| Other resources: Websites “Freedom of Speech vs. Workplace Harassment Law” (highly informative site maintained by Prof. Eugene Volokh, UCLA Law School) Organizations Books The shelf of books critical of the overreach of harassment law got at least three important additions in 1999. Daphne Patai of the University of Massachusetts, known already as a co-author of Professing Feminism: Cautionary Tales From the Strange World of Women’s Studies, published Heterophobia: Sexual Harassment and the Future of Feminism. Cathy Young, columnist for the Detroit News, published Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality. And Joan Kennedy Taylor, associated with the Cato Institute, published What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment. (Also see our editor’s 1997 contribution, The Excuse Factory.)
Filed under: ACLU, Alaska, Chrysler, Connecticut, Detroit, Europe, free speech, harassment law, Illinois, Massachusetts, Philadelphia, The Excuse Factory, Title IX, zero tolerance
December 20-22 — Advance notice for The Rule of Lawyers. Our author’s new book still won’t reach most stores for a few weeks, but it’s garnering early notice in some prominent places. More than a month back Amity Shlaes of London’s Financial Times gave it a mention in a column profiling hyperactive New York Attorney General Eliot Spitzer (Amity Shlaes, “Local enforcer who has changed national laws”, Financial Times/Jewish World Review, Oct. 31). Last month it got discussed in the New York Times arts section (Daphne Eviatar, “Is Litigation a Blight, or Built In?”, New York Times, Nov. 23, second page). Wall Street Journal editorialist John Fund, recounting highlights of the career of Sen. Trent Lott for the paper’s online OpinionJournal.com, quotes the book’s discussion of how the lawyers suing the tobacco industry tried to exploit Lott’s family connection to attorney Dickie Scruggs (“A Tale of Two Bubbas”, OpinionJournal.com, Dec. 19).
Deserving special notice is Roger Parloff’s piece in The American Lawyer and other Law.com publications (“Authors Throw the Book at Lawyers”, Dec. 12), which calls the book “a focused, healthy, provocative, enjoyable read. … that rare book that, should it ever burrow its way into the opposing camp’s conversational pipelines, could really gum up the works.” Among other blushworthy excerpts: “Olson’s wry, amusing, libertarian take on the increasingly preposterous role that mass tort lawyers have assumed in our society — and in the funding of the Democratic Party — may not only spur many Democrats to reshuffle their standard talking points on those issues, but may even afford them some guilty, cant-piercing pleasures along the way. Speaking as a Democrat, I’d say the burgeoning scandal of the mass tort bar is our Enron.” (DURABLE LINK)
December 20-22 — Trial lawyers vs. thimerosal. Glenn Reynolds at InstaPundit (Dec. 19, three posts: # 1, 2, 3) has the latest on the flap over new federal curbs on lawsuits that claim damage to children’s health from thimerosal, a mercury-containing compound long used to preserve vaccines. According to the Centers for Disease Control (“Thimerosal & Vaccines“), citing Food and Drug Administration research, “There is no evidence to suggest that thimerosal in vaccines causes any health problems in children and adults beyond local hypersensitivity reactions (like redness and swelling at the injection site.)” This has not kept trial lawyers from urging parents of autistic children to view the compound as responsible for their children’s plight: Derek Lowe checked out law firms’ websites and found lurid examples (Dec. various dates — scroll down for more good posts). “Dr. Manhattan” has much more on the controversy (Dec. 18) and see also MedPundit (Dec. 5). For more on the recent legislative move to ensure that claims against thimerosal are incorporated into the general federal vaccine compensation scheme, see Margaret Cronin Fisk, “Suits Over Mercury-Containing Vaccines May Be Down for the Count”, National Law Journal, Nov. 27; “The Truth About Thimerosal” (editorial), Wall Street Journal, Dec. 5. (DURABLE LINK)
December 20-22 — Putting fraud proceeds to use. John Deokaran, a former insurance manager from Hammond, La., has pleaded guilty to taking more than $530,000 from Allstate Insurance by routing checks for imaginary claims to fictitious plumbing contracting companies that he controlled. Deokaran must make restitution or face prison time. “Among other things, Deokaran spent some of the money to pay for law school,” said Louisiana Attorney General Richard Ieyoub. (“AG Ieyoub: Hammond Man Must Pay Back Fake Claims Money Laundering Sentence Stipulates Full Restitution”, Office of AG Ieyoub, Aug. 20). (DURABLE LINK)
December 18-19 — The right not to be looked at? “The Chicago Cubs are suing the owners of rooftop businesses that overlook Wrigley Field and sell tickets to watch games, saying the establishments are stealing from the team.” (“Cubs sue owners of rooftop businesses near Wrigley”, AP/Indianapolis Star, Dec. 17). Update May 9, 2004: dispute settled with payments from rooftop business owners to team. (DURABLE LINK)
December 18-19 — “Asbestos fraud”. Extremely scathing column on the case of asbestos litigation, in which “the thirst for profits has led a small group of trial lawyers to erode the rights of legitimate victims while driving dozens of companies into bankruptcy and — worst of all — corrupting the court system. If Congress does not fix this problem, shame on it.” (Robert J. Samuelson, Washington Post, Nov. 20). (DURABLE LINK)
December 18-19 — British free-speech case. Robin Page, a columnist for the London Daily Telegraph, “has been arrested on suspicion of stirring up racial hatred after making a speech at a pro-hunting rally,” according to that paper. How had he done that? “Mr Page … told his audience that Londoners had the right to run their own events, such as the Brixton carnival and gay pride marches, which celebrated black and gay culture. Why therefore, he asked, should country people not have the right to do what they liked in the countryside[?]” Page, who was released on bail, “denied having made any comment that could be construed as racist during the address. … Gloucestershire police confirmed that they had arrested Mr Page on suspicion of violating Section 18 (1) of the Public Order Act, referring to stirring up racial hatred.” (Daily Telegraph, Nov. 20) (via WSJ Best of the Web) (DURABLE LINK)
December 18-19 — Mass disasters belong in federal court. Most mass litigation resulting from transportation accidents or other single-site disasters which result in the deaths of 75 or more people will henceforth have to be filed in federal court, according to the provisions of a bill quietly enacted by Congress this fall with the support of the Bush administration. The bill is favored by defendants in part because it restricts the ability of plaintiff’s lawyers to shop around for state court venues that are hostile to defendants or that afford “home cooking”. (Julie Kay, “Disaster Plan”, Miami Daily Business Review, Nov. 21). (DURABLE LINK)
December 16-17 — By reader acclaim: “Ex-jurors file $6 billion suit against ’60 Minutes'”. “Two former Jefferson County, Mississippi, jurors have filed a $6 billion lawsuit against CBS’ ’60 Minutes’ and a newspaper owner over comments about the size of jury awards in the county. Anthony Berry and Johnny Anderson said the news program defamed them in a segment that called the county a haven for ‘jackpot justice.’ Berry was among jurors who made a $150 million verdict in an asbestos case, and Anderson sat on a jury that awarded a $150 million judgment in a diet drug case. Wyatt Emmerich, who owns Emmerich Newspapers Inc., is also being sued: “In the program, Emmerich described those on Jefferson County juries as disenfranchised residents who want to stick it to Yankee companies”. Emmerich called his inclusion in the suit an attack on free speech. (AP/CNN, Dec. 10; Jerry Mitchell, “TV show on Miss. justice stirs suit”, Jackson Clarion Ledger, Dec. 10). Update Mar. 6, 2005: federal appeals court affirms dismissal of suit. (DURABLE LINK)
December 16-17 — “Bogus Claims Discovered in Fen-Phen Class Action”. “In a strongly worded opinion that questioned the ethics of two law firms and two doctors, the federal judge who is overseeing the $3.75 billion fen-phen diet drug class action settlement has found that dozens of claims of heart-valve damage were ‘medically unreasonable’ and that the doctors and lawyers responsible for the bogus claims must now be watched more closely. U.S. District Judge Harvey Bartle III said he was forced to issue an injunction because the settlement funds were set aside for ‘rightful claimants who suffered from fen-phen and not as a pot of gold for lawyers, physicians and non-qualifying claimants.'” Two New York law firms — Napoli Kaiser Bern & Associates and Hariton & D’Angelo — had submitted claims for their clients which included an unusually high rate of claimed serious heart valve abnormalities. Judge Bartle wrote that the practice of an expert employed by the Napoli and Hariton firms “resembled a mass production operation that would have been the envy of Henry Ford”. (Shannon P. Duffy, The Legal Intelligencer, Nov. 19)(see Sept. 27 and links from there). (DURABLE LINK)
December 16-17 — Ninth Circuit panel sniffs collusion in bias settlement fees. “The 9th U.S. Circuit Court of Appeals upended a multimillion-dollar race discrimination settlement Tuesday, citing suspicions that the attorney fees were the product of collusion. The split three-judge panel described the injunctive relief won in the case against Boeing Co. as ‘relatively weak,’ and said it and the $7 million in damages didn’t appear to justify more than $4 million in fees and a broad release of liability.” The case, purportedly on behalf of 15,000 black Boeing employees, had resulted in the company’s promise to institute changes in employment practices. However, Judge Marsha Berzon called such curative measures an “inexact and easily manipulable value,” and said they should not be viewed as creating a common fund for purposes of fee calculation. “Harrell, Desper, Connell, Hunter & Gautschi, the Seattle-based firm representing the class, had supplied many declarations, including one from the Rev. Jesse Jackson, supporting the terms of the settlement.” (Jason Hoppin, “9th Circuit Scraps Race Bias Settlement, Cites Attorney Fees”, The Recorder, Nov. 27). (DURABLE LINK)
December 13-15 — Back from hiatus. Our editor’s hiatus to handle personal business met with the happiest possible outcome, but as a result he’s facing new family responsibilities that will keep posting slow at best. Better some posting than none at all, at least, right? (DURABLE LINK)
December 13-15 — Using his own name a legal risk. The Atlanta Journal-Constitution‘s Bill Wyman shares his name with a somewhat well-known musician who played bass with the Rolling Stones. He was nonetheless unprepared when he received a letter from the musician’s lawyer suggesting that he might be violating the other guy’s rights by … well, by going on using his own name (Bill Wyman, “Will the real Bill Wyman please tune up?”, Atlanta Journal-Constitution, Nov. 14). (DURABLE LINK)
December 13-15 — Florida school shooting: the deep pockets did it. A Palm Beach County, Fla. jury has declared that a school board, an owner from whom a gun was stolen and the gun’s distributor should be liable for the classroom shooting of Lake Worth teacher Barry Grunow by 16-year-old student Nathaniel Brazill. “The jury didn’t find any liability for Brazill, who pulled the trigger. Brazill stole the unloaded gun and bullets from a cookie tin stashed away in a dresser drawer of family friend Elmore McCray.” (“Gun Company Must Pay Teacher’s Widow”, WPLG, Nov. 15). “Attorney Bob Montgomery, known for successfully spearheading the state’s efforts to sue Big Tobacco for $11.3 billion, said he hoped the gun case would achieve the same crippling results against the gun industry.” (“Gun distributor must pay in teacher’s death”, AP/Redding (Calif.) Record Searchlight, Nov. 15). Update Feb. 4-5: judge throws out case (DURABLE LINK)
December 13-15 — Law’s attraction for the bully. “[A] lot of hyper-glandular people are attracted to the legal profession because it looks like the perfect job for bullying other people. Plus, it pays well. Of course, the apologists for this sort of bad lawyering (mostly like-minded and acting lawyers) … argue that all that I am carping about is what is known as ‘zealous advocacy’ — which is next to godliness in the pantheon of ethical requirements. Of course, there is no ‘ethical requirement’ that justifies what some lawyers do in terms of name-calling, rules-flouting and frivolous motion-filing. It is simply a conceit that these lawyers rely on to transform their vices into supposed virtues.” (Jim McCormack, “Deconstructing Opposing Counsel”, Texas Lawyer, Oct. 25). (DURABLE LINK)
December 13-15 — Gotham’s trial lawyer-legislators. If it’s unusually hard for New Yorkers to obtain any legislative relief from their state’s lawsuit culture, our editor observes in an op-ed, maybe one reason is that numerous lawmakers are themselves trial lawyers, including Assembly Speaker Sheldon Silver of Manhattan (who previously practiced with controversial tobacco-beneficiary law firm Schneider Kleinick, and recently joined controversial asbestos/product liability law firm Weitz & Luxenberg) along with New York City Council members Michael E. McMahon and Domenic M. Recchia. (Walter Olson, “Legal Payola”, New York Post, Nov. 21, reprinted at Manhattan Institute site). (DURABLE LINK)
December 30, 2002-January 2, 2003 — Happy New Year. We’ll be back Friday.
December 30, 2002-January 2, 2003 — Updates. Among cases that continued to develop while our attention was elsewhere:
* A panel of the Fourth Circuit threw out (PDF) the $2 million punitive damage award against Duke University under federal sex discrimination law to Heather Sue Mercer, “who was allowed a walk-on spot as a kicker on the school’s football team but [was] treated differently than other players.” (see Oct. 13, 2000) (Leslie Brown, “Court voids kicker’s award”, Raleigh News & Observer, undated circa Nov. 16) (The Mat forums)
* The Ohio Supreme Court’s pro-litigation majority, shortly before voters turned it into a minority, dealt Ford Motor Co. a setback by ordering a new trial in a case where the automaker had rebuffed charges of “sudden acceleration” in its Crown Victoria model (see Jun. 6, 2000) (Alan Fisk, “Videotape Revives Lawsuit Against Ford Motor Co.”, National Law Journal, Oct. 21).
* An Alaska federal judge cut the punitive damage award against Exxon Mobil in the Valdez spill case from $5 billion to $4 billion; the litigation could still drag on for years more (see Nov. 15, 2001) (Jason Hoppin, “Exxon Valdez Award Reduced — but Only to $4B”, The Recorder, Dec. 10).
* In the controversy over baseball bats that are allegedly too powerful (see Apr. 19, 2002), a California state appeals court has rejected assumption-of-risk defenses and ruled that a college baseball player can sue the University of Southern California, “the Pacific-10 Conference, the National Collegiate Athletic Association and the makers of the Louisville Slugger bat on the ground that the company’s Air Attack 2 bat substantially increases the dangers of America’s pastime by letting the ball be smacked at hair-raising speeds.” (Mike McKee, “Bat Ups Chance of Baseball Injuries, Appeals Court Rules”, The Recorder, Dec. 24). (DURABLE LINK)
December 27-29 — Receivers in bankruptcy. “In the bizarre yet lucrative world of Enron’s bankruptcy, everyone seems to have a complaint these days. The $300-an-hour lawyers complain that the $500-an-hour lawyers are charging exorbitant fees. … Already, lawyers and other professionals have billed Enron close to $300 million in what some critics say is an unparalleled fee bonanza,” some of it going to the same high-priced professionals who advised the company before its fall. (David Barboza, “The Meter Runs in Enron Case, as the Lawyers Retain Lawyers”, New York Times, Dec. 25). Some of the lawyers have submitted expense requests that included liquor purchases; other practices include “marking up the costs of photocopies and faxes, and charging for clerical work at lawyers’ steep hourly rates”. (Otis Bilodeau, “Enron Lawyers Face Fee Cuts”, Legal Times, Dec. 10). (DURABLE LINK)
December 27-29 — California’s hazardous holiday. Chestnuts-roasting menace averted, cont’d: taking a cue from Berkeley and other Bay Area cities, air quality regulators in California’s Central Valley are proposing a ban on traditional wood-burning fireplaces in homes, as well as regulations on how existing ones can be used. “Under proposed rules that would take effect next year, most wood-burning fireplaces and stoves would be banned in new homes. Masonry fireplaces would have to be permanently disabled, converted to natural gas or upgraded to expensive soot-containing models before homes could be sold. Also, on bad air days during the winter, many Central Californians would be prohibited from lighting up their existing wood-burning stoves and fireplaces in a concerted effort to get the smoggy valley to comply with the Clean Air Act.” (Kim Baca, “California air regulators propose fireplace ban”, Sacramento Bee, Dec. 6)(see Dec. 24-27, 2001). Also in California, environmentalist lawyers using a bounty-hunting statute recently sued restaurants serving French fries on the grounds that the fries contain measurable amounts of acrylamide, a potentially hazardous substance generated when starch is subjected to heat. A complicating factor, however, according to the food-industry-defense Center for Consumer Freedom, is that “A nationwide study carried out in Germany has found that gingerbread contains seven times the amount of acrylamide found in French fries.” Better enjoy that holiday baking binge while it’s still legal. (“Just when you thought the holidays were safe”, Center for Consumer Freedom, Dec. 9; “French fry lawsuit-mongers unmasked“, Sept. 9). (DURABLE LINK)
December 24-26 — Merry Christmas. We’ll take a couple of days off to celebrate the holiday, and see you Friday. (DURABLE LINK)
December 24-26 — “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”. We figured this would happen, and now it has: “An upstate New York judge has held for the first time that the courts must reasonably accommodate a visually impaired attorney who breached the time restrictions for submitting a judgment. … Finding that the ‘courtroom and court system constitute the trial lawyer’s workplace,’ and that the workplace ‘logically extends to the preparation of documents associated with litigation,’ [New York State Supreme Court Justice Robert] Julian held that [attorney Norman] Deep is owed an accommodation.” (John Caher, “Court Waives Deadline as ‘Reasonable Accommodation’ for Disabled Litigator”, New York Law Journal, Dec. 2). (DURABLE LINK)
December 24-26 — “Britain sued for millions by Mau Mau terrorists”. “The families of soldiers who fought the Mau Mau uprising in Kenya reacted with fury last night to news that former terrorists are planning to sue the British Government over their treatment after being taken captive.” (Daniel Foggo and Christian Steenberg, Daily Telegraph, Nov. 10). (DURABLE LINK)
December 23 — Lawyers’ advertising, 25 years later. In 1977, by a 5 to 4 majority, the U.S. Supreme Court ruled that lawyers have a constitutional right to advertise for clients. A retrospective by the National Law Journal‘s Mark Ballard mentions some of the resulting low-water marks of taste, including “the one where 300 pounds of lawyer emerges from the water to the strains of ‘Swan Lake’ bedecked in gold chains and carrying a chest of cash with the message that he’ll bring the treasure home to you,” the one featuring “Robert Vaughn, former ‘Man from U.N.C.L.E.,’ in suspenders, sternly promising that whichever attorney was hired in that particular market was so fearsome that otherwise recalcitrant insurance companies will roll over and pay up big bucks,” and — no specifics given, alas, but deplored by a former Florida bar president — episodes in which lawyers have “drive[n] hearses to shill no-frill wills” and sponsored cars in demolition derbies to promote personal-injury practices. (Mark Ballard, “Coming to Terms With the $20,000 Ad”, National Law Journal, Sept. 25; “The Ad-Made Man and the Old-Line Firm”, National Law Journal, Oct. 3; “The Little Ad That Changed Everything”, National Law Journal, Oct. 10). (DURABLE LINK)
Filed under: Alaska, bankruptcy, baseball, Bay Area, Exxon, Ford Motor, French fries, Germany, Ohio, sudden acceleration
February 20-21 — Updates. Further developments in stories familiar to our readers:
* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (“Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)
* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).
* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (“Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).
February 20-21 — Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).
February 20-21 — Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (“Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)
February 20-21 — “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)
February 18-19 — “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).
February 18-19 — Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.
“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).
February 18-19 — “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).
February 18-19 — Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (“Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).
February 15-17 — Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (“Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).
February 15-17 — “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (“Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).
February 15-17 — “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).
February 15-17 — Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).
February 15-17 — Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.
February 13-14 — Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).
February 13-14 — British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.
February 13-14 — Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).
February 13-14 — Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.'” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).
February 11-12 — New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that'”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).
February 11-12 — “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).
February 11-12 — Columnist-fest. All first-timers:
* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?'” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).
* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (“BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).
* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).
* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.
February 11-12 — Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).
Filed under: Alaska, asbestos, attorneys general, Australia, bankruptcy, Dickie Scruggs, divorce, firefighters, John Edwards, Long Island, New Jersey, tobacco, Toyota
November 19-20 — New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)
November 19-20 — Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.
“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)
November 19-20 — By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.
November 19-20 — Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).
Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)
November 16-18 — Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.'” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).
November 16-18 — EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).
November 16-18 — Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).
November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).
November 15 — Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).
November 15 — Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).
November 14 — “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice'”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).
November 14 — Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.
And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)
November 14 — “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).
November 13 — From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.
“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …
“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …
“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.'” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).
Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.'”
Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)
November 13 — Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.
November 13 — Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).
November 12 — “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”
November 12 — Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).
November 12 — “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.
Filed under: ACLU, Alaska, asbestos, Atlanta, attorneys general, Cincinnati, Coca-Cola, Connecticut, contingent fee, Erin Brockovich, Exxon, Germany, Houston, Illinois, Joe Jamail, lead paint, libel slander and defamation, Louisiana, New Jersey, nursing home, Ohio, Pennsylvania, Saudi Arabia, South Carolina, statutes of limitations, tobacco, Utah, Virginia Tech, Wisconsin
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).
Filed under: Alaska, attorneys general, Baltimore, Cincinnati, Detroit, global warming, hospitals, Houston, Kentucky, lead paint, Louisiana, Netherlands, Ohio, Seattle, tobacco, Utah, West Virginia, zero tolerance
April 10 — “The love children of Flight 261”. “Families of four men killed in the crash of Alaska Airlines Flight 261 en route from Puerto Vallarta, Mexico, claim they are victims of a cruel scam. Attempting to cash in on multimillion-dollar wrongful-death lawsuits, claimants in Guatemala said the men had all secretly fathered children in that country. The families say the lawyers representing the phony heirs knew, or should have known, their clients’ claims were fraudulent.” We covered this story (via the San Francisco Chronicle and Aero News Network) back on Nov. 29, but this new piece adds some telling details: for example, two of the (genuine) survivor families say they had to spend $200,000 to fend off the supposed Guatemalan heirs, and they wonder why the American lawyers who represented those claimants shouldn’t be held financially accountable for the harm their lawyering inflicted, especially since two of these lawyers — Robert Parks and Edgar Miller of Coral Gables, Fla., — just happen to have represented all four sets of supposed secret Guatemalan children to file claims in connection with Flight 261 (Bob Van Voris, National Law Journal, Apr. 9). (& see Aug. 3).
April 10 — Canada’s secret legal aid. In the United States, the Legal Services Corporation subsidizes litigation efforts meant to push the law in a “good” or “progressive” ideological direction, and has accordingly long met with criticism from those of us who are not convinced that the proposed changes in the law are always so great and wonder why everyone’s tax dollars should be handed over to one side of these debates to pursue essentially ideological court struggles. Our neighbor to the north has hit on a handy way to keep its aid program for “law-reform” litigation from being as controversial as ours: it simply refuses to disclose the recipient list (Scott Edmunds, “Recipients of Ottawa’s legal aid kept secret”, Canadian Press/National Post, Feb. 26).
April 9 — By reader acclaim: “Clowns told to get custard pie insurance”. Clowns in Britain are “terrified to the tips of their red noses” that unappreciative patrons will sue them over injuries from thrown pies and water-squirting, or more hazardous acts such as those involving fire and unicycles. Ian James, who heads the performers’ trade union, says that while none of his colleagues in the United Kingdom have yet been sued, “we are worried now that British audiences may be becoming like American, ready to sue anyone for anything.” (Alan Hamilton, “Stop clowning around, clowns told”, The Times (UK), April 6; Reuters/Yahoo, Apr. 6).
April 9 — Plastic cup blamed for child’s autism. A “personal injury lawyer is threatening a lawsuit alleging a plastic drinking cup caused a child’s autism … Dallas-based lawyer Brian R. Arnold wrote Playtex Products, Inc. in January alleging that a toddler became seriously ill and, eventually, ‘began to exhibit autistic behavior,’ after drinking from a plastic spill-proof cup made by Playtex. Arnold claims the spill-proof cup was designed in a defective manner that allowed bacteria and mold to build in the cup. Alleging the bacteria caused the child’s condition, Arnold accused Playtex of negligence in distributing a defective cup and demanded $11 million in damages.” Although the causes of autism remain unknown, “there is a network of ‘experts’ who are ready, willing and able to support such a wild claim”. (Steven Milloy, “Quack Attack! The Case of the Dangerous Sippy Cup”, Fox News, Apr. 6).
April 6-8 — “Court upholds workers compensation for drunk, injured worker”. “A man who got drunk on a business trip and suffered severe frostbite after passing out in very low temperatures should be entitled to worker’s compensation, the Wisconsin Supreme Court ruled Wednesday. The court in a 4-3 decision upheld the ruling of the Wisconsin Industry Review Commission, which said William Larsen was in northern Wisconsin expressly for work, but it also reduced Larsen’s compensation by 15 percent, since he was injured while he was intoxicated.” (“Court upholds workers compensation for drunk, injured worker”, AP/Milwaukee Journal Sentinel, Apr. 4; Jessica McBride, “Worker prevails in frostbite case”, Apr. 4).
April 6-8 — Suing “The Sopranos”. “An Italian-American lawyers group says it will sue the makers of HBO’s ‘The Sopranos’ series today for offending the ‘dignity’ of Italian-Americans by implying most of them are mobsters. … [citing] Section 20 of Illinois’ Constitution [which] reads in part: ‘Communications that portray criminality, depravity or lack of virtue in . . . a group of persons by reason of or by reference to religious, racial, ethnic, national or religious affiliation are condemned.”” (Abdon M. Pallasch, “Stung by ‘Sopranos'”, Chicago Sun-Times, April 5; Matt Zoller Seitz, “Advocacy group claims series runs afoul of the law”, Newark Star-Ledger, Apr. 5) (Update Sept. 21-23: judge dismisses; Jul. 12-14, 2002: case dropped after appellate court upholds dismissal).
April 6-8 — Target: Alka-Seltzer. Until November, phenylpropanolamine (PPA) “was a ubiquitous ingredient in over-the-counter cold remedies and diet aids found in practically everyone’s medicine cabinet,” including Alka-Seltzer, Contac, Tavist-D, Robitussin, Acutrim and many more. Now it’s been withdrawn following a study suggesting that its use may correlate with a slightly elevated (though still very small) risk of stroke. Trial lawyers, who expect thousands of suits to result, are vigorously advertising for clients who suffered strokes and had previously used common over-the-counter remedies containing PPA — and if it isn’t easy to sort out the genuine propter hocs from a haystack of specious post hocs, well, that’s what we have jury trials for, right? (Bob Van Voris, “Plaintiffs Rev Up New PPA Drug Lawsuits”, National Law Journal, March 19; FDA information page; list of OTC products (Aphanet)).
April 5 — Selling out the class? “Angry plaintiffs’ lawyers have accused other members of the plaintiffs’ bar of colluding with H&R Block and Beneficial National Bank to settle litigation allegedly worth more than $1 billion for just $25 million.” The underlying litigation charged that Block violated federal truth-in-lending laws and state laws by not adequately disclosing to its customers that it got a referral fee and other financial benefits when they took out “Refund Anticipation Loans”. Now a group of plaintiffs’ lawyers allege that with the litigation reaching a dangerous stage in other courts, Block negotiated a quick and confidential settlement of the class claims with a group of Chicago plaintiffs’ lawyers who cut the deal without conducting discovery or consulting with experts. The Chicago lawyers heatedly deny that the settlement was collusive; a federal district judge found in their favor, rejecting the objectors’ arguments and approving the settlement, but the objectors have appealed to the Seventh Circuit. (Elizabeth Amon, “Class Action ‘Collusion’ Claimed in H&R Block Appeal”, National Law Journal, Mar. 26) (see also Dec. 3).
April 5 — “Lungren now a paid advocate for his former foes”. Former California Attorney General Dan Lungren since leaving office has been “doing something that has surprised detractors and admirers alike. He’s being paid to help his longtime political adversaries — a group of plaintiffs’ attorneys. Lungren, a Republican, testified late last month that he has earned $204,000 in 11 months as an expert witness and consultant to the Castano group of 60 law firms. The firms are trying to win billions of dollars in lawyer fees for their role in suing tobacco companies.” At the time, Lungren opposed having the state hire private tort firms to sue — “We are simply not selling tickets to a lottery for law firms,” he said in 1997 — but now he testifies that the lawyers’ efforts were vital. “It’s further proof that the tobacco fee awards are so astronomical that there’s enough money for everybody, even Lungren,” said John Sullivan, president of the Civil Justice Association of California, which criticizes litigation excesses. (Bill Ainsworth, San Diego Union-Tribune, March 14 — search on “Castano”).
April 3-4 — Patenting the web? A small Chicago firm named TechSearch holds a patent which it believes entitles it to exclusive rights over some of the basic image-serving processes underlying the World Wide Web, which means that it considers all the rest of us as infringing on its property by publishing sites like, well, like this one. It manufactures nothing and has no lab; instead, its business plan consists of demanding money from companies to “license” their web use, and it has extracted payments in the $30,000-$80,000 range from several big firms including Walgreen and Sara Lee. It has also sued Intel Corporation for libel and slander because an Intel spokesman told the Wall Street Journal that it “exists solely for the purpose of purchasing patents and extorting funds from another company.” (Ian Mount, “Would You Buy a Patent License From This Man?”, eCompanyNow, April). Critics “fault the PTO [Patent and Trademark Office] for approving ‘inventions’ that are obvious, trivial or simply representative of the Internet version of well-known business practices”. (William C. Smith, “Patent this!”, ABA Journal, March). The report that Bill Gates is staking an intellectual property claim to the numbers “0” and “1” is, however, a parody (Microsoft Patents Ones, Zeros”, The Onion). Not a parody: the St. Louis Business Journal purports to sell, for $5 a throw, the right to link to the articles it has made publicly accessible on the Web (iCopyright clearance form).
April 3-4 — Asbestos claims bankrupt W. R. Grace. Another historic name in American industry goes the way of Owens Corning, Armstrong World Industries, GAF and many others. According to the Washington Post, “Grace’s asbestos liabilities largely stem from commercially purchased asbestos added to some of its fire protection products. The company said it stopped adding any asbestos to its products in 1973. Grace to date has received more than 325,000 asbestos personal injury claims and has paid $1.9 billion to manage and resolve asbestos litigation. In 2000, asbestos claims against Grace increased 81 percent from 1999 with even higher increases for the first three months of 2001.” According to Grace and other defendants, most new claims entering the system are filed by persons who have no illness or impairment but seek financial compensation simply for having been exposed to the mineral. “We believe that the state court system for dealing with asbestos claims is broken, and that Grace cannot effectively defend itself against unmeritorious claims,” said company president Paul J. Norris.
As lawyers redirect claims against remaining defendants, each new bankruptcy increases pressure on those still solvent. Leading wallboard maker USG, which says it stopped making products containing asbestos 25 years ago, took an $850 million charge in January to cope with spiraling liability. Three years ago Sealed Air Corporation, maker of bubble wrap, bought a W.R. Grace subsidiary that made plastic packaging; although that subsidiary had never been involved with asbestos, lawyers are now going after Sealed Air on the theory that all of Grace’s liabilities should convey to it along with the business it bought. “To an indeterminate degree, the threat of lawsuits could be driving the widening of spreads between corporate and government bonds, says John Puchalla, a Moody’s economist.” The rising capital premium needed to overcome aversion to legal risk in turn raises the cost of doing business in the United States, the Economist of London points out, in a recent survey of rising American litigation costs (“The people v. America Inc.”, The Economist, March 22).
SOURCES: Sabrina Jones, “W.R. Grace files for bankruptcy”, Washington Post, April 2; “Asbestos Litigation Costs Burden Grace”, March 19; “Lawsuits Cloud Grace’s Future”, March 7; “Alarm Sounded Over Asbestos in Insulation”, Aug. 15, 2000; Tom Shean, “USG Corp. takes $1 billion hit from asbestos suits”, Norfolk Virginian-Pilot, Jan. 12. Among the many other companies facing widening claims are auto parts maker Dana Corp. and building materials maker Georgia-Pacific.
April 3-4 — Trademark litigation hall of fame. “The Detroit-based Love Your Neighbor Corp. has sued a charity, Love Thy Neighbor Fund Inc. of Fort Lauderdale, Fla., for trademark infringement. … Among the allegations is the complaint that Love Thy Neighbor caused Love Your Neighbor to suffer ‘lost sales and profits it would have made but for these wrongful acts.’ At least 40 U.S. organizations use ‘love thy neighbor’ in their names.” (National Law Journal, via Progressive Review, April 2). Update: June 20 (lawyer writes menacing letter to activist who criticized case)
April 3-4 — “State running background checks on new parents”. Bound to happen dept.: “A new state program intended to protect newborn babies runs background checks on their parents to determine whether they have a history of child abuse that resulted in termination of their parental rights.” “The whole idea here is prevention,” said an official with the state’s Family Independence Agency, which certainly boasts an Orwellian name. “We want to identify those parents who have been abusive in the past and try to head off any possible incidents of future abuse.” (AP/Detroit Free Press, March 23).
April 2 — Lawyers (and docs) block cleanup of Gotham crash fraud. New York’s wide-open climate of accident fraud (more) results in some of the highest car insurance rates in the country. But most ideas for doing something about it, such as stiffening penalties for fraud ringleaders and requiring timely notice of claims to automobile insurers so they can better investigate dubious allegations, face likely defeat in the state Assembly in Albany, where trial lawyers are leading donors to the Democratic majority. Nor does it help that organized doctors join with lawyers in resisting attempts to regulate the running up of hugely inflated bills for post-accident therapies, which are then foisted on auto insurers. (Steven Malanga (Manhattan Institute), “Albany’s War on Drivers”, New York Post, March 29).
April 2 — Priest can sue church over circumstances of suspension. A Massachusetts appeals court has reinstated several claims in a lawsuit by a former priest who “charged he was slandered when his diocese made public an alleged extramarital sexual relationship and subsequent suspension.” The Rev. James Hiles had sued the state’s Episcopal diocese after it suspended him following charges of sexual misconduct; a lower court judge threw out much of his suit, citing a longstanding doctrine by which courts are supposed to refrain from interfering in church administration. A state appeals court, while agreeing that Hiles could not sue over his removal as such, reinstated his action against church officials for allegedly conspiring to vilify him, Hiles’s attorney having argued that defamation is a “secular tort” which courts should feel at liberty to address even in a context of church administration. The case now goes back to the lower court. (Denise Lavoie, “Court says case not just a church matter”, AP/San Francisco Chronicle (SFGate.com), Mar. 28; Michael Paulson, “A Brockton ex-rector wins part of suit against diocese”, Boston Globe, Mar. 29).
April 20-22 — Quite an ankle sprain. Michele Nations, 26, who sprained her ankle five years ago when she tripped into a hole at a municipal park in Tucson, has now been awarded $450,000 by a local jury. Nations’ attorney “says the case hinged on the city’s responsibility to post adequate warning about burrowing animals [such as squirrels and gophers] and to provide a safe alternative to dodging holes and caved-in tunnels.” An attorney for the city differs, and calls the outcome astonishing: “You would think in a park — in a natural space — people should have to watch where they’re going.” (April 19: Maureen O’Connell, “Gopher hole may cost city $450K”, Arizona Daily Star; “Jury awards Tucson woman who stepped into hole at a park”, AP/Arizona Republic). (DURABLE LINK)
April 20-22 — Thank you, Your Honor. The May Brill’s Content has a cover story (teaser only online) entitled “Human Portals: How people with an obsession — and a website — are upstaging big media”. It tells how weblogs, link-rich sites regularly updated and often zeroing in on a specialized theme, are the new Big Thing in online media; typically “curated by one person”, according to editor in chief David Kuhn, they “could teach big media portals a lot about engaging their audience”. Happy to read all this, we were particularly pleased to turn to the sidebar feature in which the magazine surveys a group of public luminaries about their favorite websites, which range from eBay (Nora Ephron) to 10KWizard.com (Gretchen Morgenson). And here’s Alex Kozinski, distinguished federal judge on the Ninth Circuit U.S. Court of Appeals, on his favorite: “Overlawyered (overlawyered.com) provides pointers to legal-system horror stories: the accused rapist who pockets disability checks for his ‘sexual compulsion’; the drunk who climbs a voltage tower and sues the utility company when he gets injured; the guy who murders his mom and sues his shrinks for not stopping him. The site is run by Walter Olson, who likes nothing better than reporting on legal overkill, and he’s compiled serious research tools for anyone interested in trends and abuses within the civil litigation system.” Thank you, Your Honor! (DURABLE LINK)
April 20-22 — Comparable worth in Maine. Despite widespread criticism of the idea from economists and others, Maine has enacted new rules opening private employers to a serious threat of legal action if they pay less to a worker of one gender than to a worker of the opposite gender “for comparable work on jobs with comparable requirements related to skill, effort and responsibility”. Some other states have had “comparable worth” or “pay equity” laws on the books, but Maine is the first to enact regulations giving such laws serious teeth. “We won”, said an official with the state AFL-CIO. “The business community has not awakened to the fact that this is going to cost them.” Disagreements are all but inevitable as to whether (say) secretaries’ work should be regarded as just as valuable as that of (say) truck drivers, and the Maine law will allow lawyers to march into such controversies with class action suits for unlimited damages — won’t that be fun? The state chamber of commerce did not oppose the enactment. (“Equal pay advocates tout new state rules”, AP/Bangor Daily News, April 4; “Maine Becomes First State Requiring Pay Equity”, Women’s ENews, April 3 (via Freedom News Daily); Maine Equal Justice Partners, 2000 Docket Report (scroll down to “Pay Equity”)).
SEE ALSO May 17, 2000; Diana Furchtgott-Roth, “Suicide Mission: The Union Push for Comporable Worth”, Capital Research Center Labor Watch, Dec. 1999; Lawrence W. Reed, “Comparable Worth or Incomparably Worthless?”, Mackinac Center, Sept. 6, 1994. The late Clarence Pendleton Jr., chairman of the U.S. Civil Rights Commission, called comparable worth “the looniest idea since Looney Tunes came on the screen” (Simpson’s Contemporary Quotations #519). (DURABLE LINK)
April 20-22 — “Lie-tery winners”. All sorts of basically decent people, from cops to grandmothers, would never think of shoplifting or forging checks but do seem to think it’s okay to lie in lawsuits. “Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial — especially witnesses in tort cases. … the oath has become virtually meaningless,” writes Kirkland & Ellis partner Michael Jones (“Lie-tery Winners”, National Law Journal, March 22).
April 18-19 — Mistletoe dangerous even when absent. LeRoy Crawford says his female boss at the New York Stock Exchange behaved seductively and made remarks such as “if there were mistletoe, I would give you a kiss,” when giving him a Christmas bottle of cologne. Things went from bad to worse, and he now wants $1 million in compensatory damages and $1 million for “special damages as a result of physical and mental injury”. (Peter Noel, “Sex on the floor”, Village Voice, April 11-17).
April 18-19 — Randomness of case assignments questioned. San Francisco assigns cases for pre-trial motions to one of two judges, and it seemed that the plaintiff’s firm of Wartnick, Chaber, Harowitz & Tigerman kept getting lucky by drawing the more favorable judge to hear its asbestos cases. Lucky, indeed: over the past two years, 94 percent of the firm’s cases were assigned even numbers, instead of the odd numbers that would have sent the cases to the other judge. (Dennis J. Opatrny, “Playing the Numbers”, The Recorder, April 9).
April 18-19 — “Guests sue inn for overbooking”. When five Massachusetts couples arrived at Vermont’s romantic Woodstock Inn for an investment club weekend last April, they found the inn had inadvertently overbooked its rooms, and three of the couples had to stay at a local B&B. The inn proprietors were terribly apologetic and treated all five couples to the weekend’s lodging for free, as well as giving them a free dinner. Nonetheless, four of the couples are suing for a sum “substantially in excess of $25,000” in a Boston court. (AP/Boston Globe, April 17).
April 18-19 — Tempest in an arsenic-laced teacup? President Bush deserves credit for standing up to demagogues by pulling back this bad regulation: Steve Chapman, “Who’s really poisoning our drinking water?”, Chicago Tribune, April 12; George Will, “The costs of moral exhibitionism”, Washington Post, April 15; Jason K. Burnett and Robert W. Hahn, Brookings/AEI Joint Center study, “EPA’s Arsenic Rule: The Benefits of the Standard Do Not Justify the Costs”, abstract, Jan. 2001; Mercatus Center (George Mason U.) Public Interest Comment series, Sept. 19, 2000; Michael Kinsley, “Bush is right on arsenic. Darn!”, Washington Post, April 13; Michael Y. Park, “Study: Arsenic Rule Would Have Increased Deaths”, FoxNews.com, April 17; Nick Schulz, “Poisoner-in-Chief Is Saving Lives”, American Spectator Online, April 17; Diane Rehm show transcript (National Public Radio), March 28.
April 17 — Reparations: take a number. National Journal columnist Stuart Taylor Jr. traces the link between demands for compensation for century-old evils such as slavery and colonization and legal battles over liability for decades-ago sales of products like lead paint and asbestos (“Paying Reparations for Ancient Wrongs Is Not Right”, The Atlantic/National Journal, April 11; our take, Reason, Nov. 2000). The group of lawyers mapping out slavery-reparations suits are scheduled to huddle on strategy today in Washington, and say they plan to name businesses as well as the U.S. government as defendants (Jamal E. Watson, “Lawyers plan suit for slavery reparations”, Boston Globe, April 13). The conservative magazine Insight has given uncritically positive coverage to demands for compensation over Japan’s World War II mistreatment of American servicemen, despite the clear laying to rest of such claims by postwar treaty. You’d think victims of the crimes of communism over its long reign would be even better placed to score positive ink in the conservative press, but we seem to hear little about them — not that we would want to load up the reparations bandwagon even further, you understand (Stephen Goode, “New book documents Japanese exploitation”, Insight, undated).
April 17 — A Pulitzer for Dorothy Rabinowitz. The Wall Street Journal editorialist, whose searing commentaries on dubious child-abuse prosecutions have helped expose some of the most glaring injustices to flow from sentimentalism and credulity in our legal system, snags one of this year’s Pulitzer Prizes for her commentaries on American society and culture (Yahoo Full Coverage — Pulitzers). OpinionJournal.com keeps an archive of her media criticism; her articles on abusive prosecution, when online at all, are found at far-flung corners of the web (“A Darkness in Massachusetts” -I-, -II-, -III- (RickRoss.com); more columns on Amirault case; “Through the Darkness” (the Grant Snowden case, forever linked with the name of Janet Reno) (DennisPrager.net); Wenatchee case -I-, -II-).
April 16 — “Woman settles hot pickle lawsuit with McDonald’s”. Or at least its local franchisee: “A woman who claimed she was permanently scarred by a hot McDonald’s hamburger pickle has settled her lawsuit against the restaurant chain. MAR Inc., which does business as McDonald’s in Knoxville, admitted no wrongdoing in the agreement signed by a judge Thursday. Other details of the settlement are to remain confidential. ” (see Oct. 10, 2000) (AP/CNN, April 13).
April 16 — New batch of reader letters. Our correspondents tell why the law makes it perilous to hire a home renovation contractor in New York, ask about buying T-shirts from us, wonder whether Indian-derived place names such as Wichita and Massachusetts are next up for abolition, lament American law’s resistance to the obvious fairness of the loser-pays principle, and hail a Supreme Court decision upholding employment arbitration.
April 16 — Big numbers. It is a truth universally acknowledged that if the injuries resulting from a transportation accident are sufficiently severe, a wealthy business must have been at fault. Teledyne Continental Motors of Mobile, Ala. has agreed to pay $27 million to settle a suit on behalf of survivors of five skydivers killed in the crash of a Cessna, though its attorney said the company’s oil tube design does not cause engine failure as the plaintiffs alleged (Joe Lambe, “$27 Million Settlement in Skydiving Plane Crash”, DropZone.com, March 16; “Poor Preflight Probably Killed Skydivers: NTSB”, Aero-News.Net, June 29, 2000). An Indiana appellate court has upheld a $55 million jury verdict against the Kroger Co. over a truck accident at a company terminal, rejecting the company’s contention that the award was excessive and in conflict with workers’ compensation laws (the injured man, a truck driver, worked for a wholly owned subsidiary of the large grocery chain). (Margaret Cronin Fisk, “Finding No Direct Employment Relationship, Indiana Appellate Court Upholds PI Award”, National Law Journal, March 28). A Los Angeles jury has just voted $55 million against General Tire, a unit of Germany’s Continental Gummi-Werke, over a “tread separation” accident (if you thought those were unique to Firestone, think again). (Myron Levin, Los Angeles Times, April 14; “Jury orders tire maker to pay $55 million”, AP/CNN, April 14). Among the plaintiff’s lawyers in the case was Brian Panish, famed for his 1999 feat in getting another L. A. jury to award $4.9 billion against GM, later reduced to $1.2 billion. And another well-known maker of replacement tires, Cooper Tire, got hammered the same week for $10 million in El Paso (“Jury OKs $10M Award Vs. Cooper Tire”, AP/FindLaw, April 13). Also see Margaret Cronin Fisk, “Two Tire Companies Punctured by Juries”, National Law Journal, April 24, with more details about both tire cases.
April 13-15 — It was the bar’s fault. “A 20-year-old Jamison man, who was shot last summer, says a Warminster bar is partially to blame for the incident. Had he not become drunk from alcohol consumption that night, Martin Joyce’s judgment would not have been impaired, he would not have approached an unknown man for change and he would not have been shot, alleges a suit filed in Montgomery County Court.” (John Corcoran, “Intoxication caused judgment error, suit claims”, Doylestown, Pa. Intelligencer-Record, April 11).
April 13-15 — Anti-Ritalin lawyers still acting out. Despite some early setbacks, tobacco-veteran lawyers including Richard Scruggs, John Coale and Marc Saperstein continue to seek megabucks damages against drugmaker Novartis (formerly Ciba-Geigy) over the widespread prescribing in schools of Ritalin, the drug meant to combat attention deficit disorder, hyperactivity, and related conditions. There’s a strong case to be made against the thoughtless overuse of this drug, but how characteristic of our litigation system that it proposes to take decisions about its use out of the hands of both medical professionals and parents, instead inviting the lawyers to shop around until they find a few sympathetic courts and a jury or two willing (effectively) to ban the drug through punitive damages. PBS “Frontline” covered the issue recently (“Medicating Kids“) and its website includes a section on the litigation (“ADHD Lawsuits“) which points out a noteworthy recent development: on March 8 of this year federal judge Rudi Brewster threw out a suit seeking class-action status on behalf of everyone in California who had used or bought Ritalin, and also “ruled that activities by defendants intended to advance the medical understanding, diagnosis and treatment of ADHD were free speech protected under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.” This latter is significant because efforts by businesses to engage in medical promotion or policy defense of products, trade association activity etc. are now routinely sued over by trial lawyers in themselves (conspiracy! public brainwashing! tobacco all over again!) and anti-SLAPP statutes might prove useful in rebuffing such causes of action.
MORE: Sept. 18 & Sept. 22, 2000; Nancy Shute, “Pushing Pills on Kids?”, U.S. News, Oct. 2, 2000; Shankar Vedantam, “A symptom of the times? ADD, Ritalin focus of suits”, Philadelphia Inquirer, Dec. 11, 2000; Bob Seay, “Ten Questions for the Lawyers”, About.com ADD site, Sept. 16, 2000.
April 13-15 — “2000’s Ten Wackiest Employment Lawsuits”. Gerald Skoning of Chicago’s Seyfarth Shaw compiles an annual roundup of the most bizarre cases in employment law. Among this year’s highlights: a Minneapolis woman took a job in a sex-toy store and then filed a hostile-environment harassment lawsuit because of all the dirty talk she had to listen to; an Ohio court allowed a worker at a mental health facility to proceed with his reverse disability-discrimination claim that he had been singled out for mistreatment as the only employee at the facility without a mental disability; and a Boeing employee claimed that the company’s objection to his working in the nude was a failure to accommodate his religion, shamanism (“2000’s 10 Wackiest Employment Lawsuits”, National Law Journal, March 29).
April 12 — Zero-tolerance spiral. The WSJ‘s OpinionJournal.com “Best of the Web” feature has lately made it a special project to collect reports of zero tolerance excesses, which are fast mounting beyond our ability to record them. F’rinstance, there are the school officials in West Annapolis, Md., who have banned kids from playing tag during recess, citing the school’s “no-touching” policy (Kimberly Marselas, “City school bans students from playing tag”, Annapolis Capital, March 26); and the honor student given an in-school suspension in West Monroe, La., for drawing a GI Joe-style commando with canteen, knife and grenades (Emeri O’Brien, “3rd-grader suspended for drawing”, Monroe, La. News-Star, March 24; “Soldier drawing gets wide attention”, March 27). A 16-year-old student at Legacy High School in Broomfield, Colo. “may be charged with a felony after school officials found an unloaded BB gun in his car.” (Christine Reid, “Student may face felony charge over unloaded BB gun”, Scripps-Howard, April 8). And in the continuing search for ways to build character in the leaders of tomorrow, some favor snitchlines: “Cedar Rapids police are believed to be the first in Iowa to create a student hot line to take tips on illegal activity. Teens who call about classmates they believe to have alcohol, drugs or weapons on school property get $50 if the police recover anything.” (Kate Kompas, “Teen crime hot line offers cash”, Des Moines Register, April 5).
April 12 — “The Last Tycoon”. This Baltimore City Paper profile from last August, which we missed at the time, says contingency fees to Peter Angelos’s law firm topped $100 million for asbestos work on behalf of Bethlehem Steel workers alone, with more riches expected to flow in from fen-phen, lead paint and those supposedly deadly cellular phones. “When it comes to Baltimore’s politics and finances, it seems, almost nothing happens without Peter Angelos. … in 1999, 10 lawyers and lobbyists were registered with the State Ethics Commission on his behalf.” The minority leader of the state house describes the Orioles owner’s power in Annapolis as “absolutely magical” and “amazing … It’s all based on huge amounts of money flowing [from] Peter Angelos’ pocket and into the coffers of the Democratic Party.'” (Molly Rath, Baltimore City Paper, Aug. 16, 2000)(more).
April 11 — Lost his live client, had to substitute dead one instead. In St. Louis, where lots of dead people are registered to vote, “a dead man was listed as the chief plaintiff in a lawsuit filed on Election Day in November,” according to the L.A. Times. “He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge — successfully — to keep city ballot boxes open late. … The lawyer who filed the suit explained the mix-up by saying he had intended the plaintiff to be Robert ‘Mark’ Odom, an aide to a Democratic candidate for Congress.” However, “Odom had voted, without a wait, by the time the suit was filed,” and the papers had been prepared with his name on them. But as California judge William W. Bedsworth suggests, this supposed explanation if anything makes the case more egregious: the lawyer “‘explained’ how he filed a suit on behalf of a dead person by saying that the plaintiff turned out not to have had his rights violated, and the only available person with the same name happened to be dead. And this caused not the batting of an eyelash in St. Louis. No immediate suspension, no call for disbarment, no investigation into how he got a judge to sign this thing”. (“Meet Me in St. Louis”, The Recorder, April 9).
April 11 — Update: “metric martyr” convicted. In the first such prosecution in Britain, greengrocer Steven Thoburn of Sunderland has been convicted of violating a 1985 compulsory metric system laws by selling bananas in pounds and ounces (see Jan. 22) (“‘Metric martyr’ convicted”, The Guardian, April 9; “Bananas” (editorial), Daily Telegraph (editorial), April 10; footrule.org, of which the late Jennifer Paterson (TV’s “Two Fat Ladies”) was an honorary member).
April 30 — Michigan prisoner sues for recognition as Messiah. “A prisoner who claims he is God has sued the U.S. government, the state of Michigan, a book publishing company, a radio program and several others.” The case of inmate Chad De Koven, 43, reflects a more serious problem: in spite of reforms at both the federal and state level that have aimed at curbing unmeritorious suits by those behind bars, “Michigan Assistant Attorney General Leo Friedman heads a division of 19 lawyers who do nothing but handle prison litigation.” (Crystal Harmon, Bay City Times, March 28). Update May 14: judge dismisses case in 22-page opinion.
April 30 — “States Mull Suit Against Drug Companies”. Latest nominee for Next Tobacco designation are the folks who’ve allegedly charged too much for saving our lives: “In an action modeled on their 1998 class action lawsuit against the tobacco industry, at least six states are poised to go to court to try to force pharmaceutical companies to lower prescription prices … Attorneys general in Florida, Georgia, Maine, Massachusetts, Nevada and Texas are among those considering legal action, officials from some of the offices said. … A catalyst for state legal action is Florida businessman Zachary Bentley, who is going from state to state urging state attorneys general to sue drug manufacturers.” Bentley, himself a disgruntled competitor of the drug companies, says they overstate the average wholesale price of many drugs so as to boost what Medicare and Medicaid programs will pay for them. “Under whistleblower and federal False Claims laws, Bentley gets a portion of any settlement that results from what he’s revealed.” (Mary Guiden, Stateline.org, April 2)(more on False Claims Act: July 30).
April 30 — “Radio ad pulled after lawyers object”. Following protests from the state bar association, the Kentucky transportation department last month agreed to stop airing a traffic-safety radio ad based on a well-worn lawyer joke. The joke? “A car full of lawyers turned over right in front of old man Jenkins’ place. He comes out and buries them all. The sheriff asked old man Jenkins, ‘You sure they were all dead?’ ‘Well,’ says Jenkins. ‘Some said they weren’t. But you know how them lawyers lie.”’ The ad urged motorists to slow down so as not to meet a similar fate. (Jack Brammer, Lexington (Ky.) Herald-Leader, March 27).
April 27-29 — Victory in Albany. Unanimous, long-awaited, and devastating: by a 7-0 vote New York’s highest court yesterday rejected the most important elements of the much-hyped lawsuit Hamilton v. Accu-Tek, which seeks retroactively to tag gun manufacturers with liability for criminal misuse of their products. Answering two questions  certified to them by the federal Second Circuit, the jurists of the New York Court of Appeals declined to impose a new legal duty of gun manufacturers toward anyone who might fall victim to post-sale misuse of guns, and also ruled out the application of “market-share liability”, the adventurous theory by which plaintiff’s lawyers were attempting to impose liability on gunmakers without having to show that their guns figured in particular shootings. Both rulings stand as a reproof to activist federal judge Jack Weinstein, who had kept the Hamilton suit alive despite many indications that it had no grounding in existing law. (Joel Stashenko, “Court says gun manufacturers not liable”, AP/Albany Times-Union, April 26; “N.Y. Gun Ruling Could Have National Impact”, AP/FoxNews.com, April 27; John Caher, “New York Rules Gun Manufacturers Not Liable for Injuries”, New York Law Journal, April 27; read full opinion (PDF) — Firearms Litigation Clearinghouse site).
Other judges have lately thrown out of court municipal antigun suits filed on behalf of New Orleans and Miami (Susan Finch, “N.O. gun suit shot down”, New Orleans Times-Picayune, April 4; Susan R. Miller, “Appeals Court Halts Miami-Dade Suit Against Gun Industry”, Miami Daily Business Review, Feb. 15). And the Florida legislature has voted on largely partisan lines, with Democrats opposed, to join 26 other states in spelling out explicitly that cities, counties and other subdivisions of state government have no authority to file recoupment actions against gun makers and dealers over criminals’ misdeeds (“Florida Legislature Votes to Insulate Gunmakers”. Reuters/Yahoo, April 25; see also Charlotte Observer, April 26) (N.C. bill). Unfortunately, judges have recently allowed novel anti-gunmaker suits to proceed in Chicago and Atlanta; and as the gun-control-through-lawyering crowd knows too well, even a few eventual breakthroughs for their side may be enough to ruin this lawful industry (Todd Lighty and Robert Becker, “Gun victims’ lawsuit against firearms industry can move forward”, Chicago Tribune, Feb. 15).
MORE: Jeff Donn, “Maker of the .44 Magnum turns to golf putters and teddy bears”, AP/Minneapolis Star Tribune, April 14 (after the failure of its attempt to cut a deal with its legal tormentors, S&W struggles to stay afloat; one lawsuit had cost the company $5 million just to be dropped from the case); Tanya Metaksa, “Smith & Wesson’s Deal With the Devil”, FrontPage, April 12; Kris Axtman, “Gunmakers not about to run up white flag”, Christian Science Monitor, Dec. 15. Politicians have begun to move away from reflexive antigun sloganeering as election results have made clear that the supposed antigun consensus in American public opinion is no consensus at all (Michael S. Brown, “Gun Control: What Went Wrong?”, FrontPage, April 26).
April 27-29 — “Iowa Supreme Court says counselors liable for bad advice”. “A high school guidance counselor can be held responsible for giving wrong advice to a student that damages the student’s educational goals, the Iowa Supreme Court ruled Wednesday.” Katie, bar the door! (AP/CNN, April 26).
April 26 — “Legal action prolongs whiplash effects: experts”. Yet another study, this time from researchers at the University of Adelaide, Australia, finds that after auto accidents people experience more pain and quality-of-life deterioration if they are pursuing litigation (Australian Broadcasting Corporation, April 12) (see April 24, 2000). Also see Kevin Barraclough, “Does litigation make you ill?” British Medical Journal, March 31.
April 26 — Judge offers “court phobia” defense. Court-appointed special masters found that Los Angeles County Judge Patrick Murphy took more than 400 days of unjustified sick leave at taxpayer expense since 1996. They were not “impressed with what they called his ‘evolving defense,’ which began with claims that his political opponents were behind the accusations and ‘matured’ into a defense that he was disabled because of a ‘phobic reaction to judicial activities.'” (Sonia Giordani, “Los Angeles Judge’s ‘Court Phobia’ Defense Falls Flat”, The Recorder, April 12).
April 26 — The law must be enforced. In St. Cloud, Florida, 12-year-old Derrick Thompson tried to cross a street against the traffic and got hit by a truck, to onlookers’ horror. Dazed and bleeding, Derrick got another surprise minutes later when town police handed him a ticket for jaywalking. (Susan Jacobson, “Ticket seen as insult to injury”, Orlando Sentinel, April 13).
April 25 — While you were out: the carbonless-paper crusade. Some people are convinced their health has been damaged by ordinary workplace exposure to the chemicals present in carbonless paper, the material used in pressure-sensitive memo slips and similar office supplies. (“Carbonless Copy Paper — The Injury and Information Network”, carbonless.org). Although the product’s makers, such as Appleton Papers and the Mead Corporation, deny that there’s anything to be feared from working with receptionist’s pads or other multiple forms, a number of news reports have uncritically accepted the idea of a causal link between the paper and the ills complained of — to MSNBC’s Francesca Lyman, for example, “probably thousands” have fallen victim to the scourge, showing how “a seemingly benign product could leave a trail of damage”. (“The carbonless paper caper”, MSNBC, Jan. 17 (page now removed, but GoogleCached); see also Keith Mulvihill, “Sick of Paperwork? Some Office Workers Say It’s the Paper”, New York Times, Sept. 26, 1999 (reg); Tracy Davidson, WCAU-TV Philadelphia “Consumer Alert“). Inevitably, those who feel victimized are filing suits against companies that manufacture the product.
None of the activists have figured more prominently in news stories than Brenda Smith of Virginia Beach, Va., who filed suit in 1993 over a variety of symptoms including “headaches, sinus and allergy problems, skin and eye irritation, sore throats, respiratory infections, bronchitis,” and others, which she believes resulted from exposure to the chemicals in carbonless paper at her job. “The potential for litigation from worker’s compensation to product liability is huge,” she told The American Enterprise. However, the magazine also unearthed one extra little fact which the earlier press reports had neglected to mention: that “the health-afflicted Brenda Smith was addicted to cigarette smoking, which she admitted to TAE when we bothered to ask. Apparently some reporters didn’t think that fact advanced their story.” (“Scan”, The American Enterprise, April/May (scroll down to “Smoking Gun”)) See also Bob Van Voris, “Scents or Nonsense?”, National Law Journal, Nov. 6, 2000. NIOSH review (PDF — very long)(& see letter to the editor, May 18).
April 25 — Value of being able to endure parody without calling in lawyers: priceless. When MasterCard sent its lawyers to do a cease and desist routine on rec.humor.funny over a tasteless parody of its “Priceless” ad campaign, list founder Brad Templeton posted this tart riposte on NetFunny.com (April).
April 24 — Put the blame on games. The lawyer for survivors of a murdered Columbine teacher has sued 25 media companies, mostly makers and distributors of video games whose violence he says incited the perpetrators of the crime. Attorney John DeCamp claims to be “100 percent on the side of the First Amendment” when he isn’t filing actions like this, and equally predictably says it’s not really about the money, which isn’t keeping him from demanding that the defendants fork over $5 billion-with-a-“b”. (Kevin Simpson, “Slain teacher’s family launches suit aimed at media violence”, Denver Post, April 21). Update Mar. 6, 2002: judge dismisses case.
April 24 — Pennsylvania MDs drop work today. “Hundreds of physicians from Southeastern Pennsylvania plan to shut down their offices and leave their hospital posts [Tuesday] to go to Harrisburg to insist that lawmakers enact insurance-tort reforms and give them relief from soaring malpractice-insurance premiums. … According to the Pennsylvania Medical Society, obstetricians in the Philadelphia region pay an average of $84,000 yearly in malpractice insurance, while the same doctors in New Jersey pay about $58,000, and in Delaware, $52,000. Neurosurgeons pay $111,000 for coverage in Philadelphia. If their practices were in New Jersey, the rate would be about $75,000.” (see Jan. 24-25). Timothy Schollenberger, president of the state trial lawyers’ association and evidently a man given to bold denials, says the protest is misplaced: “tort law is not a significant factor in making [malpractice] premiums rise or fall”. Kind of like an oil sheik denying that OPEC crude price hikes have anything to do with the cost of gas at the pump, isn’t it? (Ovetta Wiggins, “Doctors to protest premium increases”, Philadelphia Inquirer, April 23).
April 24 — Bush’s environmental centrism. The press has decided to make President Bush’s supposed anti-environmentalism the story du jour, but in fact “on almost every environmental issue, Bush has upheld the Clinton-Gore position.” (Gregg Easterbrook, “Health Nut”, The New Republic, April 30).
Among Bush proposals to meet with support from many centrists and Democrats is the one for a year-long moratorium on pressure groups’ use of endangered-species lawsuits to drive the agenda of the Fish and Wildlife Service; see Bruce Babbitt, “Bush Isn’t All Wrong About the Endangered Species Act,” New York Times, April 15 (reg); Michael Grunwald, “Bush Seeks To Curb Endangered Species Suits”, Washington Post, April 12 (“The litigation explosion has been so bad, we couldn’t even list species that were going over the edge,” said Jamie Rappaport Clark, who directed the service under Clinton. “We asked the courts to let us set our own priorities, but they wouldn’t budge.”)(see Dec. 4, 2000).
April 24 — Washington Post editorial on cellphone suit. We’ve appended highlights from yesterday’s refreshingly blunt Post editorial (“More Dumb Lawsuits”) to the item below on the Angelos onslaught against mobile telephony. Is it too much to hope that the New York Times or L.A. Times will someday start being even half as editorially sensible about litigation issues as the Post is?
April 23 — Sorry, wrong number. As expected, Baltimore tort tycoon Peter Angelos filed suit against 25 defendants including Nokia, Motorola, Ericsson, Verizon, Sprint and Nextel accusing them all of concealing the brain-frying horrors of cellular telephone use. “The suits do not claim that anyone has actually suffered an illness.” (Peter S. Goodman, “Angelos Suits Allege Cellular-Phone Danger”, WashTech.com/ Washington Post, April 19). In an editorial bluntly titled “More Dumb Lawsuits”, the Washington Post declares, “There is now a new way to satisfy the bemused foreigner who asks why a nation so proudly founded upon the rule of law is marked by such contempt for lawyers. Just tell the foreigner about the litigation against cell-phone makers that Peter Angelos began on Thursday.” Moreover, Angelos is demanding a remedy (free headsets) that “makes no sense … Mr. Angelos is seeking to replace a situation in which consumers are free to buy headsets if they choose with one in which they indirectly are forced to pay for them — and to pay Mr. Angelos’s fees into the bargain.” (April 23). Update Oct. 1-2, 2002: court dismisses case.
April 23 — Seventh Circuit rebukes EPA. A U.S. Court of Appeals has rebuked the Environmental Protection Agency, dismissing the Superfund suit in which the agency sought permission to enter and dig up the 16-acre property of John Tarkowski, a disabled and indigent building contractor in Wauconda, Ill. Tarkowski’s habit of accumulating surplus materials, from which he has constructed his house, has annoyed many of his upscale neighbors, but repeated investigations have failed to find any serious contamination on his property. Rejecting the government’s arguments, the appeals court held that EPA “sought a blank check from the court. It sought authorization to go onto Tarkowski’s property and destroy the value of the property regardless how trivial the contamination that its tests disclosed.” And: “In effect, the agency is claiming the authority to conduct warrantless searches and seizures, of a particularly destructive sort, on residential property, despite the absence of any exigent circumstances. It is unlikely, even apart from constitutional considerations, that Congress intended to confer such authority on the EPA.” (“U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy Elderly Wauconda Man’s Property”, press release from Mayer, Brown & Platt (whose Mark Ter Molen represented Tarkowski pro bono), Yahoo Finance/Business Wire, April 20).
April 23 — If I can’t dance, you can keep your social conservatism. The town of Pound in Virginia’s coal-mining western corner has an ordinance on the books that bans public dancing without a permit. Bill Elam is defying the law by operating his Golden Pine nightclub, while local clergy hope the town sticks to its guns: “I can never see a time when dancing can be approved of, especially with people who are not married,” said one. (“Virginia town outlaws dancing”, Nando Times, April 16).
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