| Other Overlawyered.com commentaries: “Intel sued in notorious county“, Aug. 30-Sept. 2, 2002. “Sic ’em on Segway“, Aug. 1, 2002; “Segway, the super-wheelchair and the FDA“, Dec. 12, 2001. “‘Every Man a Cyber Crook’“, Feb. 6-7, 2002. “Draconian hacker penalties?“, Sept. 28-30, 2001. “‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001.
“Dotcom wreckage: sue ’em all“, Aug. 7-8, 2001. “Brace for data-disaster suits” (hacker attacks, viruses), May 29, 2001; “Suing Nike for getting hacked“, July 12, 2000; “Deep pockets blameable for denial-of-service attacks?“, Feb. 26-27; “Antitrust obstacles to hacker defense“, Feb. 10-11, 2000. “Anonymity takes a D.C. hit“, May 21, 2001. “Techies fear Calif. anti-confidentiality bill“, May 15, 2001. “Internet service disclaimers“, Dec. 13-14, 2000. “‘Stock Options: A Gold Mine for Racial-Discrimination Suits?’“, Dec. 11-12, 2000; “Feds’ mission: target Silicon Valley for race complaints“, Feb. 29, 2000. Labor law: “Digital serfs?“, Jan. 26-28, 2001; “Goodbye to gaming volunteers?“, Sept. 12, 2000 (& update Oct. 3); “Why rush that software project, anyway?” (California overtime law), March 29; “Microsoft temps can sue for stock options“, Jan. 11, 2000 (& see Feb. 17; letters, Dec. 20); “‘Click here to sue!’” (AOL volunteer suit), Sept. 7, 1999; “Click here to sue!” (employee misclassification suits), Aug. 19, 1999. “Tax software verdict: pick a number” (Mississippi verdict; government contracting), Sept. 5, 2000. “Class-action assault on eBay“, July 13, 2000 (update Nov. 22-23; class action certified). “‘Parody of animal rights site told to close’“, July 3-4, 2000 (& Aug. 29-30, 2001). “A Harvard call for selective rain” (some Internet regulation, not too much), July 3-4, 2000. “AOL ‘pop-up’ class action” (ads said to be unfair), June 27, 2000. “Harassment-law roundup” (Internet startups vulnerable), May 4, 2000; “Dot-coms as perfect defendants” (sex harassment suits), Jan. 17; “Harassment-law roundup” (Juno cases), Feb. 19-21, 2000.. “Silicon siege” (Ebay antitrust investigation, other cases; T.J. Rodgers warns against rapprochement with Washington), April 7-9, 2000. “Terminix vs. consumer critic’s website“, March 31-April 2, 2000. “Music stores sue Sony” (objecting to company-store hyperlinks included with CDs), Feb. 25, 2000. “Silicon siege” (AOL 5.0 upgrade), April 7-9, 2000; “AOL upgrade’s sharp elbows“, Feb. 12-13, 2000. “Green cards gather moss” (immigration delays), Feb. 4, 2000. “Santa came late” (Toys-R-Us e-tailing shortfalls), Jan. 19, 2000; “Beware of market crashes” (online brokerages “probably” liable for computer outages), Nov. 26-28, 1999. “Your fortune awaits in Internet law” (cybersquatting), Jan. 13-14, 2000; “Time to rent a clue” (domain name disputes), July 28, 1999. “Rolling the dice, cont’d” (suits over online gambling), Dec. 7, 1999 (earlier report, Aug. 26). “Mounties vs. your dish” (Canadian satellite law), Nov. 1, 1999. “Founders’ view of encryption“, Oct. 29, 1999. “In Houston, expensive menus” (junk faxes class action), Oct. 22, 1999 (update April 3, 2000: claims thrown out). “Foam-rubber cow recall” (Gateway Corp. premium), Oct. 22, 1999. “Feds: dissent on smoking = racketeering” (suit deems website advocacy unlawful), Sept. 23, 1999. “Effects of shareholder-suit reform“, Sept. 22, 1999. “Our award-winning errors” (this site’s 404 message), Aug. 14-15, 1999. “Weekend reading” (word counts on litigators’ briefs), Aug. 7-8, 1999. “Censorship via (novel) lawsuits” (lawyers blame school shootings on video games, Internet sites), July 22, 1999. “Thought for the day” (Cravath’s Robert Joffe on foreign companies’ unwillingness to let American law govern contracts), July 11, 1999.
Filed under: animal rights, antitrust, Canada, copyright, deep pocket, eBay, Houston, Italy, libel slander and defamation, Mississippi, Sweden, technology, trademarks
August 30-September 2 — Banish those desk photos of spouse at beach. A few years ago, when a Nebraska graduate student was targeted with a complaint from a university colleague for displaying a photo at his workplace of a woman in skimpy beachwear who happened to be his wife, some assumed it was a fluke case. But it wasn’t. “[D]esktop photographs of bikini-clad girlfriends or bare-chested husbands … could result in sexual harassment claims, lost productivity or a tarnished company image, say employment experts. ‘Employers have a duty to provide a work environment that is not objectionably and subjectively hostile, so the days of pinups in the locker room should be past,’ says John Lowe IV, an attorney in Kegler Brown Hill & Ritter’s Columbus labor and employment practice group.” Yep, they’re perfectly serious (Betsy Butler, “Dress code good strategy for desktop photo display”, Columbus Business First, Aug. 23). (DURABLE LINK)
August 30-September 2 — Intel sued in notorious county. Lawyers have filed a lawsuit seeking class-action status on behalf of personal computer owners “against Intel, Gateway, and Hewlett-Packard alleging the companies misled them into believing the Pentium 4 was a superior processor to Intel’s own Pentium III and AMD’s Athlon. The complaint — Neubauer et al v. Intel et al — was filed June 3 in the Third Judicial Circuit in Madison County, Illinois.” (Tom Mainelli, “Intel, PC Makers Sued Over P4 Performance”, PCWorld.com, Aug. 16; discussion, StorageReview forums). Litigation buffs will immediately recognize the chosen venue, Madison County, Ill., as being perhaps the most celebrated destination in the country for class-action “forum-shopping”, its courts recognized as unusually accommodating to the designs of the lawyers who file such suits. For one recent view of the county’s reputation, see: Adam Liptak, “Court Has Dubious Record as a Class-Action Leader”, New York Times, Aug. 15 (reg) (DURABLE LINK)
August 30-September 2 — Second Circuit: we mean business about stopping frivolous securities suits. The New York law firm of Jaroslawicz & Jaros “faces nearly $200,000 in sanctions after a federal appeals court said it had not received a severe enough penalty for an abusive securities fraud suit.” The 2nd U.S. Circuit Court of Appeals has weighed in three times on the case; among its rulings was that “the presence of some nonfrivolous claims in an otherwise frivolous complaint is not sufficient, standing alone, to establish that either the violation of Rule 11 [the main federal rule providing sanctions against meritless litigation] was de minimis or that the sanctions would create an unreasonable burden, for purposes of overcoming the statutory presumption of the PSLRA [Private Securities Litigation Reform Act of 1995].” (Tom Perrotta, “2nd Circuit Imposes Stiff Fine in Securities Fraud Case”, New York Law Journal, Aug. 27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last figured in these chronicles on Jan. 17, 2000, after he was quoted in the New York Observer as hoping to spearhead a wave of sexual-harassment suits against the then-flush firms of New York’s Silicon Alley. (DURABLE LINK)
August 29 — 7.000 missing colors, many of them crisply green. Last week Palm, the handheld computer maker, conceded that although it had advertised its m130 model, introduced in March, as displaying 65,536 different colors or color combinations, the actual number is a mere 58,621 — “approximately 11 percent fewer color combinations than we had originally believed”, as a Palm spokeswoman said. Attorneys with the Philadelphia law firm of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara, Calif. Superior Court seeking class-action status on behalf of Palm’s customers, traumatized as they no doubt were by this hue shortfall. Legal experts predict that Palm will most likely settle rather than face the legal uncertainties and bad publicity of a protracted suit, but that customers shouldn’t expect anything more than coupons, future discounts and the like. “It’s hard to put a dollar figure on how much you have been damaged because your computer won’t do some particular feat you might never ask it to do anyway,” said Norman Spaulding, a professor at the Boalt Hall School of Law at the University of California at Berkeley. (Elisa Batista, “Palm Handed Suit Over Colors”, Wired News, Aug. 24). (DURABLE LINK)
August 29 — Discrimination suit roundup. “The state of New Jersey has agreed to pay $250,000 to settle claims by three black men who said they were victims of racial profiling by the New Jersey state police. Attorney Stefan Presser of the American Civil Liberties Union of Pennsylvania said the settlement is the largest ever in a civil rights suit in which the victims were neither physically injured nor jailed” and says New Jersey should adopt it a model for other cases where black motorists were stopped and questioned without adequate justification. (Shannon P. Duffy, “New Jersey Settles Profiling Suit for $250,000”, The Legal Intelligencer, Aug. 22). The Taco Bell chain has agreed to pay $160,000 to settle the racial discrimination claims of a St. Louis family who, traveling 24-strong on a chartered bus through Cullman, Ala. in July 1998, waited about 15 minutes after requesting service. Each of the 24 will get about $1,000; the settlement “includes another $111,000 for attorney expenses and more than $17,000 in attorney fees.” (“Taco Bell settles discrimination lawsuit”, AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful Andrew Cuomo, the former federal housing secretary and gun-suit backer, has called for legislation to make discrimination a felony — we’ll sleep a lot sounder knowing errant taco-chain managers are behind bars. (“Cuomo: Make Discrimination a Felony”, News12/The Bronx, Aug. 25). (DURABLE LINK)
August 28 — “Parents suing youth football league”. Texas: “Parents of a fifth-grade boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth Football over a rule change that switched players to different teams after practice started. In a lawsuit filed Tuesday, an attorney sued the Katy Youth Football league on behalf of his son. The boy had played with his grade-level team before being switched because of age to a junior high-level group with “significantly larger” players. Russell Van Beustring and his wife, Pamela Van Beustring, are asking a judge to order the league to revert to rules in place when children registered in May.” (Jo Ann Zuniga, Houston Chronicle, Aug. 20). (DURABLE LINK)
August 27 — Ford rollover verdict: you read it here first. We usually refrain from running items pointing out that we covered one or another litigation story before the major media picked it up. However, we can’t help noting for the record that we were three years (!) early in beating the New York Times to the facts of the case they gave front page treatment to yesterday, namely Romo v. Ford Motor, “the largest punitive award ever affirmed by an American court in a personal injury case: $290 million to the family of three people killed in the rollover of a Ford Bronco.” (Ford has asked the California Supreme Court to review an intermediate court’s upholding of the award.) We’re glad to see this case finally getting some attention, and glad to find the Times highlighting the same angle of the case that we found most striking, the very strange goings-on in the jury room: one juror recounted to her colleagues a gruesome, omen-like dream revealing Ford’s guilt, while another juror passed on to her colleagues the contents of a badly misremembered “60 Minutes” episode also supposedly establishing the carmaker’s malign state of mind. The Times sees all this as reason to hold a public debate about whether juries’ determinations of such issues as punitive damages are sufficiently reliable to count as law at all. We don’t mind having such a debate — we just wonder why we couldn’t have had it three years ago, when all the same facts were on the public record (see this site’s entries for Aug. 24, 1999 and Sept. 17-19, 1999). (Adam Liptak, “Debate Grows on Jury’s Role in Injury Cases”, New York Times, Aug. 26 (reg))(& update Oct. 24: California Supreme Court leaves verdict intact)
P.S. While on the subject of juror misconduct, Vanderbilt University law professor Nancy J. King found in a study “that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials.” So comforting! “In June, two members of the jury that convicted the accounting firm [Arthur Andersen] of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial.” In a 1987 case, Tanner v. United States, 483 U.S. 107, “a majority composed of the U.S. Supreme Court’s most conservative members” declined to overturn Anthony Tanner’s conviction for mail fraud despite testimony from two jurors that several of their colleagues had dozed off; one juror in his affidavit said “the jury was on one big party,” and that consumption of marijuana, liquor and cocaine at lunch all contributed to later drowsiness. (Gary Young, “Asleep at the Trial”, National Law Journal, Aug. 21). (DURABLE LINK)
August 27 — OxyContin wins one in West Virginia. A judge has dismissed a case filed against Purdue Pharma, maker of the pain medication, on behalf of the estate of a 41-year-old drug abuser who died after crushing the pills and injecting them into her bloodstream. The Charleston Daily Mail editorially draws some lessons about personal responsibility (Aug. 23)(see Apr. 10 and links from there). (DURABLE LINK)
August 26 — “Junk fax” suit demands $2 trillion. The Federal Communications Commission recently took enforcement action against the enterprise Fax.com for (it said) extensively violating the federal law banning unsolicited commercial fax-sending. Last week Silicon Valley entrepreneur Steve Kirsch (more) and another plaintiff filed suits demanding the federal statutory penalty of $500 for each unsolicited fax sent, trebled to a sum he estimates at $2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes a day. The gross national product of all countries on the globe stands at $29 trillion or thereabouts, which would leave the plaintiffs if successful with a claim on something like 7 percent of the earth’s annual output if they could collect it. And although it is not clear how many assets Fax.com will be found to have at the end of a suit, Kirsch is also suing for $500 per offending transmission Fax.com’s telecommunications provider, Cox Communications, as well as its advertisers. “‘We believe that there are companies with substantial assets in this group. We will seek treble damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,’ Kirsch said in a statement.” (Bob Egelko, “2 trillion junk fax suit: Silicon Valley man demands Fax.com end unsolicited messages”, San Francisco Chronicle, Aug. 22; Andrew Quinn, “Lawsuits Seek $2.2 Trillion over ‘Junk’ Faxes”, Reuters/IEEE Spectrum, Aug. 23). Cox Communications is a NYSE-listed company with assets of $25 billion, according to Fortune. More on junk-fax suits as “Powerball for the clever”: July 24, 2001 and links from there. Fax.com’s own website seems to be doing its best to portray the company as dedicated to charitable endeavors for the recovery of missing children, with a remarkable lack of emphasis on how it actually makes its money. (DURABLE LINK)
August 26 — R.I.: no more cheap car leases? “A Rhode Island jury has held a car-leasing company vicariously liable for the negligence of a leased car driver, resulting in a $28 million personal injury award. The verdict against the Chase Manhattan Automotive Finance Corp. — one of the largest personal injury verdicts in the state’s history — followed the Rhode Island Supreme Court’s April ruling that long-term car-leasing companies can be held liable for the actions of leased car operators under the state’s owner and lessor liability statutes.” A lawyer for Chase warned of the impact on consumers: “‘There are about one million people in Rhode Island,’ he said. ‘Assuming only 50,000 people lease their cars, leasing can become prohibitively expensive’ if lessors have to pass on the cost of multimillion-dollar verdicts.” (Annie Hsia, “Car-Leasing Company Held Liable in Crash”, National Law Journal, Aug. 19). Updates: see Mar. 12-14 and May 21, 2003. (DURABLE LINK)
August 23-25 — Prominent French author sued for “insulting Islam”. In France, the latest chapter in the hate-speech-laws vs. free-speech saga: “Prize-winning French novelist Michel Houellebecq is being sued by four Islamic organisations in Paris after making ‘insulting’ remarks about the religion in an interview about his latest book. The action against Mr Houellebecq, 44, is being launched on 17 September by plaintiffs including Saudi Arabia’s World Islamic League and the Mosque of Paris.” The plaintiffs have also brought charges against a literary magazine, Lire, in which Mr. Houellebecq reportedly said that reading the Koran is “so depressing” and called Islam “the stupidest religion”. (“Author sued over Islam ‘insult'”, BBC, Aug. 22)(see Jun. 11-12). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)
August 23-25 — Canada: cash demanded for drug users and panhandlers inconvenienced by film crews. In Vancouver, B.C., which has become a popular site for Hollywood location filming, a group representing sex workers, drug users and homeless people has demanded compensation for film crews’ tendency to displace or disrupt illegal street activity. “The Vancouver Area Network of Drug Users, which represents about 1,000 residents of the seedy Downtown Eastside, has sent a letter demanding compensation to 30 production firms. They include Club Six Prods., currently filming MGM’s ‘Agent Cody Banks’ starring Frankie Muniz and Angie Harmon.” The letter states: “Sex trade workers must be compensated for displacement they experience at your hands in the same manner you would compensate a business if you were to use their locale during operating hours. The same must hold true for homeless people you push from beneath a bridge or doorway, and drug users you move from a park.” The letter also asks for financial compensation for loss of residents’ panhandling opportunities. (Don Townson, “Canadian Hookers Campaign Against Hollywood”, Variety/Yahoo, Aug. 21). (DURABLE LINK)
August 23-25 — Don’t ban peanut butter from schools. A small number of kids have serious peanut allergies, and schools — under pressure from activist parents and fearful of litigation — are beginning to ban the nutritious foodstuff from their cafeterias and halls. Don’t be stampeded, advises columnist Dennis Prager: there would be less overall disruption to children as a group if schools just made a point of keeping a stock of epinephrine, the antidote to allergic shock, on hand (syndicated/Town Hall, Aug. 21). (DURABLE LINK)
August 22 — Defying the link-banners. David Sorkin, “associate professor of law at The John Marshall Law School in Chicago, Ill., is the man behind Don’t Link to Us, a Web site that exists merely to flout what it terms ‘stupid linking policies.’ Sorkin’s site was launched in reaction to recent legal decisions in which courts upheld Web site terms and conditions that prohibited or restricted links,” including a decision in which a Danish court ruled that the NewsBooster site could not link to internal story pages within various news organizations’ sites. (Paul Festa, “Site fights ‘stupid linking'”, ZDNet News, Aug. 21). (DURABLE LINK)
August 22 — Jury clobbers NYC with $21 million slip/fall verdict. “A Manhattan jury has awarded more than $21 million to a woman who tripped over a four-inch protrusion of a broken parking sign and suffered serious head injuries as a result — the largest slip-and-fall verdict ever leveled against the city. Aides to Mayor Bloomberg are calling the verdict excessive, and have vowed to use it to illustrate why limits need to be placed on the city’s liability in personal injury cases.” (Errol Louis, “A Record Liability Verdict Is Brought In Against City”, New York Sun, Aug. 21). More coverage: Susan Huners, “Sidewalk Hazard Costs NYC $21 Million”, National Law Journal, Sept. 12. (DURABLE LINK)
August 22 — We did it all for the public health, cont’d. Although fewer than 300 acres of tobacco are grown in Alabama, “Tobacco farmers in Alabama have received $500,000 from the national tobacco settlement. … [Meanwhile,] only $350,000 is being spent for anti-smoking programs, with most of that aimed at young people. Let that sink in: More money from Alabama’s portion of the national tobacco settlement goes to people who grow tobacco than to those who are trying to get people to kick their tobacco habits.” (“Strange truths” (editorial), Birmingham News, Aug. 21). (DURABLE LINK)
August 21 — Judge questions “shotgun” naming of 282 defendants in trailer-mold case. According to a May 22 report in the Baton Rouge Advocate, the Fifth Circuit has agreed to examine a dispute between Lafayette, La. attorney Barry Domingue and U.S. District Judge Tucker Melancon, who is hearing a case filed by Domingue against no fewer than 282 manufacturers. The lawsuit, which seeks certification as a class action, purports to represent plaintiffs who “unknowingly bought poorly made manufactured homes defective in design, composition and construction. The lawsuit alleges that the defective design allowed condensation to create formation of a toxic mold in the walls, making occupants sick. The companies have denied that they produce an inferior product, and they are seeking dismissal of the case. During a hearing last month, Melancon ordered Domingue to disclose to the court all investigative files and any other materials used to develop the lawsuit. The judge said Domingue would have to explain why he included the 282 companies as defendants, even though many of them haven’t done business in Louisiana and many others have gone bankrupt. The judge said Domingue would be required to pay legal fees of any companies included in the lawsuit without proper justification.” The judge also expressed skepticism toward Domingue’s contention that the manufacturers had collectively conspired to conceal the dangers of mold in trailers and were thus each open to suit. Domingue contends that Judge Melancon has become an advocate for the defense side in the litigation. (Bruce Schultz, “Lawyer attacks critical judge in mobile-home suit”, Baton Rouge Advocate, May 22). (DURABLE LINK)
Filed under: Alabama, Canada, Ford Motor, France, Houston, Illinois, Louisiana, Madison County, Nebraska, New Jersey, Pennsylvania, Philadelphia, Rhode Island, Saudi Arabia, tobacco, tobacco settlement, West Virginia
August 5-15 — On hiatus. We’ll be taking a break for the next week and a half or so. While we’re away, check out the world’s funniest police log (Arcata, Calif.); the Manhattan Institute (with which our editor is associated), whose email announcement list you really ought to be on, and whose Center for Legal Policy has been publishing a series of important papers on such topics as asbestos litigation, class actions, and forum-shopping; and of course this site’s very own archives, which date back to July 1999, and which you can search. See you (more likely than not) on Friday, Aug. 16. (DURABLE LINK)
August 2-4 — Lawyer’s suit against airline: my seatmate was too fat. “A pretrial hearing is scheduled in an Ashland attorney’s civil lawsuit against an airline that sold him a seat next to an obese man. Philip Shafer will meet representatives from Delta Air Lines Inc. in Ashland Municipal Court at 3:30 p.m. Sept. 19. Shafer seeks $9,500 from Delta. The suit stems from a two-hour November flight from New Orleans to Cincinnati. Shafer claims Delta breached its contract to provide him with a full seat and reasonable comfort because the obese man crowded onto his seat.” (Mark Caudill, “Ashland attorney sues over ‘jet jam'”, Mansfield, Ohio News Journal, Aug. 1) (see Dec. 20, 2000). (DURABLE LINK)
August 2-4 — Dense yet sieve-like. “The INS has no real idea who’s within America’s borders. One reason they have no idea is because it takes them a decade to process a routine green-card application by a highly-employable, high-earning, law-abiding citizen of America’s closest ally.” (Mark Steyn, National Post (Canada), Aug. 1). (DURABLE LINK)
August 2-4 — Welcome Fox News viewers/ readers. We suggested on Tuesday that the media should take a closer look at the tobacco-fee saga unfolding in the Manhattan courtroom of Justice Charles Ramos, and Fox News Channel wasted no time stepping into the breach; its news coverage gave this site’s editor generous time on screen to describe the case’s significance. However, none of the lawyers requesting the $13,000/hour fees were willing to go on camera to defend those fees — funny about that. (“Tobacco Settlement a Windfall for Lawyers”, Fox News, Aug. 1). And as if that weren’t enough publicity for one week, our editor is also interviewed on camera in a Fox News segment on school lawsuits (Liza Porteus, “Flunking Out of School? Get a Lawyer”, Fox News, Aug. 2) (DURABLE LINK)
August 2-4 — LexisOne “Site of the Month”. We’re one of the picks for the month of August at the major legal research service’s Legal Web Site Directory. (DURABLE LINK)
August 1 — You mean I’m suing that nice doctor? When Hazel Norton of Rolling Fork, Mississippi, read that the drug Propulsid might cause harm, she stopped taking it and signed up for a lawsuit. “‘Actually, I didn’t get hurt by Propulsid,’ Norton, who had the drug prescribed for her heartburn, said. But because she had taken the drug, she said she thought she could join a class-action lawsuit ‘and I might get a couple of thousand dollars.’
“The last thing she intended, Norton said, was for Kooyer to be sued. [Dr. Kirk Kooyer, who “arrived in the Mississippi Delta in 1994 to serve the poor.”] ‘He’s really a good doctor, very intelligent,’ said Norton, who’s been Kooyer’s patient since 1994. ‘He makes you feel so comfortable.’
“She said she intended for the drug company to be sued, but that lawyers told her it would be better for her case to sue Kooyer in order to keep the case in Mississippi. After finding out Kooyer had been sued, she said she wrote a letter to her attorneys, objecting. ‘I’m kind of upset. I do not want him leaving because of all the suits,’ she said. ‘If we run off all the doctors, what are the people gonna do?’ Kooyer was eventually dropped from the litigation but not before he made up his mind to leave Mississippi.” (Jerry Mitchell, “Tort reform: just what the doctor ordered?”, Jackson Clarion-Ledger, Jul. 29 — many other good details)(more on Propulsid suits: Oct. 1, 2001; FindLaw). (DURABLE LINK)
August 1 — Sic ’em on Segway. As the Los Angeles Times reported July 23 (registration process too frustrating to give them a link), one law firm is already announcing plans to organize lawsuits against Segway (also known as “It” or “Ginger”), the smart scooter whose backers think it could revolutionize urban transportation (see Dec. 13, 2001). “We believe that the Segway HT is potentially a legal nightmare and will be the basis for many lawsuits, both from the corporate and consumer side,” explains the website, which sports the tastefully restrained name of Sue-It.com and was put up by a “successful corporate law firm” calling itself the “USA Immigration Law Center”.
Wait a minute. Immigration? Well, that might shed light on why the “successful corporate law firm” argues its case in language that sometimes reads as if it has been inexactly translated into English from a foreign tongue. “We are successful corporate law firm with offices in Washington, DC and Baltimore named the USAILC. We are planning to further specialize in new areas associated with suing It [Segway]. … [W]e view the potential onslaught of cases against It as more than just a basis for strong financial profits. … Get ready to Sue-It!” A bunch of wild and crazy guys, no? As for the website USAILC puts up to promote its major line of practice, among its first sentences is the following: “The United States of America Immigration Law Center is the official online home for US Immigration Legal Matters and Issues” — which brought us up short since we had always imagined that “the official” site was this one. (DURABLE LINK)
August 20 — On the diamond. “Every year, scores of softball leagues play nearly 200,000 organized games in New York City’s parks. Accountants, journalists, and actors have their own leagues, but few are as cutthroat and litigious as the Central Park Lawyers Softball League. …’There were many occasions where I found myself inundated with paperwork,’ [said a former Shea & Gould lawyer who used to serve as commissioner of the league], referring to the softball disputes he used to settle as commissioner. ‘People were filing briefs putting forth arguments, counter-arguments, and counter-counter arguments.'” (Colin Miner, “New Play at Home: ‘Call Me Safe — Or I’ll Sue You’ Lawyers Bunt, Steal, And Argue in Softball”, New York Sun, Aug. 12). (DURABLE LINK)
August 20 — Lord High Private Attorneys General. According to the Civil Justice Association of California, private lawyers in the Golden State have been sending demand letters en masse to small businesses alleging violations of state laws and demanding that attorneys’ fees be forked over as part of the resolution of the complaint. One such set of letters went out to Orange County auto repair shops accused of such misdeeds as failing to provide customers with written estimates; the law allows a private lawyer to bring an enforcement action in such a case even if he does not represent an actual customer of the shop. “Letters were sent to approximately 200 ethnic grocery and retail stores across the state of California in which they allegedly offered to sell or rent videos that violated the anti-pirating statute. According to the letter sent by the plaintiffs’ attorney, stores would be required to pay easily over ‘$10,000 plus restitution.’ The storeowner was then informed a few sentences later, by sending $2,000 ‘in the form of a bank draft or cashier check payable to Brar & Gamulin, LLP’ within 40 days, plus an agreement not to violate the statute again, the lawsuit would be settled.” (“Attorney General Urged to Investigate “Legal Shakedowns” Under State’s Unfair Competition Law”, Civil Justice Association of California, Jul. 11). (DURABLE LINK)
August 19 — “How to Spot a Personal Injury Mill”. In a personal injury mill, medical providers and attorneys conspire to provide unneeded medical services premised on the expectation of obtaining liability-driven compensation. QuackWatch offers eleven danger signs that in combination may indicate that a provider is operating as part of a mill. The exposure of knowing participants to fraud prosecutions is not the only reason for consumers to steer clear of such schemes: “False reports of medical diagnoses or loss of functionality can cause trouble for patients who later apply for a job, apply for insurance, or actually become disabled and apply for disability.” (Stephen Barrett, Charles Bender, and Frank P. Brennan, “Insurance Fraud: How to Spot a Personal Injury Mill”, QuackWatch). (DURABLE LINK)
August 19 — Anti-circumcision suit advances. Some opponents of infant male circumcision, not content with a gradual shift of opinion in their direction among American parents, now seek to enforce their preferences through litigation, even in the face of contrary parental wishes and continuing religious and customary sanction for the practice in many communities. “In July, North Dakota District Judge Cynthia Rothe-Seeger denied a motion for summary judgment by defendants in the Flatt v. Kantak circumcision case, and decided it will proceed to trial on February 3, 2003. The precedent setting decision confirms that a baby who is circumcised can [in this court, at least –ed.] sue his doctor when he reaches age of majority, even if there was parental consent for the circumcision, and even if the results are considered to be ‘normal.'” (“Circumcision case to proceed to trial”, Men’s News Daily, Aug. 1; see Feb. 28, 2001). (DURABLE LINK)
August 19 — Litigation good for the country? Law prof Carl T. Bogus, espousing a view that should win him some admirers among those who violently dislike the viewpoint of this page, has written a whole book entitled “Why Lawsuits Are Good for America.” He’s even dispatched a research assistant armed with a candy thermometer to prove that chain restaurants now furnish caffeinated take-out beverages at more suitably tepid temperatures than they used to, thanks to salutary fear of being hauled to court. But reviewer Michael McMenamin doesn’t find the resulting potion palatable (“Knave of torts”, Reason, Aug.). (DURABLE LINK)
August 16-18 — Wasn’t his fault for laying drunk under truck. West Virginia: “After a night of drinking, Dustin W. Bailey walked out of a Teays Valley bar, crossed the street and ended up underneath an idling tractor- trailer delivering supplies to a pizza restaurant. The truck killed him when the driver pulled forward. Now, nearly two years after the accident, Bailey’s mother … is suing the pizza restaurant, the truck’s driver, the truck’s owner and the bar’s owner because, she says, they all failed to take steps to keep her son alive.” Chief Deputy John Dailey of the sheriff’s department takes issue with the suit’s premises: “If anyone should be blamed for that death, it’s that guy who climbed under the truck.” (Toby Coleman, “Woman files suit over son’s death”, Charleston Daily Mail, Aug. 10). (DURABLE LINK)
August 16-18 — “Warning: …” “Do Not Read This Column While Water-Skiing. Do Not Set Fire To This Column In a Room Filled With Hydrogen”. As usual, one Dave Barry column is worth several treatises on product liability law (“Owners’ manual Step No. 1: Bang head against the wall”, Miami Herald, Jun. 30). (DURABLE LINK)
August 16-18 — “Accident claims salesman is sued over ‘fall'” “A door-to-door salesman for an accident claims firm is being sued after he allegedly fell on the six-year-old son of a potential client.” Salesman Jay Sims, representing a British firm that offers no-win, no-fee representation of injury claims, had been trying to persuade the Stanbury family of Long Eaton, Derbyshire to use the firm’s services. On departing the home he “began to play football with a group of children in the street” with resulting alleged injury to young Yohan Stanbury after which “the family decided to sue Mr Sims, using another no-win, no-fee accident claims firm.” The boy’s father “said he was taking action because Mr Sims’s company, the Accident Group, had refused to accept the incident even took place.” (Nick Britten, Daily Telegraph (U.K.), Aug. 15). (DURABLE LINK)
August 30-September 2 — Banish those desk photos of spouse at beach. A few years ago, when a Nebraska graduate student was targeted with a complaint from a university colleague for displaying a photo at his workplace of a woman in skimpy beachwear who happened to be his wife, some assumed it was a fluke case. But it wasn’t. “[D]esktop photographs of bikini-clad girlfriends or bare-chested husbands … could result in sexual harassment claims, lost productivity or a tarnished company image, say employment experts. ‘Employers have a duty to provide a work environment that is not objectionably and subjectively hostile, so the days of pinups in the locker room should be past,’ says John Lowe IV, an attorney in Kegler Brown Hill & Ritter’s Columbus labor and employment practice group.” Yep, they’re perfectly serious (Betsy Butler, “Dress code good strategy for desktop photo display”, Columbus Business First, Aug. 23). (DURABLE LINK)
August 30-September 2 — Intel sued in notorious county. Lawyers have filed a lawsuit seeking class-action status on behalf of personal computer owners “against Intel, Gateway, and Hewlett-Packard alleging the companies misled them into believing the Pentium 4 was a superior processor to Intel’s own Pentium III and AMD’s Athlon. The complaint — Neubauer et al v. Intel et al — was filed June 3 in the Third Judicial Circuit in Madison County, Illinois.” (Tom Mainelli, “Intel, PC Makers Sued Over P4 Performance”, PCWorld.com, Aug. 16; discussion, StorageReview forums). Litigation buffs will immediately recognize the chosen venue, Madison County, Ill., as being perhaps the most celebrated destination in the country for class-action “forum-shopping”, its courts recognized as unusually accommodating to the designs of the lawyers who file such suits. For one recent view of the county’s reputation, see: Adam Liptak, “Court Has Dubious Record as a Class-Action Leader”, New York Times, Aug. 15 (reg) (DURABLE LINK)
August 30-September 2 — Second Circuit: we mean business about stopping frivolous securities suits. The New York law firm of Jaroslawicz & Jaros “faces nearly $200,000 in sanctions after a federal appeals court said it had not received a severe enough penalty for an abusive securities fraud suit.” The 2nd U.S. Circuit Court of Appeals has weighed in three times on the case; among its rulings was that “the presence of some nonfrivolous claims in an otherwise frivolous complaint is not sufficient, standing alone, to establish that either the violation of Rule 11 [the main federal rule providing sanctions against meritless litigation] was de minimis or that the sanctions would create an unreasonable burden, for purposes of overcoming the statutory presumption of the PSLRA [Private Securities Litigation Reform Act of 1995].” (Tom Perrotta, “2nd Circuit Imposes Stiff Fine in Securities Fraud Case”, New York Law Journal, Aug. 27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last figured in these chronicles on Jan. 17, 2000, after he was quoted in the New York Observer as hoping to spearhead a wave of sexual-harassment suits against the then-flush firms of New York’s Silicon Alley. (DURABLE LINK)
August 29 — 7.000 missing colors, many of them crisply green. Last week Palm, the handheld computer maker, conceded that although it had advertised its m130 model, introduced in March, as displaying 65,536 different colors or color combinations, the actual number is a mere 58,621 — “approximately 11 percent fewer color combinations than we had originally believed”, as a Palm spokeswoman said. Attorneys with the Philadelphia law firm of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara, Calif. Superior Court seeking class-action status on behalf of Palm’s customers, traumatized as they no doubt were by this hue shortfall. Legal experts predict that Palm will most likely settle rather than face the legal uncertainties and bad publicity of a protracted suit, but that customers shouldn’t expect anything more than coupons, future discounts and the like. “It’s hard to put a dollar figure on how much you have been damaged because your computer won’t do some particular feat you might never ask it to do anyway,” said Norman Spaulding, a professor at the Boalt Hall School of Law at the University of California at Berkeley. (Elisa Batista, “Palm Handed Suit Over Colors”, Wired News, Aug. 24). (DURABLE LINK)
August 29 — Discrimination suit roundup. “The state of New Jersey has agreed to pay $250,000 to settle claims by three black men who said they were victims of racial profiling by the New Jersey state police. Attorney Stefan Presser of the American Civil Liberties Union of Pennsylvania said the settlement is the largest ever in a civil rights suit in which the victims were neither physically injured nor jailed” and says New Jersey should adopt it a model for other cases where black motorists were stopped and questioned without adequate justification. (Shannon P. Duffy, “New Jersey Settles Profiling Suit for $250,000”, The Legal Intelligencer, Aug. 22). The Taco Bell chain has agreed to pay $160,000 to settle the racial discrimination claims of a St. Louis family who, traveling 24-strong on a chartered bus through Cullman, Ala. in July 1998, waited about 15 minutes after requesting service. Each of the 24 will get about $1,000; the settlement “includes another $111,000 for attorney expenses and more than $17,000 in attorney fees.” (“Taco Bell settles discrimination lawsuit”, AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful Andrew Cuomo, the former federal housing secretary and gun-suit backer, has called for legislation to make discrimination a felony — we’ll sleep a lot sounder knowing errant taco-chain managers are behind bars. (“Cuomo: Make Discrimination a Felony”, News12/The Bronx, Aug. 25). (DURABLE LINK)
August 28 — “Parents suing youth football league”. Texas: “Parents of a fifth-grade boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth Football over a rule change that switched players to different teams after practice started. In a lawsuit filed Tuesday, an attorney sued the Katy Youth Football league on behalf of his son. The boy had played with his grade-level team before being switched because of age to a junior high-level group with “significantly larger” players. Russell Van Beustring and his wife, Pamela Van Beustring, are asking a judge to order the league to revert to rules in place when children registered in May.” (Jo Ann Zuniga, Houston Chronicle, Aug. 20). (DURABLE LINK)
August 27 — Ford rollover verdict: you read it here first. We usually refrain from running items pointing out that we covered one or another litigation story before the major media picked it up. However, we can’t help noting for the record that we were three years (!) early in beating the New York Times to the facts of the case they gave front page treatment to yesterday, namely Romo v. Ford Motor, “the largest punitive award ever affirmed by an American court in a personal injury case: $290 million to the family of three people killed in the rollover of a Ford Bronco.” (Ford has asked the California Supreme Court to review an intermediate court’s upholding of the award.) We’re glad to see this case finally getting some attention, and glad to find the Times highlighting the same angle of the case that we found most striking, the very strange goings-on in the jury room: one juror recounted to her colleagues a gruesome, omen-like dream revealing Ford’s guilt, while another juror passed on to her colleagues the contents of a badly misremembered “60 Minutes” episode also supposedly establishing the carmaker’s malign state of mind. The Times sees all this as reason to hold a public debate about whether juries’ determinations of such issues as punitive damages are sufficiently reliable to count as law at all. We don’t mind having such a debate — we just wonder why we couldn’t have had it three years ago, when all the same facts were on the public record (see this site’s entries for Aug. 24, 1999 and Sept. 17-19, 1999). (Adam Liptak, “Debate Grows on Jury’s Role in Injury Cases”, New York Times, Aug. 26 (reg))(& update Oct. 24: California Supreme Court leaves verdict intact)
P.S. While on the subject of juror misconduct, Vanderbilt University law professor Nancy J. King found in a study “that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials.” So comforting! “In June, two members of the jury that convicted the accounting firm [Arthur Andersen] of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial.” In a 1987 case, Tanner v. United States, 483 U.S. 107, “a majority composed of the U.S. Supreme Court’s most conservative members” declined to overturn Anthony Tanner’s conviction for mail fraud despite testimony from two jurors that several of their colleagues had dozed off; one juror in his affidavit said “the jury was on one big party,” and that consumption of marijuana, liquor and cocaine at lunch all contributed to later drowsiness. (Gary Young, “Asleep at the Trial”, National Law Journal, Aug. 21). (DURABLE LINK)
August 27 — OxyContin wins one in West Virginia. A judge has dismissed a case filed against Purdue Pharma, maker of the pain medication, on behalf of the estate of a 41-year-old drug abuser who died after crushing the pills and injecting them into her bloodstream. The Charleston Daily Mail editorially draws some lessons about personal responsibility (Aug. 23)(see Apr. 10 and links from there). (DURABLE LINK)
August 26 — “Junk fax” suit demands $2 trillion. The Federal Communications Commission recently took enforcement action against the enterprise Fax.com for (it said) extensively violating the federal law banning unsolicited commercial fax-sending. Last week Silicon Valley entrepreneur Steve Kirsch (more) and another plaintiff filed suits demanding the federal statutory penalty of $500 for each unsolicited fax sent, trebled to a sum he estimates at $2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes a day. The gross national product of all countries on the globe stands at $29 trillion or thereabouts, which would leave the plaintiffs if successful with a claim on something like 7 percent of the earth’s annual output if they could collect it. And although it is not clear how many assets Fax.com will be found to have at the end of a suit, Kirsch is also suing for $500 per offending transmission Fax.com’s telecommunications provider, Cox Communications, as well as its advertisers. “‘We believe that there are companies with substantial assets in this group. We will seek treble damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,’ Kirsch said in a statement.” (Bob Egelko, “2 trillion junk fax suit: Silicon Valley man demands Fax.com end unsolicited messages”, San Francisco Chronicle, Aug. 22; Andrew Quinn, “Lawsuits Seek $2.2 Trillion over ‘Junk’ Faxes”, Reuters/IEEE Spectrum, Aug. 23). Cox Communications is a NYSE-listed company with assets of $25 billion, according to Fortune. More on junk-fax suits as “Powerball for the clever”: July 24, 2001 and links from there. Fax.com’s own website seems to be doing its best to portray the company as dedicated to charitable endeavors for the recovery of missing children, with a remarkable lack of emphasis on how it actually makes its money. (DURABLE LINK)
August 26 — R.I.: no more cheap car leases? “A Rhode Island jury has held a car-leasing company vicariously liable for the negligence of a leased car driver, resulting in a $28 million personal injury award. The verdict against the Chase Manhattan Automotive Finance Corp. — one of the largest personal injury verdicts in the state’s history — followed the Rhode Island Supreme Court’s April ruling that long-term car-leasing companies can be held liable for the actions of leased car operators under the state’s owner and lessor liability statutes.” A lawyer for Chase warned of the impact on consumers: “‘There are about one million people in Rhode Island,’ he said. ‘Assuming only 50,000 people lease their cars, leasing can become prohibitively expensive’ if lessors have to pass on the cost of multimillion-dollar verdicts.” (Annie Hsia, “Car-Leasing Company Held Liable in Crash”, National Law Journal, Aug. 19). Updates: see Mar. 12-14 and May 21, 2003. (DURABLE LINK)
August 23-25 — Prominent French author sued for “insulting Islam”. In France, the latest chapter in the hate-speech-laws vs. free-speech saga: “Prize-winning French novelist Michel Houellebecq is being sued by four Islamic organisations in Paris after making ‘insulting’ remarks about the religion in an interview about his latest book. The action against Mr Houellebecq, 44, is being launched on 17 September by plaintiffs including Saudi Arabia’s World Islamic League and the Mosque of Paris.” The plaintiffs have also brought charges against a literary magazine, Lire, in which Mr. Houellebecq reportedly said that reading the Koran is “so depressing” and called Islam “the stupidest religion”. (“Author sued over Islam ‘insult'”, BBC, Aug. 22)(see Jun. 11-12). Update Oct. 25-27: Houellebecq acquitted. (DURABLE LINK)
August 23-25 — Canada: cash demanded for drug users and panhandlers inconvenienced by film crews. In Vancouver, B.C., which has become a popular site for Hollywood location filming, a group representing sex workers, drug users and homeless people has demanded compensation for film crews’ tendency to displace or disrupt illegal street activity. “The Vancouver Area Network of Drug Users, which represents about 1,000 residents of the seedy Downtown Eastside, has sent a letter demanding compensation to 30 production firms. They include Club Six Prods., currently filming MGM’s ‘Agent Cody Banks’ starring Frankie Muniz and Angie Harmon.” The letter states: “Sex trade workers must be compensated for displacement they experience at your hands in the same manner you would compensate a business if you were to use their locale during operating hours. The same must hold true for homeless people you push from beneath a bridge or doorway, and drug users you move from a park.” The letter also asks for financial compensation for loss of residents’ panhandling opportunities. (Don Townson, “Canadian Hookers Campaign Against Hollywood”, Variety/Yahoo, Aug. 21). (DURABLE LINK)
August 23-25 — Don’t ban peanut butter from schools. A small number of kids have serious peanut allergies, and schools — under pressure from activist parents and fearful of litigation — are beginning to ban the nutritious foodstuff from their cafeterias and halls. Don’t be stampeded, advises columnist Dennis Prager: there would be less overall disruption to children as a group if schools just made a point of keeping a stock of epinephrine, the antidote to allergic shock, on hand (syndicated/Town Hall, Aug. 21). (DURABLE LINK)
August 22 — Defying the link-banners. David Sorkin, “associate professor of law at The John Marshall Law School in Chicago, Ill., is the man behind Don’t Link to Us, a Web site that exists merely to flout what it terms ‘stupid linking policies.’ Sorkin’s site was launched in reaction to recent legal decisions in which courts upheld Web site terms and conditions that prohibited or restricted links,” including a decision in which a Danish court ruled that the NewsBooster site could not link to internal story pages within various news organizations’ sites. (Paul Festa, “Site fights ‘stupid linking'”, ZDNet News, Aug. 21). (DURABLE LINK)
August 22 — Jury clobbers NYC with $21 million slip/fall verdict. “A Manhattan jury has awarded more than $21 million to a woman who tripped over a four-inch protrusion of a broken parking sign and suffered serious head injuries as a result — the largest slip-and-fall verdict ever leveled against the city. Aides to Mayor Bloomberg are calling the verdict excessive, and have vowed to use it to illustrate why limits need to be placed on the city’s liability in personal injury cases.” (Errol Louis, “A Record Liability Verdict Is Brought In Against City”, New York Sun, Aug. 21). More coverage: Susan Huners, “Sidewalk Hazard Costs NYC $21 Million”, National Law Journal, Sept. 12. (DURABLE LINK)
August 22 — We did it all for the public health, cont’d. Although fewer than 300 acres of tobacco are grown in Alabama, “Tobacco farmers in Alabama have received $500,000 from the national tobacco settlement. … [Meanwhile,] only $350,000 is being spent for anti-smoking programs, with most of that aimed at young people. Let that sink in: More money from Alabama’s portion of the national tobacco settlement goes to people who grow tobacco than to those who are trying to get people to kick their tobacco habits.” (“Strange truths” (editorial), Birmingham News, Aug. 21). (DURABLE LINK)
August 21 — Judge questions “shotgun” naming of 282 defendants in trailer-mold case. According to a May 22 report in the Baton Rouge Advocate, the Fifth Circuit has agreed to examine a dispute between Lafayette, La. attorney Barry Domingue and U.S. District Judge Tucker Melancon, who is hearing a case filed by Domingue against no fewer than 282 manufacturers. The lawsuit, which seeks certification as a class action, purports to represent plaintiffs who “unknowingly bought poorly made manufactured homes defective in design, composition and construction. The lawsuit alleges that the defective design allowed condensation to create formation of a toxic mold in the walls, making occupants sick. The companies have denied that they produce an inferior product, and they are seeking dismissal of the case. During a hearing last month, Melancon ordered Domingue to disclose to the court all investigative files and any other materials used to develop the lawsuit. The judge said Domingue would have to explain why he included the 282 companies as defendants, even though many of them haven’t done business in Louisiana and many others have gone bankrupt. The judge said Domingue would be required to pay legal fees of any companies included in the lawsuit without proper justification.” The judge also expressed skepticism toward Domingue’s contention that the manufacturers had collectively conspired to conceal the dangers of mold in trailers and were thus each open to suit. Domingue contends that Judge Melancon has become an advocate for the defense side in the litigation. (Bruce Schultz, “Lawyer attacks critical judge in mobile-home suit”, Baton Rouge Advocate, May 22). (DURABLE LINK)
Filed under: asbestos, Baltimore, Cincinnati, Manhattan Institute, Mark Steyn, Mississippi, Ohio, tobacco, tobacco settlement
July 31 — 1.5 million pages served on Overlawyered.com. Last month set a new visitor traffic record, and this month will set another one …. Thanks for your support!
July 31 — N.J.: 172 nabbed on fake car-crash charges. “Capping a 19-month investigation, prosecutors [July 19] announced the indictment of 172 people in New Jersey, including a medical doctor, a lawyer and two chiropractors, charging them with staging 19 automobile accidents and filing false medical claims totaling more than $5 million. …’Runners’ would recruit drivers and passengers, who would meet ahead of time, typically in West New York, N.J., to discuss details of the staged collisions, which were mostly minor,” according to first assistant Hudson County prosecutor Terrence Hull. “Participants were paid up to $2,500 and would be coached about the types of injuries to fake, Mr. Hull said.” (“False Claims From Fake Crashes Leads [sic] to Charges Against 172”, New York Times, July 20, not online). Meanwhile, a detailed Boston Globe front-page investigation finds that lawyers employing “runners” to bring in accident business are contributing to a sharp run-up in the cost of auto insurance fraud in Massachusetts; one of the state’s biggest personal injury law firms “is under investigation by federal authorities for participating in a criminal scheme that resulted in more than $50,000 worth of claims being filed from a staged accident.” (Stephen Kurkjian, “Injury claims flourish in loophole”, Boston Globe, July 16; “Study ID’s high injury claim areas”, July 19). “Massachusetts is not alone in experiencing a dramatic increase in payments for suspicious injuries from minor automobile accidents. Fed by runners who are arranging for faked accidents and phony personal injury claims, medical payments made by auto insurers jumped by more than 30 percent last year in New York, according to a study by the Insurance Information Institute, an industry research group, in March.” (more).
July 31 — Global warming suit? “States like Bangladesh that are the victims of climate change have a good case in law for suing polluters like the United States for billions of dollars, a law professor will tell a London conference today. With the US delaying action on climate change and President George Bush refusing to ratify the Kyoto protocol, the case for court action is becoming overwhelming, according to Andrew Strauss, of the school of law at Widener University, Delaware.” (Paul Brown, “Rich nations ‘could be sued’ by climate victims”, The Guardian (U.K.), July 10) (& see Aug. 19, 1999).
July 31 — “The Lost Art of Drawing the Line”. “The air in America is so thick with legal risk that you can practically cut it and put in on a scale,” says Philip Howard, attorney at Covington & Burling and author of the new book The Lost Art of Drawing the Line, which was preceded by his bestselling The Death of Common Sense. Howard is working with the founders of the Concord Coalition to establish something to be called the Common Sense Coalition. “The trial lawyers have to be taken on,” he says. “Leadership is required by whoever can get public attention.” (Lucy Morgan, “Author sees good sense as cure for what ails us”, St. Petersburg Times, July 28; official book site; Diane Rehm show, June 5; William Galston, “The Art of Judgement” (review), Washington Monthly, July/August; Cass Sunstein, “The Stifled Society” (review), The New Republic, July 9; Pete DuPont, National Center for Policy Analysis, “Drawing the Line”, May 1).
July 30 — “Couple sues over flaming Pop-Tart”. In Washington Township, N.J., Brenda Hurff and her husband are “suing the Kellogg Co. for $100,000 in damages caused to their home when an unattended Pop-Tart allegedly burst into flames inside their toaster.” A spokesman for the Battle Creek, Mich., cereal maker counters: “Pop-Tarts are safe and do not cause fires.” (Reuters/CNN, July 28; Jake Wagman, “From toaster to lawsuit”, Philadelphia Inquirer, July 28).
July 30 — Mommy, can I grow up to be an informant? Controversy mounts over large payouts ($40 million in one case, $25 million in another) under the False Claims Act to “whistle-blowers” who rat out overbilling by government contractors in health care, defense and other areas. “‘I think it’s a ridiculous ripoff of the taxpayers’ money,’ said U.S. Representative John Duncan, a Texas Republican, who has proposed a $1 million cap on rewards. ‘I don’t mind some compensation for these people, but I do not think they should be allowed to make off like bandits.'” A lawyer who represented one of the informants in the $40 million case takes a different view: ”It’s almost got to be set up like the lottery or very few people in their right mind would do this.” An informant given only $12 million for his work on an overbilling case against Quorum Health Group has gone to court to demand more, calling the figure “insulting” (Alice Dembner, “Whistle-blower windfalls questioned”, Boston Globe, July 29). Last year the U.S. Supreme Court upheld the constitutionality of the act’s informant (“relator”) provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, 2000, reprinted at Cadwalader, Wickersham & Taft site)(more on False Claims Act: Sept. 9, 1999; Jan. 18, 2000; April 30, 2001).
July 30 — N.J. court declares transsexuals protected class. Earlier this month an appeals court in the Garden State ruled that “gender dysphoria”, or dissatisfaction with the gender one has been assigned at birth, is protected as a handicap under the state’s disabled-rights law. In addition, it declared that by banning employers from discriminating on grounds of sex the law actually bans them from discriminating on the basis of “qualities society considers masculine or feminine”. The American Civil Liberties Union was overjoyed, but our editor, quoted by Fox News, was not. (Catherine Donaldson-Evans, “Transsexual Rights in Spotlight Following N.J. Court Ruling That Condition a Handicap”, Fox News, July 9; Mary P. Gallagher, “Transsexuals Held to be Protected Class Under New Jersey Law”, New Jersey Law Journal, July 11) (more transsexualism cases: March 23, 2001, May 31, 2000).
July 27-29 — Welcome New York Times readers. John Tierney’s column on overzealous prosecution quotes our editor and mentions this site. (“The Big City: Prosecutors Never Need to Apologize”, July 27)(reg).
July 27-29 — Report: “medical errors” studies overblown. “Alarming studies suggesting that medical errors kill close to 100,000 U.S. hospital patients each year probably overestimate the problem, with the real total perhaps 5,000 to 15,000, researchers say.” Readers of this space will not be surprised. The higher estimates have been much cited by Ralph Nader and others to promote medical malpractice litigation, but they rest on case-review studies whose format is problematic because reviewing doctors show little consensus as to which cases involve errors and which errors cause or hasten death, according to the new report in the Journal of the American Medical Association. In addition, “clinicians estimated that only 0.5 percent of patients who died would have lived three months or more in good cognitive health if care had been optimal.” (“Number of Medical-Error Deaths Overestimated, Researchers Say”, AP/ FoxNews.com, July 24; “Researchers Question Data on Fatal Medical Errors”, Reuters/ABC News, July 24; “Findings: Study Disputes Report on Fatal Medical Errors”, Washington Post, July 25; Rodney A. Hayward and Timothy P. Hofer, “Estimating Hospital Deaths Due to Medical Errors: Preventability Is in the Eye of the Reviewer,” JAMA, July 25; National Academies report on medical errors, 1999).
July 27-29 — Needed: assumption of risk. Community swimming holes are disappearing, and one reason is landowners’ fear of litigation, reports the New York Times. “In New York, landowners have become particularly wary of swimmers,” because state law pointedly omits swimming from a list of activities that they can permit to visitors without fear of liability. “Though recreation groups have lobbied to expand the law to include swimming, these efforts have been blocked by the state’s trial lawyers. ‘We have done everything we could to slip it in,’ said Neil F. Woodworth, deputy executive director of the Adirondack Mountain Club. (Winnie Hu, “Keep Out: The Water’s Fine, but Private”, New York Times, July 23 (reg)). First-time skydiver Paul Bloebaum is suing Archway Skydiving Center in Vandalia, Ill. over injuries incurred in his maiden jump; he “wants a judge to throw out the lengthy waiver he signed before he jumped and make Archway responsible for his injuries. Bloebaum wrote his initials beside all 25 paragraphs of the release.” (“Company Sued Over Skydiver’s Fall”, AP/Fox News, July 25). And Atlanta Braves outfielders, after catching third outs to end an inning, routinely throw the balls to fans in the stands, but now a woman is suing star centerfielder Andruw Jones saying she was hit in the face when he did that recently (Carroll Rogers, “Bullpen becoming a strength”, Atlanta Journal-Constitution, July 22 (third item)). However, a Michigan appeals court “has overturned a million-dollar verdict against the Detroit Tigers for injuries suffered by a child hit by a baseball bat splinter.” (Alan Fisk, “$1 Million Ballpark Injury Award Strikes Out”, National Law Journal, July 27).
July 27-29 — Chandra, Monica, and sex-harass law. Why is the furtive liaison between the ardent young woman and the powerful older man still so common in Washington, D.C.? “Politicians are immune from the sexual harassment systems that protect young women in corporate workplaces and academia, where the presumption has become that the older male will say no or face brutal consequences. These kinds of advances would cost your political science professor his job. In an office, it would be sexual harassment. In D.C., it’s still 1951, and young girls are still curvy temptresses.” (Dahlia Lithwick, “G-Girl Confidential”, Slate, July 25).
July 27-29 — Feeling queasy? Litigation over E. coli food poisoning has proliferated rapidly, so much so that there’s now a law firm whose specialty consists of filing cases over the nasty bacterium. (“E. Coli’s Twisted Tale of Science in the Courtroom and Politics in the Lab”, Los Angeles Times, June 6, reprinted at STATS).
July 26 — Welcome CourtTV.com visitors. This week the cable network’s online “Caught in the Web” feature profiles “the hub of all things legally absurd on the Net”, from its origins on our editor’s hard drive as “an out-of-control file of favorite bookmarks” to our current popularity on who knows how many continents (key to the editorial mix: “frequent food pellets” so that you regular readers “keep on pressing the lever”). Seriously, this counts as the most comprehensive profile of the site that’s appeared anywhere, for which we’re grateful to CourtTV.com correspondent Adrien Seybert (the opening Shakespeare line didn’t actually come up in our talk, though) (“Chasing the Ambulance Chasers”, July 25). Also: we’re a web pick of the week for Australia’s FHM (“It’s a Guy Thing”); Herff.com (“Neat stuff on the Internet” — see “Shark Indigestion”); Follow Me Here weblog, early July (450k).
July 26 — Dispute over $118 pizza bill costs $18,000. Nebraska: “Lancaster District Court Clerk Kelly Guenzel is now pondering whether she should go to court to force the county to pay the $18,000-plus in legal fees she racked up defending herself against a charge she misused public funds in reimbursing herself for $118.76 worth of pizza.” (“Pizza bill just grows and grows” (editorial), Lincoln Journal-Star, undated (sent to us July 20))
July 26 — Latex liability, foreseeable or not. “Bucking a national trend in design defect cases, the Wisconsin Supreme Court upheld a jury’s finding that a brand of latex gloves was defectively designed, even though no one, including the manufacturer, was aware of latex-related health problems until years after the brand was put on the market.” Rejecting the argument that the company should be liable only for foreseeable risks, the court ordered Smith & Nephew AHP Inc. to pay $1 million to Linda M. Green, who developed a latex allergy from the naturally occurring substances found in the gloves. (Gary Young, “Defective Latex Glove Costs $1 Million”, National Law Journal, July 23).
July 26 — “Criminals could sue their victims”. Dateline U.K.: “Criminals could find it easier to sue members of the public who injure them while defending their homes, under Law Commission reforms proposed yesterday. … The recommendations are open for consultation until the autumn when a final report is made to Parliament.” (Frances Gibb, The Times (London), June 29).
July 26 — Quiz: which are the made-up cases? Funny L.A. Times feature where you have to guess which outlandish news report isn’t true: “Hypersensitivity, political correctness and frivolous lawsuits are taking over the world. Increase your awareness with this handy quiz.” (Roy Rivenburg, “It’s Truly a Dangerous World Out There”, July 24) (via Kausfiles).
July 25 — By reader acclaim: “Parents file suit over son’s drug death”. “The parents of an 18-year-old University of Florida student who died after taking OxyContin last year have filed a lawsuit against the drug’s manufacturer and the pharmacy chain where one of Matthew Kaminer’s friends stole the painkiller.” Kaminer was found dead in a fraternity house bedroom after taking one of the pills, stolen by another student from an Eckerd drugstore. “The powerful painkiller was designed to combat chronic pain with a time-release formula,” but abusers chew the capsules in order to get “an immediate, heroin-like high.” The parents are blaming drugmaker Purdue Pharma as well as the Eckerd chain. (Erika Bolstad, Miami Herald, July 24) (via WSJ OpinionJournal.com “Best of the Web“).
July 25 — 220 percent rate of farmer participation. “In a 1999 major class-action settlement, the Clinton administration agreed to pay $50,000 to each black farmer who had suffered discrimination at the hands of the federal government. As of 2001, some 40,000 people have applied for their cash. The problem is, according to the Census Bureau, there are only 18,000 black farmers in the country.” (Steve Brown, “Settlement Is a Crass-Action, USDA Employees Say”, Fox News, July 14).
July 25 — “Trial lawyers derail Maryland small claims reform”. “In an unexpected setback to small claims reform, on May 17 Maryland Governor Parris Glendening vetoed HALT-supported legislation, despite its unanimous approval by both houses of the state legislature.” The legislation would have raised the jurisdiction of Maryland’s small claims court from $2,500 to $5,000, and eliminated formal pleadings in cases below $2,500, reducing the occasion for disputants to hire lawyers. “According to his message, Glendening acted in response to concerns that ‘prompted the Maryland Trial Lawyers Association to request a veto of this bill.’ … The Maryland Trial Lawyers Association organization was one of the largest institutional supporters of Glendening’s 1998 reelection campaign, donating $12,000 to him directly and spending about $110,000 on radio and television advertisements supporting him.” (Tom Gordon, HALT.org “Legal Reformer”, Spring) (more on small claims: Sept. 29, Oct. 3 and (letters) Oct. 5, 2000) (& see letter to the editor, Aug. 1).
July 25 — Yesterday’s visitors to this site came from domains including eop.gov, usdoj.gov, sec.gov, nrc.gov, treas.gov, ornl.gov; dowjones.com, trib.com, usnews.com, disney.com; boeing.com, gendyn.com, lucent.com, ibm.com, fujitsu.com, honeywell.com, att.com, philips.com, pg.com, ual.com, oracle.com, cat.com, sun.com, cisco.com, intel.com, pge.com, roche.com…
…columbia.edu, uiuc.edu, asu.edu, uncg.edu, american.edu, lu.se, uoregon.edu, ucsd.edu, stanford.edu, utoronto.ca, gatech.edu, rutgers.edu, auckland.ac.nz, wustl.edu, upenn.edu; state.mn.us, state.fl.us, state.oh.us, state.mo.us; omm.com, debevoise.com, kirkland.com, ffhsj.com, lockeliddell.com, corboydemetrio.com, atlahq.org (which has been poking around here a lot lately); army.mil, af.mil, navy.mil, nipr.mil; thehartford.com, prudential.com, statefarm.com, travelers.com, fanniemae.com, bear.com, schwab.com, jpmorgan.com, socgen.com, agedwards.com, norwest.com, tiaa-cref.org; cato.org, cir-usa.org; jcpenney.com, fedex.com, ups.com; bigpond.com, gc.ca, gov.au, and asce.org, among many, many others including countless local ISPs. Moral: your competitors read us regularly, so there’s no reason why you should feel guilty about doing so too.
July 24 — “The Louima millions”. “Last week, after the Giuliani administration and the Patrolmen’s Benevolent Association agreed to pay [Abner] Louima nearly $9 million to settle his police brutality lawsuit, Louima said he did not feel like a rich man. That’s because Louima cannot touch one dime until he settles a bitter quarrel with [his lawyers]”. The dispute pits the lesser-known attorneys who originally represented Louima against the high-profile trio of Johnnie Cochran, Barry Scheck, and Peter Neufeld (“Johnnie- come- latelies”) who took over afterward. Before getting to the juicy particulars, be sure to catch the opening quote, from an attorney named Harold J. Reynolds: “So ingrained and unexamined is the notion of the one-third contingency fee that it has taken on the character of a natural law. … if liability and recovery were certain, then there is no contingency that Louima’s lawyer is risking … [and the operation of the fee percentage] would have done nothing except guarantee to that lawyer a freight train of money that should have been paid to Abner Louima.” (Peter Noel, Village Voice, July 18-24). More on why contingency fees are so seldom discounted: Judyth Pendell (Manhattan Institute), “Price Colluder, Esq.”, Forbes, July 23, reprinted at MI site. Update: see Nov. 8-10, 2002.
July 24 — Junk fax litigation: blood in the water. We’ve covered the saga of junk fax litigation, in which federal law allows class action lawyers to demand $500-$1,500 per unsolicited fax sent, which means the sums at stake can quickly mount up to enormous levels (see Oct. 22, 1999; March 3, 2000; March 27, 2001). Now the New York Times weighs in to report a number of recent breakthroughs for the lawyers, including a recent $12 million judgment that forced Hooters of Augusta, Ga., a unit of the national restaurant chain, to declare bankruptcy; it had been an advertiser in six omnibus fax mailings sent to 1,321 customers. Some more new developments: “Last month, a South Carolina judge approved a settlement of another class-action suit in which a North Charleston Ramada Inn paid $450,000 for sending thousands of faxes advertising a New Year’s Eve celebration. Last week, a Texas judge authorized a class-action trial of claims on behalf of thousands of people who received fax advertisements from an apartment rental company.” (William Glaberson, New York Times, July 22 (reg)).
July 24 — “Melbourne man patents the wheel”. “A Melbourne man has patented the wheel. Freelance patent attorney John Keogh was issued with an Innovation Patent for a ‘circular transportation facilitation device’ within days of the new patent system being invoked in May. But he has no immediate plans to patent fire, crop rotation or other fundamental advances in civilisation. Mr Keogh said he patented the wheel to prove the innovation patent system was flawed because it did not need to be examined by the patent office, IP Australia.” (Nathan Cochrane, The Age (Melbourne), July 2).
July 23 — “2nd Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims”. “The 2nd U.S. Circuit Court of Appeals has upheld sanctions against two law firms for pursuing frivolous securities claims. New York’s Schoengold & Sporn and Philadelphia’s Berger & Montague were sanctioned a total of $84,153 based on the fact that under a settlement advocated by Schoengold & Sporn, the plaintiff class in the case would have received nothing, while the firm would have been paid $200,000.” Trial judge Shira Scheindlin had reduced the sanctions against Berger & Montague after concluding that it had acted to a significant extent at the direction of the other class-action firm. (Mark Hamblett, New York Law Journal, July 16).
July 23 — Stories that got away. News items from recent months that fell through our editorial cracks at the time, but better late than never:
* Sacramento Bee investigation of the state of the environmentalist movement includes a look at the extent to which some lawyers may be using endangered-species complaints as a way of generating legal fees for themselves (Tom Knudson, “Litigation central: A flood of costly lawsuits raises questions about motive”, April 24) (series). See also Michael Grunwald, “Endangered List Faces New Peril,” Washington Post, March 12; “Protect Animals, Not Lawyers” (editorial), Detroit News, May 7; “Congress Grapples With Endangered Species Law”, AP/Fox News, May 9. And the more recent controversy over agricultural water use in Klamath Falls, Ore., reminds us of the “enclosures” by which upper-class landowners tossed tenant farmers off the land in early industrial England: Michael Kelly, “Evicted by Environmentalists”, Washington Post, July 11 (& letter to the editor in response from Brock Evans, July 13).
* The still-in-progress controversy over whether the Digital Millennium Copyright Act really allows the recording industry to keep a Princeton professor from publishing a research paper on the subject of breaking digital music encryption (Declan McCullagh, “Watermark Crackers Back Away”, Wired News, April 26; Janelle Brown, “Is the RIAA running scared?”, Salon.com, April 26; Brenda Sandburg, “Recording Industry Sued in Battle Over Research”, The Recorder, June 7). See also Carl S. Kaplan, “CyberLaw Journal: Does an Anti-Piracy Plan Quash the First Amendment?”, New York Times, April 27; Brad King, “ISPs Face Down DMCA”, Wired News, Dec. 23, 2000).
* That odd case from Everett, Wash. where a federal judge “has thrown out the kidnapping and sexual assault convictions of a man who had argued he was not responsible for those crimes because another of his 24 separate personalities had committed it.” A Snohomish County judge declared the multiple personality defense inadmissible, but “U.S. District Judge Marsha J. Pechman in Seattle ruled Friday that it was up to the trial court to clarify the question for jurors by establishing standards for assessing legal responsibility.” (“Judge Throws Out Conviction of Multi-Personality Defendant”, AP/Fox News, June 12).
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