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August 2001 archives


August 10-12 — Smile-flag lawsuit. Dr. Patricia Sabers, a dentist in Sarasota, Fla., sometimes flies a colorful pennant adorned with smiles outside her office, but now a rival dentist, Mitchell Strumpf, is suing her, saying the smile on her flag is a distinctive design that he registered as a service mark some years ago and which he thus has the exclusive right to display in the area. “Sabers said her generic-looking flag comes from a dental supply company catalog”. Sabers “should get her own service mark,” said Strumpf’s attorney, Michael Taaffe. “It’s not a laughing matter.” (Kelly Cramer, “Smile logo brings frowns”, Venice Herald-Tribune, July 31).

August 10-12 — Perils of extraterritorial law. Elite opinion in the U.S. has been relatively uncritical toward the idea of putting unpopular foreign leaders on trial outside their home country for outrages committed in their official capacities, but the policy could easily backfire against us given that there are an awful lot of people and factions around the world aggrieved at the United States and its leaders, observes the former chief of staff of the Senate Foreign Relations Committee (Pat M. Holt, “The push for human rights could hurt Americans”, Christian Science Monitor, Aug. 2). And agitation continues for a lawsuit against the U.S. in international courts to blame us for global warming and our failure to back stronger steps against it (Andrew Simms, “Global Warming’s Victims Could Take U.S. to Court”, International Herald Tribune, Aug. 7).

August 10-12 — School email pranksters to Leavenworth? Sen. Robert Torricelli (D-N.J.) recently introduced a bill called the School Website Protection Act of 2001 which would provide that anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally affects or impairs without authorization a computer of an elementary school or secondary school or institution of higher education” will to go federal prison for up to 10 years.” Critics say the bill “is worded so vaguely it would turn commonplace activities into federal crimes to be investigated by the U.S. Secret Service.” “Sending one unsolicited e-mail affects a computer,” says Jim Dempsey, deputy director of the Center for Democracy and Technology. “If I send an e-mail to my student’s teacher and I didn’t have her permission, I violate the act.” (“Senator Targets School Hackers”, Declan McCullagh, Wired News, Aug. 1).

August 10-12 — New in Letters. The operator of an online pet store writes in to amplify our coverage of his recent suit against participants in a hobbyist listserv (more).

August 10-12 — U.K.: Labour government proposes curbs on malpractice awards. In Britain, the newly reelected Labour government of Tony Blair is proposing to limit skyrocketing awards in medical malpractice cases against the National Health Service. It wants to adopt “fixed tariffs of compensation”, i.e. prescheduled amounts for types of injury that can be looked up in tables in lieu of individualized argumentation. Also in the works is a shift to in-kind awards, such as the provision of future nursing services, instead of large lump sums. “The Government is keen to cut the amount paid in lawyers’ fees — which often exceed the damages awarded by the courts.”

“The tariff scheme is similar to one brought in by the previous Tory government — amid stiff Labour opposition — to cut the cost of criminal-injuries compensation. Mr Milburn [Health Secretary in the Blair Cabinet] is determined to take an axe to the spiralling cost to the health service of legal claims which he believes are being driven by profiteering lawyers. ‘We need to get the lawyers out of the operating theatres and off the backs of doctors — and get doctors out of the courts,’ said a Health Department aide. ‘The amount of litigation is rising and causing distress not only to NHS staff but also to patients who find themselves drawn into protracted and upsetting legal battles.'” The Bar Council, representing barristers, has already attacked the proposals. (Joe Murphy and Jenny Booth, “Labour blocks big payouts to victims of NHS blunders”, Sunday Telegraph (U.K.), July 8).

August 9 — Why we lose workplace privacy. Employers are monitoring their employees’ email, web surfing logs and hard drives more than ever these days, and the number one reason is to protect themselves from lawsuits. “Almost every workplace lawsuit today, especially a sexual harassment case, has an E-mail component,” says one expert. Plaintiffs’ lawyers subpoena hard drives in search of sexually oriented jokes or other material they can use to build a case, and rather than leave themselves vulnerable many companies conduct pre-emptive searches before disputes arise. (Dana Hawkins, “Lawsuits spur rise in employee monitoring”, U.S. News & World Report, Aug. 13).

August 9 — “Nudist burned while fire-walking files lawsuit”. “A nudist whose feet were burned while fire-walking has filed a lawsuit that accuses event organizers of leading participants to believe the stunt was safe.” The suit by Eli Tyler of El Cajon claims that the organizer “told participants the walk would be ‘a safe and spiritual experience'” but that seven participants were hospitalized with severe burns to their feet. The owner of the resort where the event took place, who is also named as a defendant in the action, “said participants were warned of the dangers and each agreed not to sue if they were injured.” (AP/Sacramento Bee, Aug. 8).

August 9 — Forbes on lead paint suits, cont’d. The “suits claim the companies misrepresented the paint as safe for use around children. Evidence? In 1920 National Lead told retailers to be nice to children because they might someday be customers. More: In 1930 the company distributed coloring books with poems and a cartoon drawing of its Dutch Boy character. Hard to imagine children having much influence on paint purchases.” (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14 (reg)).

August 7-8 — Victory in California. By a 5-1 margin, the California Supreme Court has ruled that crime victims cannot sue gun manufacturers over criminals’ misuse of their wares. In doing so it reinforces a trend so clear that some day it might even sink in to the folks over at the hyperlitigious Brady Campaign: “Every state high court and federal appellate court in the nation to consider such lawsuits has ruled that makers of legal, non-defective guns cannot be sued for their criminal misuse.” (“California Supreme Court Says Gunmaker Not Liable in Killing Spree”, AP/Fox News, Aug. 6).

August 7-8 — Wrong guy? Doesn’t seem to matter. Antonio Vargas, a bus driver in Northern California, has the same name as an Antonio Vargas who owes child support in San Bernardino County, in Southern California. He’s been trying to disentangle himself from attachments, process servers and other legalities aimed at the other Mr. Vargas, but with at best temporary success — and it’s been going on for twenty years, he says. An official with the desert county acknowledges that Mr. Vargas’s protestations of being the wrong guy were probably ignored for a while; so many men falsely use that excuse that why should they listen?, seems to be the official’s reasoning (Dan Evans, “It’s the wrong Vargas”, San Francisco Examiner, Aug. 2).

August 7-8 — Trial lawyers vs. OxyContin. The breakthrough pain medication, a timed-release opioid, has brought unprecedented relief to sufferers from advanced cancer and chronic disease but can result in addiction if improperly prescribed and is unusually easy to abuse on purpose: users crush the time-release capsules into a powder that yields a heroin-like high when snorted or injected. Now, amid public alarm about its emergence as “hillbilly heroin”, lawyers have filed billions of dollars in claims against the drug’s manufacturer, Purdue Pharma, distributor Abbott Labs, and other companies; they’re also advertising heavily for clients, and the state of West Virginia has stepped in with its own suit. Well-known Cincinnati tort lawyer Stanley Chesley, of breast-implant and hotel-fire fame, is “working with a group of lawyers from Ohio, Kentucky and West Virginia on similar cases.” If such litigation drives the drug off the market, a million or more legitimate users may be forced back to lives of agonizing pain, but that won’t be the lawyers’ problem, now, will it?

SOURCES: “Maker of OxyContin is hit with lawsuits”, AP/Baltimore Sun, July 27; Paul Tough, “The Alchemy of OxyContin: From Pain Relief to Drug Addiction”, New York Times Magazine, July 29 (reg); National Clearinghouse for Drug and Alcohol Information; Amanda York, “1st Ohioan named in Oxy suit”, Cincinnati Enquirer, July 10; Norah Vincent, “A New ‘Worst’ Drug Stirs Up the Snoops”, Los Angeles Times, July 19; Eric Chevlen, “A Bad Prescription from the DEA”, Weekly Standard, June 4; “W.Va. files first state suit against OxyContin firms”, AP/Charleston Daily Mail, June 12; Common Sense for Drug Policy; “Oxycontin Lawsuit Aims For Class-Action Status”, Roanoke Times, June 19; many more links (Google search on “Oxycontin + lawsuits”). If you click on “OxycontinInfoCenter.com“, a sponsored link on Google, you get “Oxycontin law info and lawyers who specialize in Oxycontin litigation” (see also July 25).

August 7-8 — Dotcom wreckage: sue ’em all. Class action firms are suing not only investment banks and directors of failed dotcoms, but also executives and lenders. (Joanna Glasner, “Bankrupt? So What? Lawyers Ask”, Wired News, Aug. 6).

August 7-8 — “Judge orders parents to support 50-year-old son”. “In what could turn out to be a landmark decision, a Ventura County Superior Court judge ordered a Ventura couple to support their 50-year-old son indefinitely. Judge Melinda Johnson ruled two weeks ago that James and Bertha Culp of Ventura pay their son David Culp $3,500 a month for living expenses because he is incapable of supporting himself. Culp suffers from depression and bipolar disorder.” The son had practiced as an attorney for 19 yearss, but his practice fell apart and he went on disability. “Johnson based her ruling on state law, Family Code section 3910(a). It states that ‘the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means,'” language which the judge called “unambiguous on its face”. Representatives of the National Alliance for the Mentally Ill called the decision a “bad judgment” that could “set a terrible precedent”. (Leslie Parrilla, Ventura County Star, Aug. 2).

August 6 — “Airline restricts children flying alone”. America West Airlines, changing its previous policy, has announced that it will no longer allow children of 11 years or less to fly alone on connecting (as opposed to nonstop) routes. Last month a young girl traveling from L.A. to Detroit was mistakenly allowed to board a connecting flight to Orlando, and it took nearly a day before she was reunited unharmed with her father. The father, Bill McDaniel, said he was thinking of hiring a lawyer and suing because the airline’s proffered free ticket and other compensation was not enough. So now all families, including those who believe their kids can handle the responsibility, stand to lose a freedom that saves them a lot of money as well as hassle (Channel 2000, Aug. 3; “Airline Puts Young Girl On Wrong Plane”, July 18).

August 6 — Big fish devour the little? After hobbyists on a listserv dealing with aquatic plants criticized one online pet store for allegedly “horrible” service and worse, its operator proceeded to sue various individual posters who he says defamed his company with such comments. His complaint asks for $15 million in compensatory and punitive damages. (Aquatic Plants Mailing List listserv; discussion; TheKrib.com; AquariaCentral forums; Usenet rec.aquaria.freshwater.plants) (see letter to the editor from Robert Novak, owner of PetsWarehouse.com, Aug. 10)(see extensive update on case May 22-23, 2002).

August 6 — When trial lawyers help redesign cars. Class action lawyers suing GM over its old C/K full-size pickup trucks are venturing onto what you might think is perilous ground by proposing a retrofit change to the vehicles’ design, with effects on performance that can’t be foreseen with complete certainty. Aren’t they worried that if the design turns out to malfunction in some way they’ll be held responsible for the consequences? (Well, no, they probably aren’t, since they’ll just find some way to blame the carmaker if that happens.) (Dick Thornburgh (former U.S. attorney general), “Designing Ambulances and Retrofitting Class Actions”, National Law Journal, July 18).

August 6 — Mailing list switch. If you’ve been on the list to receive our periodic announcements of what’s new on Overlawyered.com, you should by now have received an email from Topica.com, our new list-hosting service, inviting you to continue your subscription. To do so, just respond to their email. If you take no action you’ll automatically be dropped from the list as ListBot closes down. If you discarded or didn’t receive the Topica email, or would like to join the list for the first time (it’s free), just visit our mailing list page.

Another logistical note: we’ve now established a separate archives page that makes it easier to navigate Overlawyered.com‘s archives without repeatedly having to download large pages. Just as we encourage you to bookmark our search page if you expect to perform frequent searches at our site, so we encourage you to bookmark the new archives page if you expect to browse our archives often.

August 3-5 — “Lawyers pay price for cruel hoaxes”. “Two Florida lawyers, whose paternity hoaxes last year cost families of four Alaska Airlines crash victims hundreds of thousands of dollars to rebut, finally will have to pay for a smidgen of the damage they inflicted.” Attorneys Robert Parks and Edgar Miller of Coral Gables, Fla. filed suits on behalf of four distinct sets of supposed secret Guatemalan heirs claimed to have been fathered by men who perished on the doomed flight without direct heirs (see Nov. 29, 2000, April 10, 2001). The suspiciously multiple nature of the filings was noticed only by chance, and the outraged families of the deceased had to spend hundreds of thousands of dollars to fend off the phony heirs’ claims. Now, Parks and Miller have agreed in a court-ordered mediation to pay $225,000 toward the families’ costs; Seattle lawyer Harold Fardal, who assisted their claims, will help split the cost, though it doesn’t begin to cover the expense the families faced in rebutting the claims. “Miller, by his own admission, has [represented survivor claims] as many as 100 times before, mostly in Central and South America.”

To investigate the phony claims, the surviving Clemetson and Ryan families sent investigators to Guatemala, where the supposed secret heirs lived. “But an investigator and a court-appointed guardian found that the birth records were forged. They found that the alleged grandmothers couldn’t keep the girls’ names straight, couldn’t say where their own daughters were born or how they died, couldn’t remember their own addresses and had no knowledge of the details alleged in the inheritance claims. In February, DNA tests proved the girls weren’t related to the men.” The families now say they may file a complaint with the Florida bar against Parks and Miller. (Candy Hatcher, “Lawyers pay price for cruel hoaxes”, Seattle Post-Intelligencer, Aug. 2; “Claims against two Flight 261 victims thrown out” (AP), Feb. 7; “Heirs claimed in Flight 261 twist” (AP), Nov. 22, 2000).

According to Seattle Post-Intelligencer columnist Candy Hatcher, Seattle attorney Mark Vohr, who later withdrew from the case, sent the same photograph of two little Guatemalan girls to two different families against whom he was pursuing secret-heir claims. And: “The woman who was providing temporary housing for the girls and their ‘grandmothers’ said she was working with a ‘lawyer’ in Florida who had helped her when both her husbands died in aviation disasters in Central America. The ‘lawyer’ turned out to be an investigator for the Florida lawyers.” (“False claims add to the agony of a tragedy”, Feb. 26). See also Richard Marosi, “Unexpected ‘Heirs’ of Flight 261”, L.A. Times, Jan. 31, no longer online at Times site but Googlecached. (DURABLE LINK)

August 3-5 — More from Judge Kent. Yesterday we linked to a scorching opinion by Judge Samuel Kent of the U.S. District Court for the Southern District of Texas, excoriating what he saw as incompetent pleadings by the lawyers on both sides of a maritime injury case. Reader Keith Rahl points out that this is just the most recent in a series of colorful opinions from Judge Kent’s pen, and directs our attention to two of them that have been reprinted at The Smoking Gun: one in which he orders a change of venue (to the District of Columbia) for a suit that lawyers for the government of Bolivia had filed in his Galveston courtroom against the tobacco industry; and this one turning down a defendant’s request to transfer a case to Houston due to claimed travel inconveniences.

August 3-5 — Dra-clonian. By a margin of 265 to 162, the U.S. House of Representives has voted “to approve the Human Cloning Prohibition Act of 2001. It would impose steep criminal and civil penalties on any individual violating the ban — even scientists who create cloned human cells solely for research purposes. The penalties make participation in human cloning in any way — from creating cloned human cells to patients receiving medicine based on such research done abroad — subject to a felony conviction that could bring a 10-year prison term and, if done for profit, civil penalties of more than $1 million.” (Megan Garvey, “House Approves Strict Ban on Human Cloning”, L.A. Times, Aug. 1; Kristen Philipkoski, “What Side Effects to a Clone Ban?” Wired News, Aug. 1) The best critique we’ve seen of the stampede to legislate has come from Virginia Postrel at her VPostrel.com (several entries in recent weeks; also check out her new commentary on firearms and journalists).

August 2 — Fee fights. They’re worse than catfights, aren’t they? Lawyers are snapping and swatting at each other over the fee spoils of several dubious but lucrative mass-tort cases. “Wallace Bennett, former associate dean at the University of Utah’s law school, is suing well-known lawyer Robert DeBry, claiming his old friend is cheating him out of money he earned while they worked together on national breast implant litigation. … Bennett was part of a legal team that included former U.S. Sen. Frank E. Moss and former Utah Supreme Court Justice D. Frank Wilkins. … [He] alleges breach of contract, intentional breach of fiduciary duty, conversion and fraudulent transfer of assets, and usurpation of business opportunities.” (Elizabeth Neff, “Former U. of U. Dean Sues Ex-Law Partner Over Fees”, June 28, Salt Lake Tribune, no longer online on Tribune site but Googlecached). The breast implant campaign was based on charges of systemic illness soon refuted in scientific studies, which didn’t stop trial lawyers from cashing in a $7 billion settlement.

Meanwhile: “Several of the plaintiffs’ lawyers in the massive Orthopedic Bone Screw case are putting the screws to each other as an ugly battle has erupted” over how a court divided $12 million in fees deriving from a $100 million settlement by Acromed Corp. Among the charges flying: fraud, contempt of court and abuse of process. (More on the bone screw litigation: Oct. 24, 2000.) (Shannon P. Duffy, “Disgruntled Lawyers Sue in Louisiana to Get Bigger Share of Bone Screw Fees”, The Legal Intelligencer, July 18). Last but certainly not least, anti-tobacco prof. Richard Daynard has followed through on his pledge to sue legal sultans Richard Scruggs and Ron Motley, claiming they’d promised to cut him in on a 5% contingency share of the maybe $3 billion they stand to haul in from the tobacco caper. “In his role as intellectual godfather of tobacco litigation, Daynard has been quoted in news articles hundreds of times — though always as a public health advocate, never as a private litigator.” (see April 21, 2000). Scruggs and Motley “said that if Daynard had indeed been a member of their legal team, his attacks on a settlement proposal favored by their clients, the states, would have been a serious ethical lapse.” (Myron Levin, “Tobacco Wars’ Huge Legal Fees Ignite New Fight”, Los Angeles Times, May 20, reprinted at NYCClash.com)

August 2 — “Baskin-Robbins lawsuit puts family in dis-flavor”. The Janze family of Alamo, Calif. is surprised to have gotten such a disrespectful reception in the press and on the Web for its lawsuit against the ice cream chain over a frozen confection strewn with fizzy “Pop Rocks”, a scoop of which they say sent their 5-year-old daughter Fifi to the hospital. “Shrek Swirl” is “one of several ogre-related treats tied to the animated movie ‘Shrek’.” Baskin-Robbins spokeswoman Debra Newton “said the Janzes’ complaint has been the only one reported to the company. ‘What we can tell you is that we have absolutely no indication that there are any safety concerns whatsoever with Shrek Swirl,'” Newton said. (Claire Booth, Knight-Ridder/Bergen County (N.J.) Record, July 19).

August 2 — “Ouch”, they explained. It’s every lawyer’s nightmare: to be the target of a judicial opinion as scathing as this one from federal judge Samuel Kent (S.D. Tex.). Neither side’s attorney gets out unscorched (Bradshaw v. Unity Marine, June 26, reprinted at National Review Online).

August 1 — Batch of reader letters. Latest assortment covers everything from exploding Pop-Tarts and special-ed “mainstreaming” to small claims reform, IOLTA and zero tolerance, and includes an explanation of an unusual photograph sent in by a reader.

August 1 — “Businesses bracing for flood of lawsuits after state court ruling”. “If you wear glasses, use a hearing aid or take medication for high blood pressure, you now may be legally disabled in California.” Sacramento’s homegrown version of disabled-rights law is even more sweeping than the federal Americans with Disabilities Act, and the divergence has been widened by a new state law that “significantly broadens the definition of disabled and throws open the courthouse doors to workers with a wide range of diagnosable ailments — from depression to chronic back pain.” Things got even dicier “when a state appeals court in Los Angeles ruled that the new law applies retroactively to potentially thousands of cases that arose before Jan. 1, when the law went into effect. Employers are bracing for an onslaught of claims, warning that the statute signals open season on business.” (Harriet Chiang, “Businesses bracing for flood of lawsuits after state court ruling”, San Francisco Chronicle, July 29; Mike McKee, “California Disability Rules Declared Retroactive: State Supreme Court May Have to Referee”, The Recorder, July 27).


August 20-21 — “Man suing after drunken driving crash”. Nashua, N.H.: “Three years ago, a Merrimack man crashed his Jeep in a Londonderry sand pit, killing a friend. Now, he’s suing the pit’s owner and the couple who threw the party where he was drinking before the crash. Albert Gordon, 36, charges Jay and Susan Barrett of Londonderry were negligent in letting him get drunk at a company party and didn’t warn him and other guests of the dangers of four-wheeling in the sand pit next door. He alleges the pit owner, Continental Paving Inc., should have done something to keep people off its property or warn them of the danger.” Gordon was convicted of aggravated driving while intoxicated; prosecutors said his “blood alcohol level after the accident was more than twice the legal limit for driving.” (AP/Boston Globe, Aug. 16)

August 20-21 — Jury orders Cessna to pay $480 million after crash. Sure, go ahead and let trial lawyers swallow the light aircraft industry — no doubt they’ll do a better job running it. Tobacco-fee angle: one of the plaintiff’s firms in the case is that of Fred Levin, who hauled in an estimated $300 million representing Florida in the tobacco suit, gave enough to the University of Florida’s law school to get it named after himself, and clearly knows how to reinvest his winnings. (Bill Kaczor, “Pensacola Jury Returns $480 Million Verdict in Plane Crash”, AP/TBO.com, Aug. 16; Molly McMillin, “Jury says Cessna is at fault in crash”, Wichita Eagle, Aug. 17; Shannon P. Duffy, “Florida Jury Sets $480 Million Verdict in Crash of Defective Plane”, The Legal Intelligencer, Aug. 17).

August 20-21 — Welcome LinkyDinky, FluffyBunny visitors. The popular best-of-the-web service LinkyDinky gives us a nod, describing Overlawyered.com as a site that “chronicles the sad (and scary) state of affairs due to our litigious attitudes, including bizarre examples of greed overcoming logic” (Aug. 15). We’ve also newly won mention on FluffyBunny.com, which says of us: “Sites like this are always a good read when you’re tired of the dozen shark stories, recaps of Chandra Levy timelines and discussions of the obvious” (first Aug. 16 item). LinkyDinky, FluffyBunny — could a pattern be developing here? Also: Australia’s Blackstump (Aug. 8) and HalluciNETting; Pop-o-ganda.com (“control- trademark – delete”), RidersForJustice.com (“links of interest to bikers”/”Freedom Fighter” section), Daily Frank weblog (July 26), Teri O’Brien (“speaker, author, motivator”), Laipple family of Tulsa, Okla., GentleWolf.com.

August 20-21 — Updates. More new developments in familiar stories:

* By a 9-5 vote, the Fifth Circuit has paved the way for a new trial for Texas death row inmate Calvin Burdine on the grounds that his lawyer was asleep during parts of his trial. The dissenting judges argued that Burdine’s guilt was clear from his confession and other evidence and that his lawyer’s alleged propensity to snooze off made no difference in the case’s outcome. The dissent “also noted that Mr. Burdine waited 11 years before raising the ‘sleeping lawyer’ claim and even praised [his lawyer’s] performance after the trial.” (see Feb. 12) (Diane Jennings & Ed Timms, “Court sides with inmate in sleeping-lawyer case”, Dallas Morning News, Aug. 14).

* In California, a state panel has ordered Judge Patrick Couwenberg off the bench for lying extensively about his background during the process that led to his appointment, despite his lawyer’s plea that Couwenberg “is a victim of a mental condition called ‘pseudologia fantastica’ for which he is undergoing treatment” and which causes him to fib in a compulsive way (see June 7). (Erica Werner, “Los Angeles Superior Court judge removed from bench for lying”, Sacramento Bee, Aug. 16; Sonia Giordani, “L.A. Judge Removed From Bench for Lies About Past”, The Recorder, Aug. 17).

* “A federal judge has rejected a proposed settlement of an antitrust suit against the National Football League and its member teams over the pricing structure of the ‘Sunday Ticket’ on satellite television after finding that consumers weren’t getting enough money and that the plaintiffs’ lawyers were getting too much. … [The judge said] courts have a duty to reject such settlements so that plaintiffs’ lawyers will be discouraged in the future from bringing weak cases.” (see June 5). (Shannon P. Duffy, “Judge Rejects NFL Antitrust Settlement That Pays Lawyers Too Much, Consumers Too Little”, The Legal Intelligencer, Aug. 20).

* In the eight-year-long saga that has pitted Marilyn Bartlett’s demands for handicap accommodation against the resistance of the New York State board of bar examiners, federal judge Sonia Sotomayor has ruled that the board must allow Bartlett four days, rather than two, to complete the bar exam because of her dyslexia and learning disability (see our editor’s column in Reason, Feb. 1999) (Mark Hamblett, “Learning-Disabled Woman Wins Added Time for New York Bar Exam”, New York Law Journal, Aug. 17; Daniel Wise, “Review of Dyslexic’s Bar Exam Ordered by 2nd Circuit”, New York Law Journal, Aug. 31, 2000).

August 17-19 — Contrarian view on PBR. “The managed care industry is not complaining that loudly about the latest legislation.” (George M. Kraw, “The Patients’ Bill of Rights” (commentary), The Recorder, Aug. 10). Also: Philip K. Howard, “A Cure for the Patient’s Bill of Rights,” AEI-Brookings Joint Center for Regulatory Studies Policy Matters #01-18 June; Karlyn H. Bowman, “Public Favors Patients’ Bill of Rights, but It’s Not a Top Priority,” Roll Call, June 28.

August 17-19 — “The arithmetic of arsenic”. U. of Chicago law prof Cass Sunstein, a frequent contributor to the New Republic and mentioned as a possible Supreme Court pick in a future Democratic administration, examines the role of cost-benefit analysis in the recent EPA arsenic controversy, and concludes that reasonable assumptions could have tipped the decision either way: there is “no obvious, correct decision for government agencies to make”. (AEI/Brookings Joint Center for Regulatory Studies, Working Paper 01-10, Aug. — abstract/full paper (PDF) (see also Apr. 18))

August 17-19 — From the evergreen file: humiliation for dollars. How much embarrassment would you be willing to put up with on the witness stand just to nab a few thousand dollars more in damages after a fender-bender in which “not even a taillight was broken”? As much as this Connecticut couple? (Colleen Van Tassell, “Good Thing It Wasn’t A Tow Job”, New Haven Advocate, March 11, 1999).

August 16 — Bias suits can tap personal assets of innocent higher-ups. “Victims of housing discrimination have a direct claim on the personal assets of business owners and officers whose employees were at fault and need not go through the usual hurdles to pierce the corporate veil, the 9th U.S. Circuit Court of Appeals ruled on July 31.” The court ruled that a mixed-race couple and homebuilder could file suit against David Meyer, the founder of Triad Realty in Twenty-Nine Palms, Calif., over the discriminatory failure of one of the realty firm’s agents to present the couple’s bid on a house, and that Meyer’s personal assets could be proceeded against if he were the owner or proprietor whether or not it could be shown that he knew anything about the discrimination. (Gary Young, “Realtor Liable for Agent Bias, 9th Circuit Rules”, National Law Journal, Aug. 14).

August 16 — “Deputies Sue Diabetic Driver They Beat After Traffic Stop”. Maryland: “Two Frederick County sheriff’s deputies are suing a diabetic man they beat after a traffic stop, contending his complaints about the incident hurt their careers. Eric J. Winer and Jeffrey A. Norris are seeking more than $68,000 from Frederick T. ‘Tom’ Moore IV of Virginia.” In 1998 officers Winer and Norris chased and blocked Moore’s erratic truck on the assumption he was drunk, then beat and doused him with pepper spray and let their dog into his vehicle when he failed to respond to their commands. It turned out, however, that he had been slipping into a diabetic coma. “Moore spent four days in the hospital for dog bites and other wounds from the beating.” In their lawsuit, “the officers say the inquiries and publicity portrayed them unfairly. They contend Moore’s criticism of them in media interviews was ‘highly offensive,’ considering they had ‘prevented serious harm, injury and/or death’ to Moore.” (WJLA/Yahoo, Aug. 10).

August 16 — How Germans see American injury law. “In Germany, lawyers and the media look upon the American tort system with a mixture of fascination, envy, and horror.” Perhaps surprisingly, the difference between the two systems is not so much in the substantive scope of liability; in fact, German law in some respects is more liberal than American, imposing a “duty to rescue” that American courts have rejected, for example. Instead, the differences have more to do with damages: ours are both far higher and far more unpredictable. “It is well documented that the scale of damages resulting from successful tort litigation in Germany is at least one order of magnitude lower than in the US. Thus, where a broken leg in a car accident in New York City might produce a jury award of $300,000, in Berlin it would produce an award of around $30,000.” At the same time, “in comparison with the German tort system the American system is wildly more unpredictable at every level”: many cases result in low compensation or none even though they seem as deserving as the jackpot cases.

“The Germans find the variation in our damages awards totally unacceptable. … [They feel] we should give the same amount to people for the same kind of injury. The Germans enforce a semblance of order with respect to pain and suffering damages by collecting together all the damage awards produced in every trial court in Germany in a given year. This book, called the Tabellen, is published and used by judges and lawyers to estimate what a damage award in a new case should be.” The American system is “actively opposed” to any such approach (more on “scheduled compensation” abroad: Aug. 10). (Anthony J. Sebok (professor, Brooklyn Law School), “How Germany Views U.S. Tort Law”, FindLaw.com, July 23) (via Arts & Letters Daily).

August 16 — New daily traffic record on Overlawyered.com. Upwards of 11,700 pages served on Tuesday, helped along by that excellent John Leo column and by our first announcement mailing since we moved the list to Topica (though we bunglingly forgot to include in it a link to this site’s front page, an omission we’ll rectify in the future). Thanks for your support!

August 15 — John Leo on Overlawyered.com. The columnist pulls together a fresh batch of “news from the annals of zero tolerance and the continuing campaign to make the culture ever more deranged”. He gives generous credit to the website you are perusing at this very moment, which “reports brightly on the amazing excesses of the litigious society” (“It’s a mad, mad world”, U.S. News/TownHall.com, Aug. 14). Some recent zero-tolerance cases he describes, which hadn’t made it onto this site yet: “A New Jersey student made a baseball bat in shop class, then was expelled for refusing to hand it over to a teacher as a dangerous weapon. A National Merit scholar in Fort Myers, Fla., missed her graduation ceremony and was sent to jail after a kitchen knife was found on the floor of her car. She said the knife had fallen there when she moved some possessions over the weekend. At a Halifax, Nova Scotia, school, a ban against throwing snowballs also prohibited all arm motions that can be interpreted as possible attempts to throw something at anyone.”

August 15 — Navegar not nailed. Pundit/law prof Erwin Chemerinsky was sure that Navegar’s sued-over TEC-DC9 weapon, though it sold by the hundreds of thousands, had no legitimate uses whatsoever. Notes Reason Online‘s Jacob Sullum: “it was galling how readily anti-gun activists and politicians leaped from the premise that thugs liked a given gun to the conclusion that no one else did”. (“The Evil Gun”, Aug. 14; see also “California Dreamin'”, WSJ/OpinionJournal.com, Aug. 10; “Gun makers’ liability (editorial), Las Vegas Review-Journal, Aug. 7). And given voter trends in last November’s election, many national Democrats are racing to distance themselves from the agenda of the litigate-and-confiscate antigun groups. “More than any other issue, some analysts say, unease about gun control helped defeat presidential candidate Al Gore in several traditionally Democratic Southern and border states — any one of which would have been enough to put him in the White House.” (Susan Page, “Democrats back off on firearms”, USA Today, Aug. 14). Similarly: James Dao, “New Gun Control Politics: A Whimper, Not a Bang”, New York Times, March 11; Juliet Eilperin and Thomas B. Edsall, “For Democrats, Gun Issue Losing Its Fire”, Washington Post, Oct. 20, 2000.

August 15 — “Girl from Ipanema is sued over the song she inspired”. “It was as a sultry 18-year-old that Heloise Pinheiro inspired Brazil’s best-known tune. Now aged 57, she is being threatened with legal action by the songwriters’ heirs, who claim that her boutique, ‘The Girl From Ipanema’, infringes their copyright.” (Philip Delves Broughton, Daily Telegraph (U.K.), Aug. 13; “The churls from Ipanema” (editorial), Aug. 13).

August 13-14 — Why she’s quitting law practice. Karen Selick, a libertarian attorney who writes a column for Canadian Lawyer and practices in a small community in Ontario, is getting out of the business and explains why on her website. To begin with, there’s the aggravation and emotional wear and tear of matrimonial law, the bulk of her practice. “Then there’s the state of the law itself. When I started in this field in 1985, there was at least a modicum of cohesiveness to the case law. That has now vanished completely. Not only is the law different from what it was in 1985 — it’s different from what it was last month or last week. Once upon a time, you could give your clients a pretty good idea of the outcome they might expect if they went to court. Now all you can tell them is that every case is a crapshoot.” And then there’s the law’s tilt against husbands and fathers, “to the point where representing women in a manner that protects you from negligence suits requires a lawyer to make claims that I consider to be unethical, while representing men means you are perpetually on the losing side.” (“A Twist on Gresham — Bad Laws Drive Out Good Lawyers”, undated, late July).

August 13-14 — “Shark-bite victim turns to Cochran”. By reader acclaim: “The family of a highly publicized shark-attack victim mauled while swimming at a Bahamian resort has consulted a famous legal barracuda to represent them in a possible suit against the hotel: Johnnie Cochran.” The family of 36-year-old Krishna Thompson “has accused lifeguards at the Our Lucaya Beach & Golf Resort on Grand Bahama of lingering on the beach during the attack. … The resort has insisted that lifeguards acted swiftly in pulling Thompson out of the water. The resort’s statements were backed by a Bahamian doctor who interrupted his morning stroll to help.” (Tere Figueras, Miami Herald, Aug. 10).

August 13-14 — “We often turn irresponsibility into legal actions against others”. Two events in the Tampa Bay area caught the eye of St. Petersburg Times columnist Robyn Blumner: the criticism that greeted the city of St. Petersburg for declining to cancel a free fireworks display in the face of an approaching lightning storm, even though it might tempt residents to go outside; and “a sexual harassment lawsuit filed by Nicole Ferry against the University of South Florida, in which the state of Florida agreed to give her $25,000″ for having subjected the student to a sexually explicit photograph (warned of in advance) as part of her university art class. The two news reports suggest to Blumner that our sense of personal responsibility and resilience is slipping fast, and remind her of a certain website which (among other functions) “documents the way predatory lawyers help people turn their personal failings into lawsuit fodder.” Which cases on this site does Blumner “find most appalling?” Read the column and find out. (July 15).

August 13-14 — Tobacco: judge cuts Boeken award. In Los Angeles, Superior Court Judge Charles McCoy has upheld $105 million worth of a jury’s $3 billion award to smoker Richard Boeken against Philip Morris (more). The company has vowed to appeal, citing among other reasons the judge’s refusal to admit evidence that would have shed light on Boeken’s credibility, in particular his record of criminal convictions on fraud and other charges. (Anna Gorman, “Huge Award to Smoker Cut by Judge”, L.A. Times, Aug. 10; Cadonna M. Peyton, AP/Daily Southtown, Aug. 10). On the evidence exclusion issue, see “Tobacco Giant Cites Plaintiff’s Credibility; Courts: Philip Morris Says Smoker’s Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion,” Los Angeles Times, July 29, summarized in Columbia Law School Faculty In the News, Summer 2001 (scroll to “Prof. Richard Uviller”). See also Paul Campos, “Outrageous verdicts are genteel theft”, Rocky Mountain News (Denver)/Jewish World Review, June 9).

August 13-14 — Tobacco: Boston Globe on state-settlement aftermath. Meanwhile, a report from the National Conference of State Legislatures confirms what is already well known, namely that states are spending only a small fraction of their $246-billion tobacco windfall on programs to hector smokers into quitting, propagandize youngsters against the habit, and vilify tobacco-company execs in mass-media ads. The Boston Globe‘s coverage strings together many quotes from anti-tobacco activists flaying the settlement as not tough enough, but seems unable to find anyone willing to blast the settlement from the other direction, as an extortive deal premised on bad law, nor anyone who will point out the cozy nature of the alliance between many AGs and trial lawyers with whose firms they often had personal and campaign-finance links. The story also misses the reason why tobacco companies have found it so easy to recover the settlement’s costs in higher prices, namely the settlement’s provisions cartelizing the industry and hobbling new entrants (see July 29, 1999) — but then, none of the groups quoted in the article (anti-tobacco activists, state governments, trial lawyers, tobacco companies themselves) have any interest in shining light in that particular dark corner. Incredibly, even Mississippi AG Michael Moore and his good friend trial lawyer Dickie Scruggs, who led the whole crusade, now have the nerve to criticize the outcome as “perverse”, ineffective and so on. Is Scruggs saying he was outnegotiated or that he didn’t get his clients that great a deal, and if so is he going to give back some of his estimated billion in fees? (Thomas Farragher, “Little of $246b deal fights tobacco”, Boston Globe, Aug. 9). The same paper reports on the ugly feud over what Massachusetts owes to the law firm Brown Rudnick, which represented the state in the settlement and now says $178 million in fees aren’t enough. “‘If you divide what we’re getting, which is $178 million over 25 years, and then divide that by [about 50] partners, you’ll see that it’s certainly significant. But on an annual basis, it’s not something that anybody can retire on,’ said M. Frederick Pritzker, chairman of Brown Rudnick’s litigation department.” (Thomas Farragher, “State, lawyers fight over settlement fees”, Boston Globe, Aug. 10). Daynard-cite dishonor roll: both the Globe‘s Aug. 9 entry and the L.A. Times‘s Aug. 10 (see above) quote Northeastern U.’s Richard Daynard on tobacco suits without mentioning his interest as a contingent-fee claimant to state settlement booty (the Globe‘s Aug. 10 article does mention this in passing, however).


August 31-September 2 — Study: DPT and MMR vaccines not linked to brain injury. Some children experience fever and febrile (fever-related) seizures after being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles, mumps, and rubella (MMR) vaccine and it has long been feared, to quote the New York Times‘s summary of a massive new study, “that those rare fever-related seizures may be linked to later autism and developmental problems. The fears are unfounded, the [new] study concluded.” The study, which appears in the New England Journal of Medicine, was of medical data for 639,000 children and was conducted with the assistance of the Centers for Disease Control and Prevention. “There are significantly elevated risks of febrile seizures after receipt of DTP vaccine or MMR vaccine, but these risks do not appear to be associated with any long-term, adverse consequences,” concludes the abstract.

All of which comes too late to prevent the legal devastation of much of the childhood vaccine industry at the hands of trial lawyers, an episode that climaxed in 1986 when Congress stepped in and established a no-fault childhood vaccine compensation program (see Nov. 13, 2000). According to the Washington Post, one Milwaukee lawyer alone “has won million-dollar judgments or settlements in nearly a dozen DPT cases.” “The jury hated the drug companies so bad when we got through with them that they would have awarded money no matter what,” boasts the lawyer, Victor Harding. (Arthur Allen, “Exposed: Shots in the Dark”, Washington Post Magazine, Aug. 30, 1998). If the new study is correct, however, the vaccines may not have been responsible for the occurrences of permanent developmental disability that so often led to high awards. Worldwide alarm over the vaccines’ feared side effects, stoked in no small part by the litigation, contributed to a decline in immunization rates that resulted in a resurgence of the diseases in several countries, killing many children. (DURABLE LINK)

SOURCES: William E. Barlow, Robert L. Davis et al, “The Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps, and Rubella Vaccine”, New England Journal of Medicine, Aug. 30 (abstract); Philip J. Hilts, “Study Clears Two Vaccines of Any Long-Lasting Harm”, New York Times, Aug. 30 (reg); and dueling headlines: Daniel Q. Haney, “Two Vaccines Linked to Seizures”, AP/Yahoo, Aug. 29, and Gene Emery, “Researchers: Vaccines Carry Little Risk of Seizures”, Reuters/Yahoo, Aug. 29. Adds AP: “In April, an Institute of Medicine committee issued a report saying there is no evidence that MMR causes autism, as some have speculated.” (more)

August 31-September 2 — Radio daze. The nation’s largest radio chain, Clear Channel, is known for hardball lawyering — as when it sued Z104, a rival station in Washington, D.C., for having the temerity to hold a listener contest in which the prize was tickets to an outdoor concert in Los Angeles staged by a Clear Channel subsidiary. Violated their client’s “service mark”, the lawyers said (Frank Ahrens, “Making Radio Waves”, Washington Post, Aug. 22).

August 31-September 2 — “Man Pleads Guilty to Use of Three Stooges’ Firm in Fraud Scheme”. In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and other institutions out of $1 million in a scheme in which he “used the name of the slapstick comedy trio’s fictional law firm Dewey, Cheatham and Howe to obtain cashier’s checks” (more on that illustrious firm: Google search). “It did seem just a bit unusual for a company name,” said a bank officer who alerted the FBI (AP/FoxNews, Aug. 27).

August 29-30 — Washington Post on class action reform. “No portion of the American civil justice system is more of a mess than the world of class actions. None is in more desperate need of policymakers’ attention.” Excellent Post editorial which should help fuel reform efforts (“Actions Without Class” (editorial), Washington Post, Aug. 27).

August 29-30 — Firefighter’s demand: back pay for time facing criminal rap. David Griffith, a Hispanic firefighter in Des Moines, Iowa, “has sued city officials, alleging racial bias in their refusal to give him back pay for a leave of absence after he was arrested.” Griffith went on a six-month unpaid leave after he “was arrested in December 1999 on three counts of third-degree sexual abuse involving a then-22-year-old woman. The charges were dropped in May 2000 after Griffith pleaded guilty of assault with intent to inflict injury and harassment. … In his lawsuit, Griffith said he ‘was treated less favorably than non-Hispanic employees and believed such treatment was based on race’. … City attorney Carol Moser said Des Moines officials never forced Griffith to take a leave of absence but simply granted his request.” (Jeff Eckhoff, “D.M. firefighter sues for back pay after arrest, alleges discrimination”, Des Moines Register, Aug. 24).

August 29-30 — “Trolling for Dollars”. Lawyers are turning aggressive patent enforcement into a billion-dollar business, and companies on the receiving end aren’t happy about it (Brenda Sandburg, “Trolling for Dollars”, The Recorder, July 31).

August 29-30 — Negligent to lack employee spouse-abuse policy? The husband of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her, then killed himself. Now her lawyer is suing the retailer, arguing (among other theories) that it should have had a policy to protect its employees from spousal abuse. (Shannon P. Duffy, “Employee Sues Wal-Mart Because Store Didn’t Protect Her From Husband’s Attack”, The Legal Intelligencer, Aug. 24).

August 29-30 — Updates. Further developments in perhaps-familiar cases:

* Extremist animal-rights group PETA, which not long ago cybersquatted on the domain ringlingbrothers.com where it posted anti-circus material, has prevailed in its legal battle (see July 3, 2000) to wrest the domain peta.org away from a critic which had used it for his contrarian “People Eating Tasty Animals” site (more/yet more). (Declan McCullagh, “Ethical Treatment of PETA Domain”, Wired News, Aug. 25).

* The Big Five Texas tobacco lawyers have enjoyed an almost perfect record of success so far in dodging investigation of their $3.3 billion-fee deal to represent the Lone Star State in the national tobacco litigation, but Texas Attorney General John Cornyn should not be counted out yet (see Sept. 1, 2000, May 22, 2000, June 21, 2001): last month he scored an advance for his long-stymied ethics probe when the Fifth Circuit ruled he should be given a chance to pursue state court proceedings aimed at putting the Five under oath about the lucrative arrangements (Brenda Sapino Jeffreys, “Texas Attorney General May Depose Tobacco Lawyers in State Court”, Texas Lawyer, July 30).

* Conceding that one of its execs did indeed use a disrespectful nickname for its Denver stadium (“the Diaphragm”, referring to its shape), the Invesco financial group agreed to drop its threatened defamation lawsuit (see July 5) against the Denver Post for reporting the remark (“Invesco won’t sue Post”, Denver Post, July 6).

August 27-28 — Clinical trials besieged. Since the Jesse Gelsinger case, where survivors of an 18-year-old who died in a gene-therapy experiment brought a successful lawsuit against the University of Pennsylvania, lawsuits have been burgeoning against universities, private health-research foundations and other sponsors of clinical trials and experimental medical treatments; one recent high-profile case targets the Fred Hutchinson Cancer Research Center in Seattle. The “suits have sent shudders through the biomedical community. … Some experts in the biomedical field believe the litigation will have a chilling effect on research that benefits humankind through scientific advancement. They also worry that volunteers will dry up.” A lawyer who specializes in the new suits makes a practice of suing not only researchers and deep-pocket institutions but also “bioethicists as well as members of institutional review boards, the volunteers charged with reviewing and approving clinical trials.” (on bioethicists, see also Oct. 6, 2000) (Vida Fousbister, “Lawsuits over clinical trials have doctors wary, but not quitting research yet”, American Medical News, April 16; Maureen Milford, “Lawsuits Attack Medical Trials”, National Law Journal, Aug. 21; Kate Fodor, “Insurance Companies Get Stricter on Clinical Trials “, Reuters/CancerPage.com, June 27; Christy Oglesby, “Volunteers sustain clinical trials”, WebMD/CNN, July 23).

August 27-28 — Recommended new weblog. Launched a few weeks ago, Instapundit by U. of Tennessee law prof Glenn Reynolds has already made it onto our must-read list with frequently updated commentary on such topics as gun laws, patients’ bill of rights legislation, abusive prosecution, the tobacco settlement, and stem-cell research. Also new among our “dailies” links (left column of front page) are Joshua Micah Marshall’s and Marshall Wittmann’s weblogs, both oriented toward political matters.

August 27-28 — “Jailed under a bad law”. “The arrest by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date — one that shows the need to revisit the rules Congress created to prevent the theft of intellectual property using electronic media,” contends the Washington Post in an editorial. Sklyarov wrote a program, legal in Russia, that enables users to defeat the copy-protection on Adobe’s eBook Reader system; the DMCA bans such programs even though they have uses unrelated to unlawful copying, and it does not require the government to prove in prosecution that facilitating piracy was part of a defendant’s intent. (Washington Post, Aug. 21; Julie Hilden, “The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov”, FindLaw, Aug. 10; Declan McCullagh, “Hacker Arrest Stirs Protest”, Wired News, July 19; Glenn Reynolds (see also other items in his weblog). More ammunition for anti-DMCA sentiment: Amita Guha, “Fingered by the movie cops”, Salon, Aug. 23.

August 27-28 — Urban legend alert: six “irresponsibility” lawsuits. Much in our inbox recently: a fast-circulating email that lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website? (DURABLE LINK)

NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.

August 27-28 — “Incense link to cancer”. Just when you thought it was safe to go back to the Sixties (BBC, Aug. 2). But not to worry, since it seems everything else in the world has also been linked to the dread disease: Brad Evenson, “Everything causes cancer — so relax”, National Post (Canada), Aug. 4.

August 24-26 — “Delta passenger wins $1.25 mln for landing trauma”. Outwardly uninjured after a terrifying emergency landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana jury that the episode had caused her to suffer post-traumatic stress syndrome and an aggravation of her pre-existing depression. The judge ruled that “her terror during the landing led to physical changes within the brain that could be defined as injury”. (Reuters/Yahoo, Aug. 23; PPrune thread) (more on white-knuckle lotto: Oct. 19, 2000, Oct. 8, 1999).

August 24-26 — “Cessna pilots association does some research…”Last week’s decision by a Florida jury to ding Cessna to the tune of $480 million for allegedly faulty chair railings in a Cessna 185 has raised more than a few eyebrows,” reports AvWeb. “Cessna’s lawyers blamed the crash on pilot error — as did the NTSB final report — but the plaintiffs’ attorneys argued that the seat-latching mechanism was defective, and the seat slipped back suddenly as the pilot was trying to land. A plaintiff’s attorney was quoted in the Wall Street Journal last week as saying that Cessna ‘knew the seats could slip, but they never told the pilots that.'” On the contrary, says the Cessna pilots association: the company issued a service advisory in 1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered all owners a free secondary seat-stop kit “that would provide positive retention of the seat in the event that the primary system failed. Owners had to pay for about three hours’ labor at a Cessna Service Center to install the free kit.” In 1987, the FAA issued its own Airworthiness Directive “with detailed instructions for inspecting the seat-latching system for wear, pin engagement and cracks”. (AvWeb, undated). More of what general aviation folks have to say about that jury award (much of it highly uncomplimentary): AvWeb reader mail; Pprune threads #1, #2.

August 24-26 — Can I supersize that class action for you? The FBI has charged eight persons in the conspiracy, allegedly dating back to 1995, to steal the winning pieces in McDonald’s promotional Monopoly game. Although the fast-food chain was among the victims of the scheme and has already promised a make-it-up sweepstakes promo, can we doubt that the class action lawyers will soon descend? “And never mind those gloomy folk who say the lawyers will win millions while the rest of us each gets a coupon for a packet of fries.” (“They Knew It” (editorial), Washington Post, Aug. 23); Yahoo Full Coverage).

August 24-26 — The document-shredding facility at Pooh Corner. “A family-owned company that receives royalties from the sale of Pooh merchandise says that Walt Disney Co. has cheated it out of $US 35 million … by failing to report at least $US 3 billion in Pooh-related revenue since 1983. … the case has been entangled in Los Angeles Superior Court for a decade …. Last year a Superior Court judge sanctioned Disney for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems'”. (“Claimants call Pooh a bear of very little gain”, L.A. Times/Sydney Morning Herald, Aug. 17). Update Mar. 30, 2004: court dismisses suit after finding misconduct on plaintiffs’ side. (DURABLE LINK)

August 24-26 — More traffic records at Overlawyered.com. What summer slowdown? Last week set a new record for pages served, and so did last month … thanks for your support!

August 22-23 — Meet the “wrongful-birth” bar.BIRTH DEFECTS — When did your doctor know? … You may be entitled to monetary damages,” according to an advertisement by the law firm of Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J. The theory behind “wrongful-life” and “wrongful-birth” suits? “If the health team had done its job, the [parents] would have known of the defect — and could have chosen not to have the baby. … Lawyers file the cases if — and only if — the parents are prepared to testify that they would have aborted the pregnancy.” Many disabled persons, joined by others, are not exactly happy about the premise that it might be better for some of the physically imperfect among us never to have been born. Attorneys believe such cases “will become more common as prenatal sonograms, blood tests, and genetic counseling become routine, and the public learns of the potential for large financial awards when genetically defective babies are born.” “Any child born with a birth defect has a potential wrongful birth or wrongful life claim,” says one optimistic lawyer. (Lindy Washburn, “Families of disabled kids seek peace of mind in court”, Bergen Record, Aug. 19; “N.J. has taken lead in allowing parents, children to sue”, Aug. 19). Note the bizarre headline on the first of the two stories: just how likely is it that “peace of mind” will be found by having the parents swear out a permanent public record to the effect that they wish their child had never been born? (more on wrongful birth/life: Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000). (DURABLE LINK)

August 22-23 — Pricing out the human species. According to Idaho governor Dirk Kempthorne, the federal government’s proposal to reintroduce grizzly bears into Idaho “assumed injury or death to people and even calculated the value of human life. A human killed by a grizzly bear in Idaho would cost the federal Treasury between $4 million and $10 million, and the plan even amortized the annual costs at $80,000-$200,000. As far as we know, this is the first time that death or injury to humans has been factored into a program proposed by the federal government under the [Endangered Species Act].” (“Risk to humans too great”, USA Today, Aug. 17). And did reluctance to draw water from a river containing threatened fish contribute to the deaths of four firefighters during a big wildfire in Okanogan County, Wash. last month? (Chris Solomon, “Why Thirty Mile Fire raged without water”, Seattle Times, Aug. 1; “Endangered Fish Policy May Have Cost Firefighters’ Lives”, FoxNews.com, Aug. 2).

MORE: “NWFP [Northwest Forest Plan] standards and guidelines and other agency policies such as PACFISH set streamside buffers with virtually zero risk to fish species, regardless of the effects of large buffers to other management objectives. Managing risks requires value-based decisions. We understand that the zero-risk [to fish — ed.] approach is largely a result of lawsuits….” (James E. Brown of the Oregon Department of Forestry at a House Agriculture Committee oversight hearing, June 21, 1999 — scroll to near end of document). (DURABLE LINK)

August 22-23 — Slavery reparations suits: on your mark, get set… “By year-end, an all-star team of lawyers calling themselves the ‘Reparations Coordinating Committee’ plans to file a suit seeking reparations for slavery. … Multiple cases in multiple forums are likely. The defendants will come from both the public and private sectors”; among businesses likely to be named as defendants is J.P. Morgan Chase. (Paul Braverman, “Slavery Strategy: Inside The Reparations Suit”, American Lawyer, July 6). Harvard Law prof Charles Ogletree said “‘an amazing series of possible actions’ is slated for early next year.” (Emily Newburger, “Breaking the Chain”, Harvard Law Bulletin, Summer). Some of the reasons it’ll be a terrible idea: John McWhorter, “Against reparations”, The New Republic, July 23 (more on reparations: July 6-8, April 17, Dec. 22-25, 2000 and links from there). (DURABLE LINK)

August 22-23 — “New York State’s Gun Suit Must Be Dismissed”. No, bad lawsuits don’t always prosper: “The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed,” Justice Louis B. York has ruled in Manhattan. New York was the only state to have joined 32 municipalities in suits against the gun industry that aim to extract money from gunmakers as well as arm-twist them into adopting various gun controls that legislatures have declined to enact. New York AG Eliot Spitzer is said to be “dismayed” by the decision. Good! (Daniel Wise, New York Law Journal, Aug. 15).

January 2001 archives


January 10 — Dangers of tax farming. Attorney Nicholas Panarella, billed as the “tax commando”, was hailed as a savior of big-city finances in the early 1990s: cities like Philadelphia would let him collect their delinquent taxes, he would keep a contingency fee for his “Municipal Tax Bureau” firm of between 15 and 33 percent, and everyone (except the people he dunned) would be happy. He also made himself into a huge source of donations and consulting fees for public officials, Democratic and Republican alike, and eventually sold his firm to municipal bond insurer MBIA. But last month the Philadelphia Inquirer reported that Panarella was expected to plead guilty to a felony charge of aiding and abetting a scheme to defraud the constituents of former Pennsylvania Senate Majority Leader F. Joseph Loeper, who resigned his seat after pleading guilty in October to obstructing a tax investigation. (Ken Dilanian, “Lawyer will admit playing felony role in Loeper case”, Philadelphia Inquirer, Dec. 13; U.S. Attorney’s office, E.D. Pa., news release, Oct. 24).

One of the reasons Panarella’s work proved controversial, per AP, was that (in good contingency-fee fashion) he tended to take extremely aggressive positions as to who owed his clients money and how much: “The company sent out 78,500 letters on behalf of New Jersey in 1995; at least half of the recipients owed the state no taxes.” Jurisdictions that signed up for his services included Detroit, Kansas City, Pittsburgh, Oklahoma and at least 35 others. (David Kinney, “Computers and can-do creativity: The new face of tax enforcement”, AP/Detroit News, Sept. 1, 1997; complaint by taxpayer Samuel Lonky raising the due process implications of letting a law enforcement official’s income depend on the severity of his enforcement efforts). Didn’t we learn from the Roman Empire about the dangers of contingency-fee tax collection, otherwise known as tax farming? (more on bounty hunting) (& letter to the editor, Jan. 16).

January 10 — Do as the Douglases do. Western Australia “couples are signing legally binding pre-nuptial agreements with ‘no-cheating’ clauses. Family lawyers refer to it as the Michael Douglas clause, after the film star’s pre-nuptial agreement, which promised wife Catherine Zeta Jones millions if he cheated on her.” Last month a newly passed law made pre-nuptial agreements legally enforceable in Australia. (Bruce Butler, “No-cheating clauses in pre-nuptials”, Sunday Times (Australia), Dec. 31; “Zeta-Jones ‘backs down over pre-nuptial terms'”, The Age (Melbourne), Oct. 9).

January 9 — Drive 60K miles, collect $273K. A jury has ordered DaimlerChrysler and one of its dealerships to pay $273,000 for not adequately bringing to a customer’s attention that the used car she was buying had had prior mechanical problems. “‘I am so happy. Now people will know that not all car dealers are honest,’ said Angela L. Pearn, 30, of Akron.” The dealership said Pearn had signed a document disclosing the prior repairs, but she testified that she just breezed through the stack of papers without paying attention to what she was signing, and the dealership had apparently held onto the lemon-disclosure form she had signed without providing her with a copy. Pearn’s attorney pulled the German-owned automaker into the case on the theory that it should have supervised its dealers more closely; he unsuccessfully asked for $50 million to teach the company a lesson. The car never actually broke down during its 60,000 miles under her ownership, but Pearn said there were times when she thought the brakes weren’t working properly. (Christopher Jensen, “Jury lets car buyer squeeze $273,000 from a lemon”, Cleveland Plain Dealer, Dec. 21).

January 9 — Dot-bomb blame. Following the NASDAQ rout of the past year, lawyers representing individual investors are going to be casting about for ways to shift their clients’ losses onto someone whose name ends with an Inc. Some may pursue claims against Wall Street firms whose analysts touted tech stocks, pointing out the conflict of interest to which many such firms are subject, when they receive investment banking and other fees from the same companies whose stock they recommend. (Gretchen Morgenson, “How Did So Many Get It So Wrong?”, New York Times, Dec. 31 (reg); “Sue to reverse your loss?”, CNNfn video, Jan. 5).

January 8 — Sen. Kennedy flies the trial-lawyer skies. Sen. Edward Kennedy (D-Mass.) has accepted private-jet rides from, among others, “a powerful Texas trial lawyer with a huge stake in bills limiting liability lawsuits. … Under a well-known campaign law loophole, Kennedy was able to use the luxury jets for a fraction of their actual cost … During a western fund-raising swing last year, Kennedy hitched a ride aboard a jet provided by prominent trial lawyer John Eddie Williams Jr. (Sept. 1, May 22, Oct. 12, 2000), whose successful Houston firm has been a leader in the high-stakes tort reform fight on Capitol Hill. … Kennedy in recent years used jets from Ness Motley Loadholt Richardson and Poole (Nov. 1, 1999, Oct. 6, 2000, July 17, 2000) whose partners have been active in the liability lawsuit battle, reimbursing the firm $4,856.” (Andrew Miga, “Ted K flies on wings of high rollers”, Boston Herald, Dec. 26).

January 8 — Postrel online. Reason editor-at-large Virginia Postrel, whose commentaries are often cited in this space, has launched a weblog commentary at her “Dynamist” site. Among recent items she’s added are links that help explain why it’s too facile simply to blame “deregulation” for California’s electricity crisis (USA Today, “Prices spike as Calif. bungles deregulation”, Jan. 3; Michael Lynch, “California Scheming”, Reason Online, Jan. 4). Postrel follows a number of well-known commentators who have who have embraced the weblog format, including Mickey Kaus and Andrew Sullivan.

January 5-7 — A judge speaks his mind. Following a one-car crash on the service road of the Grand Central Parkway in New York City’s borough of Queens, an injured passenger in the car sued Shu Cheuk Ng, a homeowner whose property abutted the parkway, arguing that leaves from trees on her property fell onto the roadway and that she had a duty to clean away those leaves before they became wet and developed into an accident hazard. Dismissing the case on a summary judgment motion as “wholly without merit”, Justice Arthur Lonschein described as “astonishing” the plaintiff’s contention that “liability may be placed on [Ms. Ng] on the grounds that she was observed and videotaped, one year after the accident, cleaning up leaves from the roadway in front of her property. ” The judge began his opinion as follows: “The nature of the plaintiff’s claim and the facts of the accident giving rise to the claim rests on the theory held by some cognoscenti at the bar (a theory not entirely without some foundation) that if an injury is severe enough, a case of liability can be made with creative lawyering to fit the facts of the accident whereby a generous jury will be given the opportunity to award substantial damages or that some insurance company for some unfathomable reason may offer to settle the case. The theory also rests on the proposition that the ‘unfortunate but unavoidable fact of life in the courts that cases are sometimes decided wrongly by both judges and juries’ and based upon that reality, insurance companies will sometimes settle a worthless liability case in order to avoid the possibility of a large verdict against its insured. (Orion Insurance Co. v. General Electric Co., 129 Misc. 2d 466, aff’d sub nom. US Aviation Underwriters, Inc. v. General Electric, 125 AD 2d 567 ‘for reasons stated by Justice Lonschein at Special Term’ app. dismissed 69 NY 2d 1037, lv. to app. den. 70 NY 2d 612.)” (Celestin v. City of New York, New York Law Journal, Dec. 12).

January 5-7 — “Boy faces jail for slapping girl’s bottom”. “A schoolboy who slapped a girl on the bottom for a joke is facing two years in a juvenile prison for sexual harassment. The 13-year-old girl, a classmate, did not complain but a teacher who saw the incident at Espanola Middle School in northern New Mexico reported it to the police. ” (Simon Davis, Daily Telegraph (London), Jan. 3).

January 5-7 — Ecology and economy. Notwithstanding an insta-campaign by the Sierra Club and some other groups to demonize Interior Secretary-designate Gale Norton as a “property rights advocate” (no! anything but that!) a growing school of thought is exploring the chances for compatibility between property rights and the interests of conservation. “Or as Aldo Leopold, conservationist and author of ‘A Sand County Almanac,’ once wrote: ‘Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest.'” (Brad Knickerbocker, “Natural capitalism”, Christian Science Monitor, Jan. 4; “Environmental balance” (editorial), Jan. 4).

January 4 — Cribbage menace averted. Authorities have busted the cribbage-playing club that met regularly in Anchorage, Alaska’s American Legion hall. It seems they were gambling, which you mustn’t do in an establishment where liquor is served (if you do it at all). (Sheila Toomey, “Cribbage club on the street”, Anchorage Daily News, Dec. 21)

January 4 — “The Rise of Antisocial Law”. America has replaced the Hidden Law of custom, convention and ritualized conflict avoidance with today’s madly excessive legalism, argues Jonathan Rauch of the Brookings Institution in this Bradley Lecture before the American Enterprise Institute. The speech describes this website as “marvelous”. (Jonathan Rauch, “Courting Danger: The Rise of Antisocial Law”, AEI Bradley Lecture Series, Dec. 11; see George Will, “When Laws Replace Common Sense”, Washington Post, Dec. 22)

January 4 — Stressed out in New Hampshire. The state of New Hampshire’s Compensation Appeals Board has ruled that an employee of the state Department of Health and Human Services is entitled to workers’ comp benefits to cover job-related disability “caused by employment-related stress arising from her supervisor’s legitimate criticism of her work performance,” to quote the state’s high court, which upheld the award of the benefits. (Appeal of N.H. DHHS, Compensation Appeals Board No. 97-712, Aug. 23).

January 3 — OK to apologize in California. “Living in California means never having to admit guilt when you say you’re sorry. As of Jan. 1, a new state law will allow residents to apologize after an accident and avoid having their statements used against them in civil court. So-called benevolent gestures of sympathy will be considered simple acts of charity, not admissions of guilt.” In California, as elsewhere, some insurance companies advise their insureds not to say they’re sorry after a road mishap for fear of having the statement interpreted as an admission of guilt. The law is modeled after similar statutes in Massachusetts and Vermont. (“Saying ‘Sorry’ Now OK in California”, APBNews/FindLaw, Dec. 29).

January 3 — Saves her friend’s life, then sues her. Six years ago Kerry-Jo Klingbeil, then 11, pushed her seven-year-old friend Amanda Horne out of the path of a truck in Ontario, sustaining injuries from the truck in doing so; she subsequently received one of Canada’s highest bravery awards. Now she and her family are suing Amanda for $5-million (Canadian), saying she sustained lasting injuries after being “compelled” to rescue her friend. (“Girl sues friend for $5M after saving her life”, Canadian Press/National Post, Dec. 29).

January 3 — Apartment smoking targeted. In the Los Angeles suburb of West Hollywood, “the City Council in November passed an ordinance allowing nonsmoking apartment dwellers to file complaints when tobacco smoke drifts into their windows or doors from a neighbor’s unit. Tenants who refuse city arbitration will face fines and eviction.” (Thomas D. Elias, “Apartment smoking may be banned”, Washington Times, Jan. 2) (via FindLaw Legal Grounds).


January 19-21 — “Wacky warning label” winners. First place in the fourth annual Wacky Warning Label contest sponsored by Michigan Lawsuit Abuse Watch went to “a label on a pair of shin guards for bicyclists: “Shin pads cannot protect any part of the body they do not cover.” Second place? a “label on a toilet at a public sports facility in Ann Arbor, Michigan warning ‘Recycled flush water unsafe for drinking’ … Honorable mention went to a Texan who found a label on an electric wood router made for carpenters which cautions: ‘This product not intended for use as a dental drill.'” (Jan. 17; M-LAW site; Andrea Cecil, “Wacky warnings”, FoxNews.com, Jan. 17).

January 19-21 — Come to America and sue. Lawyers representing survivors of German victims of last summer’s Concorde crash near Paris airport have now sued Air France, Continental Airlines and several other defendants. And where have they filed their suit? Why, in the United States, naturally — which is thousands of miles from the crash site, but where we hand out much bigger tort awards than they do in France. (“Victims’ families file suit in Concorde crash”, CNN, Jan. 9; see Sept. 29).

January 19-21 — Turn off those registers. The Lemelson Foundation, famously hyperactive in patent assertion (see Aug. 28, 1999), has sued 135 national retail chains claiming that its patents have been infringed by their use of bar-code scanning technology. Representing defendants, Kenneth Chiate of Pillsbury, Madison & Sutro says that if the foundation prevails it could get a court to issue an injunction against using the familiar check-out method: “They could put a stop to the whole retail industry in this country… it could be devastating.” (Kirsten Andelman, “Pillsbury Wins Beauty Contest”, The Recorder (San Francisco), Nov. 7).

January 18 — Annals of zero tolerance: gun-shaped medallion.School officials have suspended a third-grade student under the state’s zero-tolerance weapons law after he brought a 1 1/2-inch-long gun-shaped medallion to class. The boy apparently found the piece of jewelry in a snowbank and brought it to Owen Elementary School on Wednesday, school officials said. ‘State law takes precedence and requires us to take action even though it was a toy,’ said Donna Poag, director of elementary education for the Pontiac [Mich.] School District.” (“Third-grader suspended for gun-shaped medallion in school”, AP/CNN, Jan. 13).

January 18 — “Bogus” assault on Norton. Opponents of Interior Secretary-designate Gale Norton (Jan. 15, Jan. 5) have absurdly sought to depict her as pro-Confederacy based on a 1996 speech she gave to the Independence Institute. But as Mickey Kaus points out at Kausfiles.com: “The more inflammatory charges against Norton based on this speech appear to be almost totally bogus …. Norton’s opponents ask ‘Who is “we” in the phrase “we lost too much”‘? But ‘we’ clearly means ‘we Americans who should believe in states’ rights,’ not ‘we Americans who believe in the Confederate cause.’ …You might not find her speech convincing, but only a willful misreading turns it into any sort of secret embrace of the Confederate cause.” (left column, dated Jan. 17).

Meanwhile, the Sierra Club, in what may be another sign of an emerging working relationship between the more extreme environmental groups and activist trial lawyers (see Dec. 7), has made it an explicit part of its case against Norton’s confirmation that while a lawyer in private practice she “worked to dissuade state attorneys general” from turning paint companies (one of which she was representing) into the “next tobacco”. Other public figures who get in the way of this kind of retroactive expropriation through litigation should be duly warned: they, too, may turn up on the Sierra Club’s hit list (“NH Sierra Club opposes Norton confirmation”, AP/FindLaw, Jan. 17). (DURABLE LINK)

January 18 — What they did for lead-plaintiff status? A brief filed by New York’s Sullivan & Cromwell last fall alleged that class-action powerhouse Milberg Weiss Bershad Hynes & Lerach engaged in some fancy footwork in an attempt to gain the lucrative lead counsel position in a huge securities class action against Sullivan’s client, Oxford Health Plans Inc. “According to the brief, Milberg Weiss clients filed ‘misleading’ affidavits to ‘create the appearance that they had suffered substantial losses’ from trading in Oxford stock. In fact, one of Milberg’s two clients reaped a huge profit from his trading, while the other suffered much smaller losses than others vying to become ‘lead plaintiff’ and seize control of the litigation under the Private Securities Litigation Reform Act of 1995, the brief alleges. … Milberg Weiss’ response … contends that Sullivan & Cromwell ‘distorted the facts and ignored the law, all the while peppering their papers with outrageous and unfounded allegations.'” (Karen Donovan, “A Case of Ill-fitting Oxfords?”, National Law Journal, Oct. 3). More on the case: Peter Elkind, “The King of Pain Is Courting New Trouble”, Fortune, Oct. 2; Cameron Stracher, “Attorneys’ Fee-for-All”, New York, Oct. 23 (“S&C is just mad,” claims one lawyer, “because Milberg partners make more money than they do.”); Scott Gottlieb, “Presidency or Health Care Giant, There’s a Lawsuit in There Somewhere”, WebMD, Nov. 17. Update: a federal judge rejected the charges; see Feb. 21-22.

January 17 — “Coming soon to a school near you”. In Washington’s alt-weekly City Paper (Jan. 12-18), “Loose Lips” columnist Jonetta Rose Barras reprints the following letter, which “leaves even [her] speechless”:

District of Columbia Public Schools
Office of the General Counsel
Labor Management and Employee Relations

November 16, 2000

Dear Ms. [name withheld]:

On June 23, 2000, you were informed by letter that you would not receive an offer of employment with the District of Columbia Public Schools (DCPS) based on the results of your criminal background check. Based on your subsequent presentation of documentation that your 1984 charge for Uniformed Controlled Substance Act, Cannabis was no papered; that your 1984 charge for shoplifting was nolle prosequi; that your 1984 charge for assault with a dangerous weapon, razor was no papered; that your 1984 charge for destruction of government property was nolle prosequi; that your 1986 charge for assault with a deadly weapon was dismissed; that your 1987 charge for soliciting for prostitution was nolle prosequi; that your 1989 charge for assault with a dangerous weapon, razor was no papered; and that your 1992 Uniform Controlled Substance Act, possession with intent to distribute cocaine was dismissed. You are eligible for employment with DCPS.

If you have any questions or concerns, kindly contact Labor Management and Employee Relations at (202) 442-5373.

Sincerely,

Delores Hamilton
Acting Director of Human Resources

cc: Alfred Winder
Employee Services and Staffing
Office of the General Counsel
Labor Management and Employee Relations
Division of Security
Official Personnel File

January 17 — ABA’s toothless ethics proposals. The American Bar Association’s “Ethics 2000” commission wants to revise lawyers’ ethical code, the Model Rules of Professional Conduct. But don’t get your hopes up: the panel shows little enthusiasm for requiring lawyers to observe basic consumer protection precepts such as the disclosure to clients of the billing methods they use or of the existence of alternatives to contemplated legal work. Public comments must be submitted before May. (David A. Giacalone, “Counselors Oughtta Counsel (Not Conceal)”, PrairieLaw, Dec. 7).

January 16 — “Holocaust Reparations — A Growing Scandal”. Back in the September issue of the American Jewish Committee’s journal Commentary, senior editor Gabriel Schoenfeld laid down a courageous challenge to the prevailing view of the World War II reparations crusade, pointing out the difficulties of resolving old title claims to bank accounts, insurance and real estate even when the holders of financial trusts are acting in good faith; questioning some reparations activists’ insistence on portraying in the worst possible light the actions during the war of such nations as the Netherlands and Switzerland; and exploring the often far from constructive role played by ambitious American lawyers and politicians. Now, in its January issue, the magazine publishes a “Controversy” in which numerous readers, including Deputy Secretary of the Treasury and key reparations negotiator Stuart Eizenstat, react to Schoenfeld’s article, and he responds to their criticisms.

January 16 — Batch of reader mail. The latest additions to our letters page discuss tax farming, things hospital staff do to so as not to risk being sued, lawyers’ monopoly on real estate transactions (and the state of the courts generally), and where to buy hallucinogens other than on eBay. Also, an attorney from Louisiana is really upset with us for our coverage of his client’s suit over racetrack payouts.

January 15 — The Times vs. Gale Norton. “The New York Times, for reasons that must be assumed to be political, has attempted to smear Gale Norton, President-elect George W. Bush’s choice for secretary of Interior,” writes Al Knight, columnist with the generally liberal Denver Post. Times reporter Timothy Egan sought to link Norton, who served as Attorney General of the state of Colorado, with inadequate law enforcement efforts in response to contamination from a gold mine in the town of Summitville, which allegedly led to the “death” of the Alamosa river. Don’t miss Knight’s devastating point-by-point correction of Egan’s numerous misimpressions: Knight concludes that “[a]ny mishandling of the [four-year-old] Summitville litigation can be directly traced to the EPA and to the Justice Department.” (Timothy Egan, “The Death of a River Looms Over Choice for Interior Post”, New York Times, Jan. 7 (reg); “Summitville gold mine is cast as a political boogeyman”, Denver Post, Jan. 10; “The blame for Summitville” (editorial), Jan. 11; via WSJ OpinionJournal.com).

National environmental groups’ jihad against Norton may have found a ready ear among some editors in cities like New York where, to quote Fran Lebowitz, the outdoors consists of the distance between one’s apartment lobby and a taxicab. But it exasperates many who actually worked with Norton in Colorado, to judge by a report in Denver’s other major paper, the Rocky Mountain News. “‘There was never one iota of reticence to pursue polluters on (Norton’s) part,’ said Patrick Teegarden, policy director for the Colorado Department of Public Health and Environment and himself a Democrat. ‘She took her role in enforcing our laws very, very seriously and did an excellent job on behalf of this agency.'” On the much-misrepresented “self-audit” issue (see July 19, 1999 and link to Schulte, Roth and Zabel article there), Norton’s position was backed by Democratic Gov. Roy Romer and by the state legislature. (Todd Hartman, “Ex-cohorts deny Norton was patsy for polluters”, Rocky Mountain News, Jan. 14). Some trial lawyers, meanwhile, have it in for Norton because as a private attorney she counseled a major paint manufacturer on how to resist the courtroom assault aimed at turning the decades-ago sale of lead paint into the next tobacco (Douglas Jehl, “Environmental Groups Join in Opposing Choice for Interior Secretary”, New York Times, Jan. 12 (reg)).

A Jan. 13 Times report, meanwhile, darkly announces that Norton “has repeatedly challenged some of the laws that she would be obligated to enforce.” As one example, it offers the famous case of Adarand Contractors v. Pena, in which Norton as AG declined to represent the state against a suit that “challenged Colorado’s support of a law setting aside some highway contracts for businesses headed by members of minority racial groups, a provision that Ms. Norton has opposed as unfair.” But Times reporter Douglas Jehl fails to note that higher courts, including the U.S. Supreme Court, proceeded to rule in Adarand’s favor, confirming Norton’s view. Writes Ira Stoll of the invaluable daily Times-watchdog newsletter, SmarterTimes: “It’s just flat-out false for the New York Times to report this Adarand matter as proof that Ms. Norton ‘has repeatedly challenged some of the laws that she would be obligated to enforce.’ She’d be under no obligation to enforce those racial set-aside laws as secretary of the interior — they are illegal and unconstitutional, as federal courts have repeatedly ruled. She was right to have challenged them.” And Stoll observes that the Denver Post‘s Al Knight “noted in a column that in opposing some of the state’s affirmative action policies in 1995, Ms. Norton was ‘doing precisely what the law requires her to do, make sure that the state is behaving in a lawful manner with minimal exposure to discrimination lawsuits.'” (Douglas Jehl, “Norton Record Often at Odds With Laws She Would Enforce”, New York Times, Jan. 13 (reg); SmarterTimes, Jan. 13) (write a letter to the Times). (DURABLE LINK)

January 15 — “Killer’s suit alleges job discrimination”. Committed to state psychiatric care since the 1978 killing of his wife and stabbing of his daughter and grandmother, Richard L. Greist is now suing the hospital where he’s a resident for allegedly discriminating against him by refusing to hire him for a job as clerk. His suit charges that Norristown State Hospital and the Pennsylvania Department of Public Welfare violated the Americans with Disabilities Act as well as the Constitution’s Equal Protection Clause. “Greist has been found to have paranoid schizophrenia and mixed-personality disorder.” He is being represented by attorney Neil O’Leary. (Kristin E. Holmes, “Killer’s suit alleges job discrimination”, Philadelphia Inquirer, Jan. 4) (more on killers’ rights: Jan. 7, 2000, Sept. 24, 1999).

January 12-14 — Hunter sues store over camouflage mask. Gregory Abshier, 42, of Kent City, Michigan, was paralyzed three years ago when he fell out of a tree stand used for bow hunting. He’s now suing retailer Meijer Inc. for selling him the camouflage mask he was using at the time, claiming he was overcome by fumes from its dyes. He’s being represented by the Southfield law firm of well-known litigator Geoffrey Fieger. Also named in the suit is Hunter’s Specialties Inc., of Cedar Rapids, Iowa, makers of the mask. (Doug Guthrie, “Paralyzed hunter sues Meijer over camouflage mask”, Grand Rapids Press, Dec. 26).

January 12-14 — The Kessler agenda. Critics used to say former food and drug chief David Kessler had a more extreme antilibertarian agenda on tobacco than he let on at the time, and you know what? They were right. He’s now out with a new book (A Question of Intent) arguing that the government should prohibit the sale of cigarettes to persons not already confirmed smokers (after all, wasn’t alcohol prohibition a roaring success?) and that it should establish a nonprofit monopoly enterprise to sell the things. (Duncan Campbell, “US call to ban cigarette sales”, Guardian (UK), Jan. 8).

January 11 — By reader acclaim. Among recent stories submitted by multiple correspondents:

* Latest McDonald’s coffee lawsuit: Teresa Reed of Murphysboro, Ill. says her ankle was burned on New Year’s Eve 1998 when the hot beverage spilled out of a cup holder in her mother’s car. She’s suing the local McDonald’s operator, along with Wal-Mart for selling the cup holder, another company for making it, and — best detail — her mom, asking $450,000. What, no suit against the automaker? (Karen Binder, “McDonald’s Being Sued; Couple Allege Coffee Was Served Too Hot”, Southern Illinoisan, Jan. 8; “McDonald’s Sued Over Spilled Coffee”, AP/Washington Post, Jan. 9) (more on hot beverage suits: Aug. 10 and list at end).

* In Vancouver, B.C., a “man who became a slave to crack cocaine is suing his alleged dealers, claiming they ‘owed a duty of care’ to their customers and should have known their activities could cause harm. ” (Greg Joyce, “Cocaine-addicted man files court claim, suing alleged dealers for damages”, CP/Ottawa Citizen, Jan. 3; “Crack addict sues dealers for lack of care”, Ananova.com, Jan. 4).

* As expected, Baltimore lawyer-Orioles owner Peter Angelos (asbestos, tobacco, lead paint) has sued companies connected with the cellular phone industry charging that radiation from the devices causes cancer, despite a further ebbing of the always-tenuous scientific backing for that proposition (National Cancer Institute, “No Association Found Between Cellular Phone Use and Risk of Brain Tumors”, press release, Dec. 21; Steven Milloy, “Junk science: Studies steal cell phone lawyer’s Christmas”, FoxNews.com, Dec. 22; Chris Ayres, “Vodafone sued over brain cancer”, The Times (London), Dec. 28; “Cancer scare hits cell firms”, CNNfn, Dec. 28; Richard Baum, “Mobile phone firms face fresh suits over tumours”, Reuters/ FindLaw, Dec. 28). Update Oct. 1-2, 2002: court dismisses case.

January 11 — In the gall department. Napster Inc., the company that made a huge success by encouraging its users to take a casual approach toward other people’s intellectual property, went to court last month to file a trademark-infringement suit. It’s suing a souvenir apparel-maker for allegedly selling T-shirts and other items bearing its well-known logo without its consent. (Benny Evangelista, “Napster Sues Firm for Trademark Violations”, San Francisco Chronicle, Dec. 30).


January 31-February 1 — “All you can drink” winner sues over fall. John Remley won an “all you can drink” contest at Super Bowl time a year ago and proceeded to pack away so much liquor that he fell and hurt his head. He’s suing for a sum in excess of $1 million, saying the bar should have seen he was drunk and cut him off. (Kimball Perry, “Man drinks his way into $1 million lawsuit”, Cincinnati Post, Jan. 24).

January 31-February 1 — “A No-Win Numbers Game”. Colleges cut men’s sports teams, and cut, and cut, trying to achieve the artificial “proportionality” pressed for by the federal Title IX law. Then they get sued anyway. “Last year, in pursuit of ‘gender equity’, the University of Miami eliminated the men’s swimming and diving program that produced Olympic gold medalist Greg Louganis. Brigham Young University eliminated its top ten ranked men’s gymnastic team and its top 25 ranked wrestling team. The University of New Mexico slashed three men’s teams. Miami University in Ohio eliminated 30 wrestlers, 25 men’s soccer players and 10 men’s tennis players — not just to save money (the men shared a total of eight scholarships among them) but to get the numbers right.” (Jessica Gavora, Washington Post, Jan. 14) (more).

January 31-February 1 — Unfairness of mandatory IOLTA. Such a clever idea: scoop up the interest on lawyers’ trust accounts (“IOLTA”) and use it to finance lawyering for the poor. However, the Ninth Circuit recently ruled that the interest in the trust accounts rightfully belongs to the lawyers’ clients and can’t be hijacked for the benefit of others without compensation. The sums at stake are too small to “really” matter to clients, say proponents. “But mandatory IOLTA programs also violate client First Amendment rights,” argues George Kraw. “Individual legal consumers aid programs arguing public positions that some oppose.” (“A Matter of Principle”, The Recorder (San Francisco), Jan. 26).

January 31-February 1 — An anything-but-civil juror. Five days into jury deliberations in the two-month trial of a highly publicized suit by the Manville asbestos-plaintiff trust demanding that tobacco companies pay for the contribution of cigarette smoking to asbestos workers’ lung maladies, federal judge Jack Weinstein declared a mistrial after he was sent a handwritten note: “Juror has made threat against other juror to kill” if they have to be “here much longer.” (Tom Hays, “Tobacco-Asbestos Mistrial Declared”, Yahoo/AP, Jan. 25).

January 31-February 1 — Batch of readers’ letters. Our correspondents take issue with our handling of Holocaust reparations litigation, update the saga of antitobacco professor Richard Daynard and the conflicts he didn’t disclose in the British Medical Journal, and recount one man’s experience of being solicited by lawyers after a car crash.

January 30 — By reader acclaim: patented PB&J. Orrville, Ohio-based jam magnates J.M. Smucker have managed to patent the venerable peanut butter and jelly sandwich, or at least a particular crustless version of same. So discovered Albie’s, a food manufacturer and restaurant in Gaylord and Grayling, Mich., best known for its version of Michigan’s most famous delicacy, pasties. Albie’s started making crustless PB&Js for their customers last summer but have now been hit with a cease and desist letter saying that they are infringing on a patent # 6,004,596 issued in December 1999, to a Smucker unit for the “sealed crustless sandwich.” The Smucker people say the crimped edge makes all the difference. (Crystal Harmon, “Food company hopes to resolve jam over crustless sandwiches”, Bay City (Mich.) Times, Jan. 20; “Smucker protects peanut butter-jelly sandwich patent”, Reuters/FindLaw, Jan. 25) (& see letter to the editor, Feb. 12). Update: Albie’s prevails (Apr. 9 and May 31, 2005)

January 30 — Annals of zero tolerance: fateful fiction. Leading lights of the Canadian literary establishment are lending their moral support to the latest youngster to run afoul of zero-tolerance policies: “Within days of performing for his 11th-grade drama class a monologue he had written about a harassed student preparing to blow up his school, the young author, from a village near Cornwall, Ontario, was arrested, strip-searched, and incarcerated. His detention lasted 34 days — through his 16th birthday as well as the Christmas and New Year’s holidays. He’s out of jail on $2,500 bail now, but has become a cause célèbre here.” (Ruth Walker, “Writers rally for Canadian boy jailed for tale”, Christian Science Monitor, Jan. 26).

January 29 — Getting around small-aircraft lawsuit reform. “The General Aviation Revitalization Act of 1994 (GARA) immunized makers of GA aircraft against lawsuits for defects in products older than 18 years and is credited — along with a strong economy — for breathing new life into non-commercial aviation in the U.S. But, if manufacturers are no longer liable, who is? … If you’re a pilot, an owner or a parts manufacturer, you may not like the answer.” Moreover, the ever-inventive Ninth Circuit U.S. Court of Appeals in California has “carved a hole in GARA by ruling that an aircraft’s flight manual is a part of the aircraft. Thus, any post-sale revisions or deletions to an aircraft manual may restart the 18-year clock each time they are made.” (Phillip J. Kolczynski, “GARA: A Status Report”, AvWeb).

January 29 — Homemade cookie menace averted. Rachel Wray vowed to be the kind of mom who prepares home-baked goodies for her kids to take to school, but discovered the district had a policy: “No treat can be distributed to children on school grounds unless it’s sealed in packaging from a grocery store or retail bakery.” (“I wanted to be a mother who bakes”, Salon, Jan. 2). And the Washington Post reports that officials in Loudoun County, Virginia, are insisting that all bakers and canners take a food safety course before selling their homemade pies and jams at small town fairs. “They’re taking the country out of country” complains the director of the Lucketts Fair. (Christine B. Whelan, “Home Cooks Gag on Rules for Fairs in Loudoun”, Washington Post, Sept. 15 (fee-based archive — search on “Lucketts Fair”)) (via Max Schulz, CEI Update, Oct./Nov.) See “Pie Menace Averted”, Dec. 13, 1999.

January 26-28 — “The litigation machine”. Business Week‘s cover story explores some of the methods by which mass litigation gets ever more effective at extracting money from its targets. Among them: mass production of claims, sophisticated document-sharing, and financing arrangements by private firms that now finance actions in exchange for a slice of the proceeds. (Jan. 29).

January 26-28 — Anorexia as disability. Keri Krissik is suing Stonehill College in Massachusetts “for refusing to let her register on the grounds of her anorexia,” in violation, she says, of the Americans with Disabilities Act. “Miss Krissik stands 5-feet-six-inches and weighs less than 100 pounds.” (“Anorexia as a disability?”, Washington Times (editorial), Jan. 18).

January 26-28 — Solomon’s child. “In Victoria[, B.C. in December], a seven-year-old boy was at the centre of a legal battle after his father refused written consent for a three-week car trip to Arizona and Disneyland. Jason Arsenault, the 28-year-old father, was prepared to deny his son this experience because Elizabeth Howse, his 27-year-old former common-law wife, wouldn’t agree to refrain from smoking in the car. … There is something worse than growing up in a household where your parents are constantly at each other’s throats — spending your childhood in a legal war zone, torn between adults whose petty courtroom battles never end.” (Donna LaFramboise, “Courts often encourage parents to keep bickering”, National Post (Canada), Dec. 19).

January 26-28 — Digital serfs? Contrary to what some commentators seem to imagine, the “vast majority of high-tech workers are not independent contractors or agency temps, and those who are overwhelmingly prefer their status, according to a new analysis by the Employment Policy Foundation of government data. ” Moreover, according to EPF, the average annual income of high-tech independent contractors and agency temps “is just over $51,000 — a figure not significantly different from high-tech professionals who are regular, traditional employees.” (“High Tech Independent Contractors and Agency Temps: Who They Are and How They Work” (PDF document), Jan. 23).

January 24-25 — Philadelphia juries pummel doctors. Southeastern Pennsylvania’s medical community is still reeling from a $118 million jury award last fall against St. Luke’s Hospital in Bethlehem and St. Christopher’s Hospital for Children in Philadelphia. That topped verdicts of $55 million and $49.6 million in other malpractice cases within the same three-month span, the latter awarded to a client of Shanin Specter, one of the city’s most successful personal-injury lawyers. Specter also won a $158 million product-liability case against Ford Motor in 1998, as well as huge verdicts in cases involving motorcycle helmets and swimming pools; he happens to be the son of U.S. Senator Arlen Specter of Pennsylvania, a Republican who often breaks from his party on issues of litigation reform. (Karl Stark, “In Phila., malpractice awards have ‘gone haywire'”, Philadelphia Inquirer, Dec. 10; Hudson Sangree, “Jury Slams Ford with $153 Million Verdict for death of 3-year-old boy”, Lawyers Weekly USA, Jan. 11, 1999, reprinted at Kline & Specter site).

January 24-25 — Perils of regulatory discretion. “Flexible” rules, regulatory arrangements based on “reasonableness” — what could be better as a way of handling an issue like building permits? But actually it’s an invitation to whimsical delay, as one New Englander discovers when his quest to enlarge a house turns into a months-long ordeal: “the bureaucrats had plenty of discretion and were very reasonable, yet we were worse off than if what we wanted to do were simply forbidden. In that case we just wouldn’t have purchased the property. Instead, we had months of uncertainty after the purchase.” Prescription: clear rules, mechanically applied. (Gene Callahan, “Shaky ground”, Reason, Jan.).

January 24-25 — “Suicide-Attempt Survivor Sues”. “A former Suffolk deputy police inspector who tried to kill himself has filed a $45-million federal lawsuit, blaming the county for giving him back his service pistol, one day after stripping him of the weapon, fearing he might hurt himself or others.” Dominick Steo of Holbrook shot himself in the head in 1999. (Rick Brand, Newsday, Jan. 6).

January 24-25 — “Sex shop is fined because its videos are ‘too tame'”. Consumer protection authorities in York, England, have fined a sex shop owner £5,826 for selling as “hard-core” videos that were actually quite tame, such as a comedy starring Sixties sexpot Ursula Andress. Irate buyers “felt cheated”. (Sally Pook, Daily Telegraph (UK), Jan. 19).

January 22-23 — Metric martyr goes on trial. In a Sunderland, England, magistrates’ court, trial has begun for the greengrocer accused of selling bananas in pounds and ounces instead of Euro-directed measurements, in the first such prosecution for metric noncompliance (see “Don’t Give an Inch”, Nov. 13). The opposition Conservative Party registered sympathy with defendant Steven Thoburn by sending its shadow trade and industry minister to take him to lunch during a leave from the courtroom, provocatively sitting down to a McDonald’s “Quarter Pounder”. (David Graves, “Case of Metric Martyr ‘echoes trial of witches'”, Daily Telegraph (London), Jan. 17; “Quarterpounder adds to troubles”, Jan. 17; “Sunderland Metric Martyrs” website. Plus: James Bond parody of undercover metric enforcement (best detail: “Miss Moneycent”): Tom Utley, “An honest man is charged while criminals are freed,” Daily Telegraph, Jan. 17. Update: Thoburn convicted (April 11, 2001)

January 22-23 — “Firms mum on troubled workers”. You might hope companies would warn each other about employees like Michael McDermott, the man police say murdered seven co-workers last month at Edgewater Technology in Wakefield, Mass. But the reality, the Boston Globe finds, is that human resource managers tend to keep mum about even serious problems with former personnel, rather than risk getting sued. ”Silence is golden,” says law professor Markita Cooper. ”Silence is protection.” Although most states have passed laws protecting reference-givers, and very few cases have ultimately gone against them, facing suit is itself perceived as the punishment, win or lose. Edgewater itself says that when other companies call to ask for references on its ex-workers, it goes no farther than verifying employment: ‘there are a number of sticky laws in place about what a company can and can’t say,” says a spokesman. (Michael Rosenwald, “Firms mum on troubled workers”, Boston Globe, Jan. 9).

January 22-23 — Someone might get confused. “Just when you think the battle over domain names and trademarks can get no more ridiculous, Pillsbury goes and ups the ante. Universities and companies as large as Sun Microsystems received cease-and-desist letters this week ordering engineers to stop holding what the [giant flour maker] considers illegal ‘bake-offs.’ But it’s not as if the engineers are huddling together around the oven trading stolen recipes — in techie lingo, a ‘bake-off’ is a get-together in which software programmers test their creations against network protocols to see if they will work correctly. … No matter: The geeks are infringing on Pillsbury’s ‘bake-off trademark,’ the letters argued.” (Damien Cave, “Pillsbury Doughboy mauls techies”, Salon, Jan. 20)(Slashdot thread).

January 22-23 — CBS among asbestos litigation targets. “Viacom, which became one of the largest media companies in the world with its acquisition of CBS Inc. in May, is facing 140,872 unresolved asbestos-related claims from discontinued operations of Westinghouse Electric Corp. as of Sept. 30. Westinghouse Electric purchased CBS in 1995 and took on the name CBS Corp.” On the other hand, Warren Buffett has been buying up stocks of some besieged companies, perhaps betting that Congress will attempt to resolve the issue. (Gregory Zuckerman, “Specter of Costly Asbestos Litigation Haunts Old Economy Companies”, Wall Street Journal, Dec. 27 (sub)). An exec with auto parts maker Federal-Mogul “said 90% of [its asbestos] claims are now paid to people who show no serious ill effects. Still, Federal-Mogul expects to make payments of $350 million this year and a further $550 million by 2004.” (Paul M. Sherer, “Federal-Mogul Gets New Credit Lines, Plans to Fight Against Asbestos Litigation”, Wall Street Journal, Jan. 4) (sub).