Posts Tagged ‘baseball’

Senate passes Class Action Fairness Act

By a 72-26 vote, with 18 Democrats and Vermont’s Jeffords joining a unanimous roster of Republicans, the Senate has approved this bill, which would 1) move most interstate class actions from state into federal court and 2) regulate various practices such as the use of coupon settlements. House approval and a Presidential signature are expected in short order, giving the returning Bush administration its first major legislative victory and dealing a rare defeat to the Association of Trial Lawyers of America. Such defeats have been so rare that CAFA, though hardly radical and not a little watered down from earlier versions, probably constitutes the most ambitious tort-reform measure to pass at the federal level in recent decades. (New York Times).

For some of this site’s past posts on the bill, see Apr. 25-27, Jun. 12-15 and Jun. 25, and Sept. 28, and Oct. 21, 2003. Jim Copland and others have wall-to-wall coverage of the new developments at Point of Law, including posts on the roll call; background (including links to four past Manhattan Institute studies on the issue); the “magnet-court” problem; and last but not least, a new Manhattan Institute study by Yale law prof George Priest taking a closer look at some widely circulated statistics about class settlements, and opining that CAFA would be a useful if limited first step in addressing the problems raised by such litigation.

Elsewhere on the web, some plaintiff’s-side observers are pointing out that the new rules ushered in by the bill will likely be actively beneficial to the practice of some lawyers who specialize in filing such suits (though detrimental to others’), and that some businesses that get sued are likely to find their position worsened (not only may they find it harder to enter cheap coupon settlements, for example, but they may face a proliferation of one-state-only class actions). See, in particular, Evan Schaeffer and C. E. Petit (“Scrivener’s Error”). Meanwhile, Dwight Meredith perhaps surprisingly “do[es] not oppose the proposed reform of class action suits” but believes its GOP sponsors are being inconsistent, and Bill Childs wonders if there’s more to the debate besides money. Finally, Baseball Crank points out a possibly headache-making technical aspect of the bill.

Neil Pakett v. Phillies

You may recall the Center for Justice & Democracy’s Zany Immunity Law Awards criticized the three states that provided immunity to baseball stadiums for spectator injuries. The immunity is based on the common-law doctrine of assumption of the risk, made explicit on the back of baseball tickets and announcements at baseball games. Nevertheless, dentist Neil Pakett is suing the Phillies for compensation for injuries he received when he unsuccessfully tried to catch a foul ball hit by shortstop Jimmy Rollins. The case has been thrown out by the trial court, but Pakett is arguing that the fact that the Phillies built a backstop creates a duty for them to have built a backstop that would’ve protected him. The Phillies will likely win, but they’ve sure spent a great deal of money defending themselves against the eventuality that they have a judge who wants to make new law, and a statutory immunity law would’ve provided a clearer rule that would have discouraged the suit in the first place. (Mark Levy, AP/LA Times, Feb. 4). Update: Phillies’ win affirmed.

Yogi Berra v. “Sex In the City”

By reader acclaim: “The Yankee legend has filed a $10 million lawsuit against Turner Broadcasting Systems for using his name in a ‘hurtful’ advertisement for its ‘Sex and the City’ reruns.” (Dareh Gregorian, “Unberrable ‘Sex'”, New York Post, Feb. 2; “Yogi Berra sues for $10M over sex ad”, CNN/Money, Feb. 3; complaint at The Smoking Gun). At his Sports Law blog, Greg Skidmore, our guestblogger, thinks there may be something to Berra’s claim (if not its $10 million demand) under the current state of the law.

Triple Play of Lawsuits

As I reported over on Sports Law (Feb. 1) and is also reported on Common Good (scroll down), disgruntled parents should beware the potential wrath of their children’s coaches. Parent Marc Martinez was not happy with his son’s baseball coach, John Emme, and filed a lawsuit against him “alleging that [coach Emme] hurt his son’s chances at a college baseball scholarship” by forcing him to throw too many pitches and by making “derogatory comments about [his] pitching ability to potential college coaches.” ( Martinez’s son had a 4-7 record that year.) The case received both local and national media attention and Martinez was not kind in his descriptions of Emme. So, Emme countersued for damage to his reputation. The jury favored Emme, dismissing Martinez’s claims against him and awarding the coach $700,000. Said one juror, “I think this should send a message to parents.” (Dave McKibben, “Corona del Mar High Coach Big Winner in Slander Suit,” L.A. Times, Jan. 28).

Center for Justice & Democracy’s Zany “Zany Immunity Law Awards”

Many farmers use anhydrous ammonia as fertilizer, because it provides vital nitrogen nutrients to the soil. The combustible material is produced in Louisiana, and then shipped to the Midwest on barges or through pipelines, and then stored on tanks on farms. However, ammonia is also useful for making illegal methamphetamines, and thefts are a regular problem. (KOMU-TV, “Law Officers Fight Ammonia Thefts”, May 19). If a thief injures himself tampering with an ammonia tank, should he be able to sue the farmer for the injury? Three states, Kansas, Missouri, and Wyoming, say no, and provide immunity for those who store, handle, or own ammonia equipment from suit by thieves. Legislatures are considering the issue in other midwestern states.

The misnamed anti-tort reform Center for Justice & Democracy has noticed the success of the ATRA’s judicial hellhole campaign (Dec. 15; Dec. 3, 2003), and decided to respond with its own report, the “Zany Immunity Law Awards”, intended to single out “special interests” who opportunistically subvert the legislative system to get improper immunity from liability. The cover shows a legislator receiving a statuette, cash in his pocket, and roses with a ribbon labeled “Sleaziest Legislation.”

Exposing sleazy special-interest immunity laws is a noble sentiment–but it’s a sure sign of how few and far between such laws are that CJD singles out the sensible anhydrous ammonia immunity laws for its top ten list. The CJD incorrectly blames the law on a supposed “anhydrous ammonia business lobby”; in fact, it’s groups like the Michigan Farm Bureau that push for laws like Michigan S.B. 786. Indeed, the only group to oppose such laws? Trial lawyers’ lobbying groups. See also Kelly Lenz, “Fertilizer law to help farmers”, Farm and Auction, Jun. 12, 2002.

How ridiculous are the CJD awards? One of the top ten “zany immunity laws” refers to “immunity” granted to placebo manufacturers and distributors. Except the immunity in question isn’t immunity–it’s an exception to a criminal statute prohibiting the sale of fake drugs! E.g., Fla. Stat. 817.564(6)(a). (This is the only appearance of the word “placebo” in the Florida Code. It’s telling that CJD omits the statutory cite in its footnotes.) Perhaps this law is zany, but it’s hardly an example of a special interest group buying sleazy legislation that damages consumers. A subject of a research test who is injured by adulterated placebos (has this ever happened?) will still have a cause of action.

Read On…

Fieger does it again

We’ve previously covered the exploits of Geoffrey Fieger (Jul. 24; May 31, 2001). Fieger is nationally known for defending Dr. Kevorkian, but he’s also had over $100 million in jury verdicts thrown out because of his outrageous behavior in court. Fieger’s strategy is to inflame the jury, get a huge verdict, and then hope it stands up in response to the inevitable defense motion for new trial and appeal. Most recently, in a cerebral palsy case Fieger sought to blame on a Dr. Ronald Jordan, he delivered the following in a closing argument:

“Please, please, nurses,” Fieger said in his closing arguments, “I’m a little baby, I want to play baseball, I want to hug my mother, I want to tell her that I love her. Help me. Please help me to be born.”

Judge Lawther “called it a ‘performance far beyond the bounds of theatrical license,’ designed to appeal to the jury’s natural sympathy through passion and prejudice–two factors the law says should not enter into verdicts.” (Compare: John Edwards’s closing argument in a similar case discussed in a New York Times article we linked on Jan. 31.) A Cuyahoga County jury voted 6-2 to award $30 million to Walter Hollins in May, and the judge tossed the verdict last week. Fieger defends his closing as “his specialty.” Just so. (James F. McCarthy, “Judge rejects $30 million for malpractice”, Cleveland Plain Dealer, Aug. 27). (Updates: more on case, Oct. 11; verdict reinstated, Nov. 20).

“Gatekeeper awards” from Common Good

Common Good, the advocacy group chaired by author Philip K. Howard (The Death of Common Sense, The Collapse of the Common Good) and whose motto is “Reforming America’s Lawsuit Culture”, on Apr. 8 announced its first “Gatekeeper Awards” honoring judges who throw out lawsuits that would better never have been filed. Among the cases praised: a Pennsylvania Supreme Court opinion excluding scientific testimony to the effect that Doritos, the snack food, is intrinsically unsafe in texture; a Virginia high court ruling upholding assumption of risk in the case of a baseball spectator hit by a ball; a Third Circuit decision holding that a “public school third-grader cannot sue for being prevented from soliciting classmates’ signatures for a petition opposing a voluntary class trip to the circus”; an Eighth Circuit opinion excluding punitive damages in the case of a patently accidental air crash; and the Nevada Supreme Court’s ruling (see Nov. 7) that a passenger cannot sue a homeowner over injuries sustained when a car crashed into a flowerbed.

Update: Cubs settle with rooftop owners

The Chicago Cubs have settled their longstanding dispute with owners of neighboring buildings over what the Cubs considered unlawful viewing of baseball games from the buildings’ rooftops. (See “The right not to be looked at?”, Dec. 18-19, 2002). The rooftop businesses agreed to share revenue with the team, in most cases amounting to 17 percent of their gate, as compensation for availing themselves of the disputed photons. (“Cubs reach agreement with last rooftop business”, AP/ESPN, Apr. 9). Dan Lewis comments at Armchair GM (Apr. 9).

Willie Gary ethics trial begins tomorrow

Following up on our Apr. 1-2, 2002 coverage: “Gary and one of his law partners, Madison McClellan, are charged with multiple ethics violations involving their representation of baseball legend Roger Maris’ family business during a 2001 trial against the world’s largest beer brewer, Anheuser-Busch.” Trial is scheduled for tomorrow in Ocala “on allegations including falsifying evidence, making false statements, using profanity, improperly appealing for the jury’s sympathy and insulting opposing attorneys.” (Pat Moore, “Ethics trial begins Tuesday for noted lawyer Willie Gary”, Palm Beach Post, Jan. 4)(via Legal Reader, who had it from How Appealing) On Gary’s flamboyance, see Dec. 23 as well as links from the Apr. 1-2, 2002 item. Updates Jan. 7: judge dismisses case against Gary and partner on second day of trial; Sept. 5, 2005: underlying case and related litigation settle for sum upwards of $120 million.