities.” (We hope those 1,000 journalists and influentials have all previously opted into those “blast e-mails” — spam doesn’t make friends, you know.) “Prior to launching the campaign, the Florida Bar surveyed 880 journalists about their attitudes toward the legal profession and rated their stories as positive or negative. As the campaign continues, it will monitor their changing attitudes toward lawyers to measure the campaign’s effectiveness.” If we were Florida journalists, we’re not sure we’d be thrilled to learn that a group of dissatisfied newsmakers who wield writs had decided to “rate” and then “monitor” the tone of our coverage of them.
Meanwhile, on a national level: “Disenchanted with the public outcry against attorneys and the legal profession, Robert Clifford, who heads the American Bar Association’s Litigation Section and is a founding partner of Clifford Law Offices, a personal injury firm in Chicago, personally financed a $250,000 national telephone survey for the ABA of 750 households.” The results could hardly have been welcome. “Only 19 percent of the respondents expressed confidence in lawyers’ work compared with a 50 percent confidence rating for doctors.” (Physician readers, take note, and heart.) The survey effort “also included 10 focus groups in five cities including Chicago and Los Angeles whose respondents repeatedly described attorneys as ‘greedy, manipulative and corrupt.’ … The public lambasted criminal defense, personal injury and divorce lawyers”, praising only real estate and civil rights attorneys. (& see letter to the editor, Oct. 23)
To its credit, the National Law Journal‘s roundup of the matter airs not only the legal establishment’s view — which is that the profession is merely misunderstood and suffering from bad public relations — but also the views of critics both inside and outside the profession who think the best way to improve lawyers’ image would be, well, to start cleaning up the bad things that go on in legal practice. Tallahassee Democrat columnist Bill Cotterell, a critic of the Florida bar program, notes: “People don’t like lawyers gaming the system for personal profit — enormous profit — and not caring who gets hurt.” Cotterell “recommended adopting ‘a loser pays‘ system under which the losing plaintiff in a meritless suit would pay the defendant’s legal expenses.” And Catherine Crier, the Court TV host and former judge whose book “The Case Against Lawyers” is forthcoming momentarily, says bar p.r. campaigns “don’t do anything to address the underlying areas. I’d rather see a campaign that introduces ethics classes.’ Crier would prefer to see the law ‘eliminate contingency fees except in cases aimed at the poor and institute loser pays in all categories. In that way, good lawyers can proceed with dignity and pursue cases that are meritorious, and those pressing frivolous actions corrupting our system will no longer have a forum.'” Hear, hear! (Gary M. Stern, “Polishing the Image”, National Law Journal, Sept. 16). (DURABLE LINK)
October 1-2 — FTC cracks down on excessive legal fees. Here’s an important story that’s flown mostly under the radar: the new leadership of the Federal Trade Commission is taking pioneering steps to protect consumers from exploitative legal fees, under the same mandate by which it cracks down on deceptive or unfair overcharging by businesses generally. “So far this year, the FTC has challenged attorney fees in three proposed class action settlements, winning in two cases. It also has urged the Judicial Conference, which oversees the federal court system, to amend its class action rules in a way that could limit attorney fees, particularly in cases that rely on information already uncovered by government agencies. And the agency recently published a guide for consumers, ‘Need a Lawyer? Judge for Yourself,’ giving advice on how to pick a lawyer — and seek a lower fee. … Trial lawyers and their allies aren’t happy about the FTC initiative.” (Caroline E. Mayer, “FTC Seeks to Limit Attorney Fees in Class Action Suits”, Washington Post, Sept. 30). (DURABLE LINK)
October 1-2 — Australia: seized by the Spirit, wants church to compensate her. Loraine [elsewhere reported Lorraine] Daly, 40, is suing an Assemblies of God-affiliated church in Sydney, saying she was injured one Sunday in 1996 when, gripped by religious enthusiasm, she fell over onto a carpeted floor and was not caught by anyone. “The court was told by Ms Daly’s lawyer that the Sydney Christian Life Centre had been negligent in failing to ensure there were enough ‘catchers’ — people appointed by the church to cushion the fall of those experiencing what is referred to within the Pentecostal movement as being ‘slain in the spirit’. It was also claimed that the church had failed to ensure that the catchers were in position before the Rev Tim Hall started the prayer service which usually brought on such fainting episodes. And the church had not provided falling members of the congregation with a sufficiently padded area to prevent injury.” Ms. Daly wants up to A$750,000 in damages, including future loss of earnings and compensation for “disabilities including headaches, nausea, memory loss, impaired concentration and a feeling of vagueness. …The court also heard, however, that Ms Daly had previously suffered similar ailments after two car accidents in 1986 and 1993.” (Kelly Burke, “Fallen Christian puts faith in the law”, Sydney Morning Herald, Sept. 27). Update Oct. 25-27: judge rules against Ms. Daly. (DURABLE LINK)
October 1-2 — Updates. Judges pull the plug on various bright ideas discussed previously in these pages:
* A judge has dismissed attorney Peter Angelos’s effort to bring the cellphone industry to trial on the theory that using its wares causes brain tumors, ruling that the proffered scientific evidence for that proposition is insufficient (see Apr. 23 and Jan. 11, 2001) (Gretchen Parker, “Judge Dismisses $800M Cell Phone-Brain Tumor Suit “, AP/Washington Post, Sept. 30) (opinion in PDF format)
* In a unanimous decision written by Judge Alex Kozinski, a three-judge panel of the Ninth Circuit has ruled that Judge Vaughn Walker should not have interpreted the 1995 Private Securities Litigation Reform Act as a mandate to take an active lead in selecting plaintiffs’ counsel to run lucrative securities fraud cases. The decision, which may put the kibosh on “auction” methods by which courts induce plaintiff’s counsel to accept work at lower fees, was a victory for Milberg Weiss Bershad Hynes & Lerach in its quest to represent security holders in a suit against Copper Mountain Networks Inc. (Jason Hoppin, “9th Circuit Strikes Down Class Action Fee Experiment”, The Recorder, Sept. 17) (opinion in PDF format)(see Sept. 25, 2001)
* Well, that’s a relief: “A British Telecommunications Inc. patent issued prior to the advent of the Internet does not cover hyperlinking, a New York federal judge ruled … Tossing out British Telecom’s infringement suit against Prodigy Communications Corp., U.S. District Judge Colleen McMahon of the Southern District of New York said no jury could find that Prodigy infringes the patent by providing hyperlinks, the coded, highlighted text that links one Web page to another.” (see Feb. 13) (Brenda Sandburg, “Closely Watched Hyperlink Patent Case Tossed”, The Recorder, Aug. 23). (DURABLE LINK)
October 18-20 — EEOC: employer must accommodate “Church of Body Modification” beliefs. Massachusetts: “Last year Costco Wholesale Corp. fired Kimberly M. Cloutier of West Springfield for refusing to remove [her eyebrow] ring. She filed a $2 million suit against the corporation. Cloutier, 27, belongs to the Church of Body Modification, and maintains that her piercings, which include several earrings in each ear and a recently acquired lip ring, are worn as a sign of faith and help to unite her mind, body and soul. ‘It’s not just an aesthetic thing,’ Cloutier said. ‘It’s your body; you’re taking control of it.’
“Cloutier filed suit against Costco in Springfield’s U.S. District Court after a finding in May by the U.S. Equal Employment Opportunity Commission that Costco probably violated religious discrimination laws when its West Springfield store fired Cloutier in July 2001. The commission’s area director in Boston, Robert L. Sanders, determined that Cloutier’s wearing of an eyebrow ring qualified as a religious practice under federal law, and that Costco refused to accommodate Cloutier.” (Marla A. Goldberg, “Eyebrow ring, firing spark $2 million suit”, MassLive/ Springfield Union-News, Oct. 16) (& see Megan McArdle, Oct. 21, and reader comments).Update Dec. 11, 2004: First Circuit federal appeals court grants summary judgment in favor of store. (DURABLE LINK)
October 18-20 — U.K.: “Dr. Botch” sues hospital for wrongful dismissal. “A surgeon who was struck off the medical register after being held responsible for the deaths of four women and the maiming of six others is suing his former hospital for wrongful dismissal. Steven Walker, nicknamed ‘Dr Botch’, is claiming up to £100,000 in compensation for lost wages and ‘unfair’ treatment after being sacked by the Victoria Blackpool Hospital in Lancashire last November.” (Rajeev Syal and Hazel Scotland, “‘Dr Botch’ issues writ against hospital in claim for £100,000”, Daily Telegraph (UK), Sept. 22). (DURABLE LINK)
October 18-20 — Enron: “Who Enabled the Enablers?”. “Congressional investigators and plaintiffs’ lawyers are closing in on Enron Corp.’s so-called enablers — the banks that made Enron’s suspect deals possible. But the lawyers on those deals haven’t received much attention. Yet.” (Paul Braverman, “Who Enabled the Enablers?”, The American Lawyer, Oct. 8). See also Otis Bilodeau, “Enron Report Casts Harsh Light on Lawyers”, Legal Times, Sept. 30; Otis Bilodeau, “More Lawyers Snared in Enron Trap”, Legal Times, Sept. 3; Susan Koniak, “Who Gave Lawyers a Pass?”, Forbes, Aug. 12. (DURABLE LINK)
October 16-17 — Ohio’s high-stakes court race. A key race to be decided at the polls next month could challenge the four-to-three margin by which a bloc of activist (to say the least) judges currently control the Ohio Supreme Court. Legal reformers’ hopes are riding on Republican Lt. Gov. Maureen O’Connor, running for a vacant seat on the court. Her opponent, Democrat Tim Black, “backed heavily by trial lawyers and labor unions,” is considered likely to vote with the current court majority (its deplorable record) which has expanded liability in many unprecedented ways, struck down democratically enacted tort reform and revived the city of Cincinnati’s lawsuit against the gun industry. (Jim Siegel, “Black vs. O’Connor could change Ohio Supreme Court”, Gannett/Newark, Ohio Advocate, Oct. 14). (DURABLE LINK)
October 16-17 — “Inundations of Electronic Resumes Pose Problems for Employers”. Employers are deluged with resumes arriving by email as well as on paper, each of which represents both a paperwork obligation and a potential source of liability. “Under the current federal standard, anyone who submits a resume electronically is a job applicant. Even people who are not looking at any job in particular or are clearly unsuited — say, a high school student applying for the position of chief executive — qualify. In and of itself, this would not be a concern, but the government also requires every company with more than 100 employees to track the race, gender and ethnicity of every one of these so-called job applicants.” Plaintiff’s lawyers can also demand that a defendant company produce these applications, and then proceed to troll through them for patterns suggesting disparate rejection of protected groups.
With the rise of Internet job postings, the numbers have exploded: “The Boeing Co. has projected that it will receive about 1.3 million resumes this year, compared with last year’s mere 790,000 resumes. Lockheed Martin Corp. has said it gets about 4,000 resumes a day, or upwards of 1.4 million annually.” “I know of a company that keeps a warehouse in Salt Lake City just to store resumes,” says chairwoman Cari Dominguez of the Equal Employment Opportunity Commission. “They’re just so afraid of throwing them away.” For two years the EEOC has been studying how to ease employers’ retention burdens by updating the definition of applicant, but it still hasn’t acted. (Tamara Loomis, New York Law Journal, Sept. 25). (DURABLE LINK)
October 16-17 — “Patient sues hospital for letting him out on night he killed”. Australia: “A man who stabbed his prospective sister-in-law to death hours after being discharged from a psychiatric hospital is suing Newcastle health authorities for damages.” Attorney Mark Lynch said that his client “should be ‘compensated for his premature discharge’ and the tragic events that followed.” After murdering Kelley-Anne Laws in 1995, Kevin William Presland, now 44, spent 2 years in jail and a psychiatric institution. (Leonie Lamont, “Patient sues hospital for letting him out on night he killed”, Sydney Morning Herald, Oct. 15). (DURABLE LINK)
October 16-17 — “Law to Protect Debtors Can Be a Windfall for Lawyers”. Mutiny among the bounty-hunted dept.: The Fair Debt Collection Practices Act is a federal law passed in 1977 to combat harassment and other abuses in debt collection. “In the last decade, the law has also given rise to what some say is an unintended consequence: thousands of federal lawsuits taking issue with the wording of collection letters. …..Successful plaintiffs in these cases are entitled to $1,000, but their lawyers can collect vastly larger sums,” such as $40,000 or $50,000 if the defendant resists, even if the dispute concerns only an arcane matter of wording. Federal judge Gerard L. Goettel has criticized the trend, noting, “There is nothing in the act to suggest that it was intended to create a cottage industry for the production of attorneys’ fees.” “Plaintiffs’ lawyers obtain leads for such suits by scouring the dockets in small claims courts for collection actions and by savvy questioning of people seeking to file bankruptcy actions, [Indianapolis lawyer Dean R. Brackenridge, who represents collection agencies and lawyers,] said. ‘It is oftentimes like Christmas morning,’ he said, imagining the scene in the bankruptcy lawyers’ offices. ‘They’re opening up a grocery sack of collection letters that may give rise to these lawsuits.'” (Adam Liptak, “Law to Protect Debtors Can Be a Windfall for Lawyers”, New York Times, Oct. 6). (DURABLE LINK)
October 16-17 — New York tobacco-fee challenge, cont’d. The Albany paper reports on Judge Charles Ramos’s probe into whether lawyers who helped handle the state of New York’s copycat suit in the tobacco litigation are entitled to an arbitration award of $625 million in fees (see Jul. 30-31). “The New York firms [asking a collective $14,000 an hour for their services] were politically well connected and regular campaign contributors to both Democrats, trial lawyers’ traditional allies, and to Republicans, including [former attorney general Dennis] Vacco and Gov. George Pataki. The Albany firm’s senior partner, Dale Thuillez, represented Pataki’s first inaugural committee. … Since the settlement, the firms have given a total of more than $200,000 to the campaign war chests of both parties.” (Andrew Tilghman, “Tobacco case legal fees under fire”, Albany Times-Union, Oct. 14). (DURABLE LINK)
October 15 — Incoherence of sexual harassment law. The case of men subjected to sexual taunts at the workplace by other men — have they suffered sexual harassment in the law’s eyes, or no? — reveals the lack of any real logical coherence in our current scheme of sexual harassment law. Several law profs seem to think that by taking due note of this incoherence they demonstrate the need to extend the scope of harassment law yet further, to suppress yet more forms of workplace speech and social interaction than currently. (Margaret Talbot, “Men Behaving Badly,” New York Times Magazine, Oct. 13)(reg)(see also Mark Kleiman blog, Oct. 13). In the case of Burns v. City of Detroit, still working its way through the courts per the latest we can find on Google, Michigan judges are expected to address the question of whether some forms of speech penalized by the current state of harassment law are in fact protected by the First Amendment to the Constitution. (Kingsley Browne, “Harassment law chills free speech”, Detroit News, Jul. 9, reprinted at Center for Individual Freedom site; Brian Dickerson, “Harassment law becomes a hot potato”, Detroit Free Press, Jun. 14 and “Harassment law headed for a tune-up”, Jun. 17; more from Center for Individual Freedom) (via Howard Bashman this summer, #1, 2, 3). (DURABLE LINK)
October 15 — Chocolate, gas-pump fumes, playground sand and so much more. Unanticipated (at least to non-lawyers) consequences of California’s Proposition 65, passed in 1986, mandating warning labels on all hazardous chemicals: “The last two years have seen bounty hunter lawsuits claiming that Californians are exposed to toxins from products such as picture frames, lightbulbs, Christmas lights, electrical tape, braces, game darts, stained-glass lamps, fire logs, exercise weights, hammers, terrariums, tools, cue chalk, cosmetics, even Slim-Fast,” according to attorney Jeffrey B. Margulies. Yes, cue chalk has always terrified us. (“New legal target: chocolate”, Orange County Register, Oct. 8). (DURABLE LINK)
October 15 — Judicial selection, the Gotham way. New York stands alone in its method of picking basic-level trial judges: “closed judicial nominating conventions followed by partisan elections. Party bosses rule.” The parties then engage in collusive cross-endorsements which operate to deny most City voters a meaningful choice. The results? According to the editorialists of the New York Daily News, an unusually high number of mediocre or downright bad jurists make it to the bench, while in Brooklyn, 10 of 60 sitting judges currently face ethics questions or actual charges. (“N.Y.’s unnatural selection” (editorial), Oct. 2). (DURABLE LINK)
October 14 — Australia on the front lines. The island nation, one of the staunchest members of the worldwide coalition fighting the battle against terrorism, now finds itself on the front lines of that battle, with more than 200 of its citizens still missing following the Bali attacks. “[T]his time terrorism has come to our doorstep, to the holiday home away from home that is Bali. The tourist destination familiar to most of us as a safe, cheap and friendly island of tolerance and fun has been turned into a charred graveyard. Horrifying images of bodies burned beyond description, seriously injured young men and women, and the street scenes of utter devastation recall a war zone….Certainly more Australians have been killed in Bali than in any other international disaster. … The Bali bombings expose the lie that the act of war on September 11, 2001, was simply an attack on Americans and American values. Bali proves that all freedom-loving peoples are at risk from terrorism, at home and abroad.” (“We must remain firm in face of terror” (editorial), The Australian, Oct. 14). More: “Thirteen Australians confirmed dead, 220 missing in Bali”, ABC.au, Oct. 14; Ben Martin, “Australia terror: Fearful wait”, The West Australian, Oct. 14; Matthew Moore, “US ambassador saw writing on wall a month ago”, Sydney Morning Herald, Oct. 14; Simon Kearney & Sarah Blake, “Terror Warning: Targets Named”, Sunday Telegraph, Oct. 13. For hard-hitting commentary on the ideological implications, check out maverick Aussie journalist Tim Blair. More good links: zem blog, Gweilo Diaries (mid-October entries). Update: As of Oct. 21 the likely death toll of the blasts was thought to be 190, including 103 Australians as well as numerous Indonesian nationals and citizens of such countries as Germany, Sweden, New Zealand and the United States. See Melbourne Age, Oct. 21. (DURABLE LINK)
October 14 — Rather die than commit profiling, cont’d. “A federal judge has cleared the way for a discrimination lawsuit filed by an Arab-American who was removed from a United Airlines flight three months after the Sept. 11 attacks. U.S. District Judge Florence-Marie Cooper ruled airlines do have a legal right to remove passengers who pose a security threat, but that does not allow them to discriminate on the basis of race, ethnicity or national origin.” (“Judge rules Arab-American taken off plane can sue United Airlines”, AP/Sacramento Bee, Oct. 12). The American Civil Liberties Union helped organize the suit. See also Eugene Volokh, Oct. 14. (DURABLE LINK)
October 14 — Macaulay on copyright law. In two speeches given in Parliament in 1841, the historian and statesman anticipated most of the issues worth thinking about on the issue of whether lawmakers should extend copyright long past the natural life of authors and other creators (courtesy Eric Flint, “Prime Palaver”)(more on TBM). (DURABLE LINK)
October 14 — “‘Pay-before-pumping rule called racist'”. Ohio: “North Randall Mayor Shelton Richardson fumes when he sees gas stations in his community that demand that customers pay before they pump, a practice he calls racist. The requirement is insulting and implies a presumption that customers will steal, he says. He wants to outlaw it. … No gas station in North Randall could require payment first if City Council adopts Richardson’s proposal to ban pay-first policies Monday night. … Prepayment is required around the clock at the 24-hour Shell station at the corner of Warrensville and Emery roads in North Randall. Manager Mike Jadallah said he would comply if the new law is approved. But he thinks he should be able to decide how he runs his business. ‘Is the city going to cover our losses?’ he asked.” (Kaye Spector, “Pay-before-pumping rule called racist”, Cleveland Plain Dealer, Oct. 12). (DURABLE LINK)
October 11-13 — “High court judge had use of condo owned by group that includes trial lawyer”. More eyebrow-raising allegations in the Mississippi favors-for-judges flap reported earlier this week: “A Gulf Coast condo owned by a partnership that includes prominent trial lawyer Richard ‘Dickie’ Scruggs has been used by Supreme Court Justice Oliver Diaz Jr., reports say.” “Mark Lumpkin, an associate in the firm of prominent Mississippi lawyer Paul Minor, said Wednesday that he lives in the condominium and has allowed Diaz to use it.” It seems the judge had recently divorced and needed a base for visitation with his kids, so it’s just good Southern hospitality, don’t you know. AP/Alabama Live, Oct. 10) See also Jerry Mitchell, “Probe could sway voters”, Jackson Clarion-Ledger, Oct. 9. More: Scruggs “denies that he repaid loans for Diaz or any other judge.” (“Investigation Targets Lawyers, Judges & Loans”, WLOX, Oct. 7; see Oct. 9-10). See also Nikki Davis Maute, “McRae won’t accept donation from lawyer”, Hattiesburg American, Oct. 10. (DURABLE LINK)
October 11-13 — Malpractice: Pennsylvania House votes to curb venue-shopping. The measure, which has yet to be approved by the state Senate or governor, requires plaintiffs in medical liability cases to file their suits in the county where the alleged negligent conduct occurred, rather than just heading to Philadelphia with its generous juries and indulgent judges. Doctors say it’s a start, while the state trial lawyers association is already promising a constitutional challenge — doesn’t this kind of measure violate the constitutional right to high verdicts, or something? (M. Bradford Grabowski, “Physicians react to ‘venue shopping’ bill”, Bucks County (Pa.) Courier Times, Oct. 9). (DURABLE LINK)
October 11-13 — “Wealthy candidates give Democrats hope”. Trial lawyer Harry Jacobs, who is reported to have a net worth of $42 million mostly from filing malpractice suits, is running for a Congressional seat in northern Florida. Jacksonville’s Wayne Hogan, who bagged $54 million in the state of Florida’s highly aromatic suit against the tobacco industry, “is trying to unseat Rep. John Mica, R-Winter Park. In West Virginia, attorney Jim Humphreys is running against incumbent Republican Shelley Moore Capito” in a rematch after her year-2000 upset win. (Bill Adair, St. Petersburg Times, Oct. 7). Update Nov. 7: all lose by wide margins. (DURABLE LINK)
October 11-13 — Quote of the day. “I have a few (trial lawyer) friends, but most of them abuse the system” — Ohio Supreme Court Justice Evelyn Stratton, quoted in David Benson, Mansfield (Ohio) News Journal, Oct. 9. (DURABLE LINK)
October 30-31 — “Give It Back to the Indians?” Just out: our editor has an article in the new issue of City Journal (Autumn) on how the sad history of Indian land claim litigation in the Northeast — in which, over the past 25 years, the courts have allowed tribes to revive territorial claims thought to have been resolved as long ago as the presidency of George Washington — may prefigure the misery in store if our legal system gives the go-ahead to lawsuits over slavery reparations. (DURABLE LINK)
October 30-31 — Deflating Spitzer’s crusade. Long but incisive article by Michael Lewis challenging the much-bruited notion that Wall Street skullduggery was mainly responsible for the boom and bust in tech stocks, and specifically deflating the pretensions of New York Attorney General Eliot Spitzer, who’s positioned himself at the forefront of the resulting legal crusade. Among Lewis’s key points: 1) the boom was no mere artifact of Wall Street hype, big firms like Merrill Lynch having mostly followed the investing public into tech mania rather than leading them there; 2) the line between visionary rethinking of current business practice and hallucinatory speculation was nowhere near as clear at the time as it seems in hindsight; 3) the supposedly occult conflict of interest between research and underwriting was hidden in such plain sight that anyone paying half-attention to the Street should have been aware of it; 4) the boom — even given its bust — did a great deal of social good; 5) the quest to clean up the stock-touting process obscures from the public the real lesson it would do well to absorb, which is that stock-picking advice from brokerages is generally useless whether sincere or not; 6) it’s not hard to read emails as establishing guilt if you let lawyers cherry-pick a few of them out of thousands while dropping their context. (Michael Lewis, “In Defense of the Boom”, New York Times Magazine, Oct. 27). For a contrasting view, calling Lewis’s article “nonsense”, see Peter Eavis, “The Billboard: Boom Boom”, New York Press, Oct. 28. On how Spitzer came into possession of the Merrill Lynch emails that enabled him to stage-manage much of this summer’s news flow, see Nicholas Varchaver, “Lawyers Target More Than Merrill”, Fortune, Jun. 10 (a plaintiffs’ lawyer evidently sent them over after settling a suit with the brokerage; the resulting Spitzer-driven publicity brought a bonanza of new cases to the lawyer’s door). (DURABLE LINK)
October 30-31 — Mistrial in Providence lead-paint case. “The six-member jury sent a note to the judge shortly after 2 p.m. that it could not reach a unanimous decision on whether the paints constituted a public nuisance.” (“Mistrial declared in landmark lead paint trial”, Providence Journal, Oct. 29; AP/Law.com, Oct. 30). “Four jurors [on the six-person panel] sided with the paint companies and two voted for the state. … About one minute after the mistrial became public, the stock prices of several defendants began shooting up …. The Sherwin-Williams Co. alone increased in value by nearly half a billion dollars.” (Peter B. Lord, “Trailblazing lead paint trial ends in deadlock”, Providence Journal, Oct. 30). So it’s back to surface-prep work for the closely watched effort to cover the world with litigation (see Oct. 28), and trial lawyers can’t be happy about the fact that their chief ally in the matter, Rhode Island attorney general Sheldon Whitehouse, will be departing office shortly. Have they painted themselves into a corner? Whitehouse for his part blames the paint companies for being “litigious”, recalling the famous French saying: “It is a very vicious animal. When attacked, it defends itself.” Update: see also “The Hand of Providence” (editorial), Wall Street Journal, Oct 31, reprinted at Texans for Lawsuit Reform site. (DURABLE LINK)
October 30-31 — “Nannies to sue for racial bias”. Great Britain: “Familes who hire nannies, cleaners and gardeners in their own homes face being sued for racial discrimination under a major shake-up of race relations laws. … Under plans to be published by the Home Office in the next fortnight, the Race Relations Act is expected to be tightened to include private householders as part of sweeping changes expected to trigger a flood of new tribunal cases. Householders could be taken to tribunals if they behave in a racist manner towards domestic help, for example, by refusing to hire a black carer for children. … The only exemption would be if they can show a ‘genuine occupational requirement’ to hire someone of a particular racial group — such as an elderly Muslim woman who wanted a home help who was also a Muslim. Critics will argue that the change could cause a legal nightmare for ordinary families, who could face bills for damages running into thousands of pounds unless they read up on the intricacies of employment law.”
Initial opposition to the new proposals appears to be tepid at best: thus the Conservative party’s shadow industry minister merely voices doubts about whether the measure is “likely to be effective,” while a spokesman for the Confederation of British Industry “said it would broadly welcome the changes,” though the CBI did express misgivings about another of the proposals in the antibias package, under which “for the first time the burden of proof in all employment tribunals would …be shifted so that it is effectively up to employers to prove they are not racist, rather than workers to prove that there was discrimination, so long as there is a prima facie case to answer.” (Gaby Hinsliff, The Observer (U.K.), Oct. 20). (DURABLE LINK)
October 30-31 — Monday: 13,555 pages served on Overlawyered.com. October 28 was one of our busiest days yet on the site, with traffic boosted by reader interest in our link roundups on the Moscow hostage episode (especially the WSJ‘s “Best of the Web” mention) on top of the 4,000-6,000 pages that we’re accustomed to serve on a more ordinary weekday. Thanks for your support!
P.S. Oops! Our unfamiliarity with our new statistics program led us to overcount: the Oct. 28 figure should have instead been 9,800 pages served, and the “regular” range 3,500-5,000. Still pretty good. (DURABLE LINK)
October 28-29 — Welcome WSJ Best of the Web readers. Readers looking for our earlier coverage of the Moscow theater siege will find it here and here.
MORE COVERAGE: Among accounts of the theater storming based on firsthand interviews are Alice Lagnado, “As dawn neared, a light mist suddenly came down”, Times (U.K.), Oct. 28, and Mark MacKinnon, “‘All they had to do was push the button'”, Globe and Mail (Canada), Oct. 28. The Bush White House declined to blame the Russian authorities for the hostage toll, saying responsibility rests with the captors: “The Russian government and the Russian people are victims of this tragedy, and the tragedy was caused as a result of the terrorists who took hostages and booby-trapped the building and created dire circumstances,” said spokesman Ari Fleischer. ( “White House: Blame Lies With Captors”, AP/Yahoo, Oct. 27). Other commentaries: Kieran Healy (Oct. 27), Mark Kleiman (Oct. 27); Mark Riebling reader comments. (DURABLE LINK)
October 28-29 — Ambulances, paramedics sued more. “A growing ambulance industry is learning that malpractice suits are not just for doctors anymore. … [one defense lawyer] says there’s a tough lesson to be learned in all ambulance cases. ‘You can do everything right, and you can still get sued.'” Includes a revealing quote from a Boston plaintiff’s lawyer about how he tries to get jurors so upset at alleged bumbling by ambulance operators that they “make short work” of the crucial question of whether that conduct was actually responsible for the patient’s injury. (Tresa Baldas, “Mean Streets”, National Law Journal, Oct. 23). (DURABLE LINK)
October 28-29 — Anticipatory law enforcement. Following the lead of some other jurisdictions, the city of Cincinnati has adopted new ordinances targeting men who patronize prostitutes (“johns”) by allowing the city to seize their cars. The ordinances don’t take effect until next month, which hasn’t kept the city police department’s vice unit from carrying out a significant number of car impoundments already, 13 in one week. “Even though the ordinances haven’t gone into effect yet, [Lt. John] Gallespie said the cars were impounded ‘for safekeeping.'” (Craig Garretson, “Police seize ‘johns’ cars”, Cincinnati Post, Oct. 21). (DURABLE LINK)
October 28-29 — R.I. lead paint case goes to jury. Rhode Island’s lawsuit against the lead paint industry, a concoction of ambitious trial lawyers and the politicians they love, has now gone to a jury after a two-month trial that’s been curiously underpublicized considering the case’s implications for American industry (“Jury deliberates for second day in lead paint case”, AP/CNN, Oct. 25). The state “is pursuing the novel claim that the defendant manufacturers and distributors of lead paint or lead created a public nuisance and should be held responsible for cleaning up what’s remaining in thousands of buildings in the state. The first phase of the trial will consider only one question — whether the presence of lead paint in Rhode Island buildings constitutes a public nuisance.” If the jury votes in favor of that theory, later phases of trial will consider such issues as fault and damages. (Margaret Cronin Fisk, “Rhode Island to Try First State Suit Over Lead Paint”, National Law Journal, Aug. 19).
Perhaps the best journalistic treatment we’ve seen of this travesty is found in a Forbes cover story from last year that is available now in fee-based archives (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14, 2001). The article explores how the nation’s richest tort law firm, Charleston, S.C.-based tobacco-asbestos powerhouse Ness Motley, moved into Rhode Island and quickly made itself the state’s largest political contributor, around the same time as it was picking up a contingency fee contract from state attorney general Sheldon Whitehouse to represent the state in the lead paint litigation. (Whitehouse proceeded to run for governor this year, but lost narrowly in the Democratic primary). To date, while trial lawyers have recruited numerous cities, counties and school districts around the country to sue paint makers, they have not persuaded any other states to join Rhode Island in its action (see our commentary of Jun. 7, 2001). At the same time, there are plenty of reasons to mistrust the contention that a “lead poisoning epidemic” can somehow be blamed for educational failure and crime among young people in inner-city neighborhoods like South Providence, R.I. Levels of lead exposure once typical of American children have now been retrospectively redefined as “poisoning”, thus ensuring the sense of a continuing crisis (see our commentary of Jun. 8-10, 2001). See also Steven Malanga, “Lead Paint Scam”, New York Post, Jun. 24. Update Oct. 30-31: judge declares mistrial after jury deadlock. (DURABLE LINK)
October 28-29 — Looking back on EEOC v. Sears. Among the most monumental and hard-fought discrimination lawsuits ever was the Equal Employment Opportunity Commission’s years-long courtroom crusade against Sears, Roebuck during the 1980s over the statistical “underrepresentation” of women in some of its employment categories, such as hardware and commission sales. (Sears won, and the case became one of the Commission’s most humiliating defeats.) In one of the controversies spawned by the case, Barnard College historian Rosalind Rosenberg was attacked by many colleagues in the field of women’s studies for supposedly betraying women’s equality by allowing her scholarship to be used in the retailer’s defense. Now John Rosenberg, who was formerly married to Rosalind Rosenberg and who also worked in the Sears defense, offers a partial memoir of the episode (Oct. 25) on a new weblog titled Discriminations in which his focus will be “on the theory and practice of discrimination, and how it is reported and analyzed.” (The piece begins with an introductory riff concerning UC Irvine history professor Jon Weiner, one of those assailing Rosalind Rosenberg in the mid-1980s controversy; Weiner recently caused many a jaw to drop by stepping forward in the Nation to defend disgraced Arming America author Michael Bellesiles.) (via InstaPundit). (DURABLE LINK)
October 28-29 — Satirical-disclaimer Hall of Fame. Lawyer-driven warning labels and disclaimer notices are easy to play for laughs, and readers often bring funny satires to our attention (like Dave Barry’s). Few are worked out in as much detail, however, as this splash page on the website of The Chaser, an Australian humor magazine (scroll down): “Maintain good posture at all times while reading … may cause paper cuts … Please avoid mixing The Chaser with water and glue, which could … cause some readers to be caught in a papier mache death trap. … The Chaser is flammable. Do not set fire to your copy of The Chaser, whether with a match, cigarette lighter … [or] shining a magnifying glass on a particular little spot. … Do not shred The Chaser and use it as confetti. … We make no guarantees as to the longevity of any marital unions formed whilst using The Chaser in any part of the ceremony …”. And a whole lot more — give it a look. (DURABLE LINK)
October 26-27 — Moscow hostage crisis, updated. According to Russian authorities, at least 118 hostages were killed and more than 700 were freed after security forces stormed the theater; most of the 50 terrorist captors were also killed and all or nearly all of the rest captured. After the terrorists started executing hostages, the crowd of captives had begun to flee in panic; security forces had also pumped a kind of sleeping gas into the theater. (“Moscow Hostage Death Toll Up to 118”, AP/ABC News, Oct. 27; “Russian forces storm siege theatre”, BBC, Oct. 26; Moscow Times). Contradicting earlier accounts from authorities, “Moscow’s chief physician said Sunday that all but one of the 117 hostages who died … were killed by the effects of gas used to subdue their captors.” (AP/Washington Post, Oct. 27). “If the theatre had not been stormed, all hostages would have been killed, the Interfax journalist who was among the hostages, Olga Chernyak, said.” (Interfax/Moscow Times, Oct. 26, and scroll for more entries). More links: AP/ABC News, Oct. 26; Washington Post, Oct. 27; BBC, Oct. 27; Damian Penny. Dilacerator offers a commentary (Oct. 26), as does Natalie Solent (Oct. 27). Thanks to InstaPundit and Eugene Volokh for their links to our extensive coverage below.
More: London’s Telegraph reports that it “has learned that a number of Arab fighters, believed to be of Saudi Arabian and Yemeni origin, were among the group that seized control of the theatre. ‘There were definitely Arab terrorists in the building with links to al-Qa’eda,’ said a senior Western diplomat. … Russian officials said that the hostage-takers had made several calls to the United Arab Emirates during the siege.” (Christina Lamb and Ben Aris, “Russians probe al-Qa’eda link as Moscow siege ends with 150 dead”, Sunday Telegraph (UK), Oct. 27). Although the Moscow terrorists (like those who carried out the hijacking of United Flight 93) had magnified public terror by allowing their captives to use cell phones to call their families, the tactic once again backfired, because the resulting exchange of information made it easier to thwart the terror plans: see Preston Mendenhall, “Cell phones were rebels’ downfall”, MS/NBC, Oct. 26. And Russia’s Gazeta reports that: “A 27-year-old resident of Chechnya has been detained by Moscow law enforcers on suspicion of having carried out the October 19 car bomb attack on a McDonald’s restaurant” in which one was killed and seven injured. Authorities had previously sought to blame the bombing on gangland rivalries, but “in the light of the recent events in Moscow, the prosecutor’s office does not rule out that the explosion may have been a terrorist attack.” (“Suspect detained in McDonald’s blast inquiry”, Gazeta.ru, Oct. 25). (DURABLE LINK)
October 25-27 — Updates. New developments in cases we’ve followed:
* “Manhattan Supreme Court Justice Charles E. Ramos on Tuesday froze further payments on a $625 million arbitration award to the six law firms that represented New York state in its litigation against the tobacco industry until he finishes reviewing the reasonableness of the sum.” (Daniel Wise, “Judge Freezes $625M Tobacco Award to Law Firms”, New York Law Journal, Oct. 23) (see Jul. 30-31).
* “The Canadian Transportation Agency has dismissed the complaint of an obese Calgary woman who argued her size was a disability and that airlines shouldn’t make her pay extra for a larger seat. ‘Being unable to fit in a seat should not be enough evidence of the existence of a disability as many people experience discomfort in the seat,’ the agency said in a decision released Wednesday. Calgary law professor Linda McKay-Panos, who described herself in documents as ‘morbidly obese,’ launched the process in 1997 after having to pay Air Canada for 1.5 seats because of her size.” (Judy Monchuk, “Federal board nixes Calgary woman’s bid for seat-price break for obese flyers”, Canadian Press, Oct. 23)(see Dec. 20, 2000). And in the United Kingdom, a “woman injured while squeezed next to an obese passenger on a trans-Atlantic flight has been given £13,000 ($20,000)” by Virgin Atlantic Airways. (“Woman squashed by plane passenger”, CNN, Oct. 22).
* In Paris, a panel of three judges has declared French writer Michel Houellebecq not guilty of inciting racial hatred after he was sued by four Muslim groups for delivering remarks contemptuous of Islam (“French author cleared of race hate”, BBC, Oct. 22)(see Aug. 23-25, Sept. 18-19).
* “A three-judge panel of the Michigan Court of Appeals has tossed a $29.2 million civil court judgment against The Jenny Jones Show, after deciding the syndicated chatfest should not be held liable for protecting a guest who was gunned down after revealing he had a crush on another man.” (Josh Grossberg, “‘Jenny Jones’ Vindicated”, E! Online, Oct. 23). The case is another setback for controversial Michigan attorney Geoffrey Fieger, who promptly launched a characteristically intemperate attack on the appeals judges (Stephen W. Huber, “Court tosses $29M award against ‘Jenny Jones Show'”, Oakland (Mich.) Press, Oct. 24) (see May 31, 2001). More: Michigan’s LitiGator (Oct. 25).
* “Voting 2-1, the 3rd U.S. Circuit Court of Appeals has ruled that the Southeastern Pennsylvania Transit Authority’s (SEPTA) physical fitness test for job applicants of its transit police force is perfectly legal — even though it has a ‘disparate impact’ on women — because it serves as a true measure of ‘the minimum qualifications necessary for the successful performance of the job.’ …the plaintiffs claimed that the test discriminates against women because it requires all applicants for the SEPTA police force to run 1.5 miles in 12 minutes.” (Shannon P. Duffy, “3rd Circuit Rules Fitness Test for Police Force Applicants Legal”, The Legal Intelligencer, Oct. 16) (see Sept. 15, 1999, Oct. 5-7, 2001). “Interestingly, two female appellate judges joined in the opinion rejecting this claim of sex discrimination, while a male appellate judge dissented,” notes Howard Bashman (Oct. 15).
* In Australia, a judge has ruled against the Pentecostal worshiper who sued claiming a “church had been negligent by not providing someone to catch her when she was ‘slain in the spirit'” during a 1996 service, causing her to fall down and strike her head on a carpeted concrete floor. (Kelly Burke, “Church not liable for Lord’s early fallers”, Sydney Morning Herald, Oct. 19)(see Oct. 1-2). (DURABLE LINK)
October 24 — Pa. statehouse race: either way, Big Law wins. “In a race that will easily break Pennsylvania gubernatorial spending records, the top givers are lawyers, by far. … [Republican Mike] Fisher has received $125,000 since June from two law firms he named, as attorney general, to handle a state lawsuit against tobacco companies.” (see Jan. 10, 2000). “But the firms, which split $50 million in legal fees, have hedged their bets by also donating $107,000 to [Democrat Ed] Rendell.” And the Pennsylvania Trial Lawyers Association has endorsed Rendell, who is considered less likely than Fisher to support curbs on medical malpractice lawsuits. (Tom Infield and Rose Ciotta, “Lawyers top givers to Fisher, Rendell”, Philadelphia Inquirer, Oct. 22). As mayor of Philadelphia, Rendell also made himself a booster of the abusive campaign of municipal litigation against gun manufacturers, though he held back from filing an actual suit given the unpopularity of such a move with the non-urban voters needed to win a statewide race in Pennsylvania (see Dec. 22, 2000). (DURABLE LINK)
October 24 — Suit: schoolkids shouldn’t attend rodeo. Two animal rights groups have filed suit “asking a San Francisco Superior Court judge to keep Bay Area schoolchildren from going to the free Grand National Rodeo day for students, which will be held at the Cow Palace on Thursday and may be repeated next year.” As many as 9,000 students are expected to attend the event. “Gina Snow, a spokeswoman for the San Francisco Unified School District, said children are only allowed to attend with parental permission, and that the decisions to participate are made by individual teachers.” Attorney David Blatte of Berkeley “focuses all his work on ‘animal law'”. (Dan Reed, “Suit: Rodeo bad for kids”, San Jose Mercury News, Oct. 23). And Matthew Scully’s new book Dominion, a conservative’s defense of animal welfare, “asks all the right questions about animal rights, even if it doesn’t canvass all the possible answers”, according to the summary of a review by Christopher Hitchens in The Atlantic (“Political Animals”, Nov.) (DURABLE LINK)
October 24 — “California Court Upholds $290 Million Injury Jury Award Against Ford”. “The California Supreme Court let stand on Wednesday a $290 million personal injury jury award levied against Ford Motor Co. stemming from a Bronco rollover accident in 1993. The justices, without publicly commenting, decided at their private weekly conference to uphold what Ford, in court briefs, called the nation’s largest personal injury award ever affirmed by an appellate court.” (Quicken/AP, Oct. 23; Mike McKee, “California Justices Let Stand $290M Award Against Ford”, The Recorder, Oct. 24). When the original trial verdict was reported, we looked in some detail (Aug. 24 and Sept. 17-19, 1999; see also Aug. 27, 2002) at the very curious influences that held sway during the jury’s deliberations, including one juror’s lurid dream revealing Ford’s guilt, and another’s misrecollection of a “60 Minutes” episode which purportedly proved the company’s bad faith. (DURABLE LINK)
October 24 — Russia’s fight, and ours. “Gunmen identifying themselves as Chechens took more than 700 people hostage inside a Moscow theater Wednesday night, threatening to kill some of the hostages and telling police they had mined portions of the building.” (“Chechen gunmen seize Moscow theater”, CNN, Oct. 23; Michael Wines, “Chechens Seize Moscow Theater, Taking as Many as 600 Hostages”, New York Times, Oct. 24 (reg); AP/ABC, “Rebels Take Moscow Audience Hostage”, Oct. 23). “Local media said children, Muslims and foreigners who could show their passports were allowed to leave the building. The reports could not be confirmed.” (Natalia Yefimova, Torrey Clark and Lyuba Pronina, “Armed Chechens Seize Moscow Theater”, Moscow Times, Oct. 24). Chechen militants have repeatedly seized civilian hostages in groups of hundreds and even thousands, as well as claiming credit for railway-station bombings in Russia (“Chechen rebels’ hostage history”, BBC, Oct. 24; “Chechen rebels hold at least 1,000 hostages in hospital”, CNN, Jan. 9, 1996; Adnan Malik, “Hijackers Free Women and Kids”, AP, Mar. 15, 2001; “Separatists’ history of hostages and horror”, Sydney Morning Herald, Oct. 24). Since 9/11 U.S. officials have been less inclined to dispute “Russia’s long-standing claim that the Chechen rebellion, which spills over into neighboring Caucasus republics, is not just a local independence movement, but has become a full-blown subsidiary of the global Islamic terror network headed by [Osama] bin Laden.” (Fred Weir, “A new terror-war front: the Caucasus”, Christian Science Monitor, Feb. 26). Also see, on the al-Qaeda-Chechnya connection, Mark Riebling and R. P. Eddy, “Jihad@Work”, National Review Online, Oct. 24, and BBC, Oct. 23. The Moscow Times has a list of the names of the Westerners who are being held hostage, who include three Americans, two Britons, two Australians, and a Canadian, as well as various others (Kevin O’Flynn, “Europeans, Americans Inside Theater”, Oct. 25). Asparagirl (Oct. 23) wouldn’t be surprised if it happened here.
More: In “footage aired by Qatar’s al-Jazeera satellite TV”, a chador-clad woman who said she was one of the Chechen hostage-takers said: “We have chosen to die in Moscow and we will kill hundreds of infidels.” (“We’ll kill hundreds of infidels: Hostage-taker”, AFP/Times of India, Oct. 24). “‘I swear by God we are more keen on dying than you are keen on living,’ a black-clad male said in the broadcast believed to have been recorded on Wednesday.” Another hostage-taker, while denying that the terrorists were operating as part of al-Qaeda, told the BBC: “We have come to die. …we want to be in paradise.” (BBC, “Hostage-takers ‘ready to die'”, Oct. 25). The Russian press is treating the unfolding events as “Russia’s Sept. 11”. (BBC, Oct. 25). In an echo that Americans will find familiar, “Many channels have broadcast chilling messages from the hostages themselves, calling from their mobile phones.” (“Distant war comes to Moscow”, BBC, Oct. 24).
According to London’s Evening Standard, the terrorists are disinclined to release any more of their foreign hostages because they suspect that international interest in the episode might wane if they did so. (“Britons still held in Moscow siege”, Oct. 25). Reportedly one of the American hostages, Sandy Alan Booker, 49, who was vacationing in Moscow, hails from Oklahoma City, Okla. (“Chechen Gunmen Threaten to Begin Killing Hostages at Dawn”, AP/FoxNews, Oct. 25). Update: Russian security forces storm theater, ending siege, with more than 100 hostages killed along with most of the captors: see Oct. 26.
FURTHER: Some London, Broadway and European theater owners have stepped up security, but Andre Ptaszynski, chief executive of Andrew Lloyd Webber’s chain of 14 London theaters, virtually boasts of not taking such threats seriously, explaining that an outrage by the Irish Republican Army against the West End is considered unlikely; apparently Ptaszynski is unable to think of any other groups that might harbor terrorist designs on London. (Matt Wolf, “Some Theaters on Alert After Siege”, AP/Yahoo, Oct. 25; “London theatres increase security”, BBC, Oct. 25 (via Jen Taliaferro). Riebling and Eddy, in NRO, note: “the tactics of Chechen jihadists are regarded by the FBI as a possible indicator of al Qaeda methods in the U.S.” (DURABLE LINK)
October 23 — Batch of reader letters. We’ve been remiss in keeping up with the inbox, but here are eight letters on subjects that include lawyers’ penchant for doing things expensively, a sane damage award in Ireland, Enron’s lawyers, lawsuits over avocados and anchovies, suitable targets of gamblers’ suits, George W. Bush’s record on tort reform, whether free speech should have a racism exception, and Western wildfires. More letters are on deck for later, too. (DURABLE LINK)
October 23 — Artificial hearts experimental? Who knew? “The widow of artificial-heart recipient James Quinn yesterday sued the maker of the device, the hospital where it was implanted, and the patient advocate who helped Quinn decide to have the surgery.” The 51-year-old man survived more than eight months after receiving the mechanical heart last November, but his “initially remarkable recovery was followed by months in the hospital.” The suit says Quinn had “no quality of life and his essential human dignity had been taken from him.” “Irene Quinn said yesterday that she and her husband did not know what they were getting into when they joined the clinical trial. They thought the machine would save his life, she said. She said they should have been told more about what earlier patients had experienced and that it should have been made more clear just how experimental the device was.” (Stacey Burling, “Widow sues artificial-heart maker”, Philadelphia Inquirer, Oct. 17; “Lawsuit over artificial heart”, CBS News, Oct. 17; MedRants, Oct. 18). (DURABLE LINK)
October 22 — “Judge: Disabilities Act doesn’t cover Web”. An important ruling, but one that’s unlikely to be the last word, on a controversy we’ve covered extensively in the past: “A federal judge ruled Friday that Southwest Airlines does not have to revamp its Web site to make it more accessible to the blind. In the first case of its kind, U.S. District Judge Patricia Seitz said the Americans with Disabilities Act (ADA) applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet.” Quotes our editor who mentions the possible headaches the ADA could pose even to a modest site like this one, if it turns out to apply to the web. (Declan McCullagh, CNet/News.com, Oct. 21)(opinion). More: Matthew Haggman, “Judge Tosses Suit That Said ADA Applies to Business Web Sites”, Miami Daily Business Review, Oct. 25. (DURABLE LINK)
October 22 — “Nanny Bloomberg”. This site’s editor also has an op-ed in the Wall Street Journal today on the New York mayor’s crusade against smoking in bars. It’s available only to online subscribers of the Journal, unfortunately. (DURABLE LINK)
October 22 — “‘Penney’s prevails in shopper suit”. A Tennessee Court of Appeals judge has upheld a lower court’s rejection of a $600,000 lawsuit by Carolyn and Robert L. Wells against the retailer J.C. Penney. Mrs. Wells had told the court that she had been shopping for collectible crystal figurines on sale at a Penney store in Shelby County when an ill-mannered fellow shopper wrested two crystal bears from her hands, inflicting injuries on her shoulder, neck and back. However, Judge Holly K. Lillard said that the confrontation, which “demonstrates the dangers of the cutthroat arena of after-Christmas bargain shopping,” was one whose particulars the store could not have foreseen. (Tom Sharp, AP/GoMemphis.com, Oct. 12). (DURABLE LINK)
October 21 — Rethinking grandparent visitation. Among the litigation-encouraging developments in family law in recent years has been the rise of laws enabling grandparents to sue demanding rights to visit their grandchildren even against the wishes of a fit parent. But both courts and lawmakers are growing disenchanted with such laws. One Seattle attorney charges that grandparents with time on their hands engage in “recreational litigation”. (Annie Hsia, “About Grandma’s Visits …”, National Law Journal, Oct. 14). (DURABLE LINK)
October 21 — “Judicial Hellholes”. After surveying its members, the American Tort Reform Association presents a report describing the most frequently identified “Judicial Hellholes”, localities in which litigation abuse is common and civil defendants find it hard to get a fair trial. On the list are Alameda, Los Angeles and San Francisco counties, California; notorious counties in Mississippi, Illinois, and Texas; and others. Is your hometown court on the list? (“Bringing Justice to Judicial Hellholes 2002”, report in PDF format). (DURABLE LINK)
October 21 — “Our friends are at war, too”. “The first soldier to die in combat in Afghanistan was an Australian. … We’re not just fellow infidels, but brothers on a field of battle that stretches from Manhattan to Bali. If the American media don’t understand that, then the American president needs to remind them.” (Mark Steyn, “Our friends are at war, too”, Chicago Sun-Times, Oct. 20). See Oct. 14; also Tom Allard and Mark Baker, “PM’s vow: we’ll get the bastards”, Sydney Morning Herald, Oct. 21; Tim Blair, “Killing terrorists wipes out terror”, The Australian, Oct. 17; Virginia Postrel (scroll to Oct. 17 and Oct. 16 posts). (DURABLE LINK)
October 21 — “Demand for more ugly people on TV”. “Lecturer Trond Andresen of the Norwegian Institute of Technology in Trondheim accuses the media of discriminating against the ugly and emphasizing beautiful people whenever possible. Andresen wants higher ugly quotas on television. ‘Ugly people should be spotlighted in the media in the same way that the media wishes to emphasize persons from ethnic minorities,’ Andresen, a lecture at the Department of Engineering Cybernetics, said to newspaper Bergens Tidende.” (Aftenposten, Oct. 17). (DURABLE LINK)