Latest development in the affair that brought unwelcome scrutiny to former Calif. governor Gray Davis and his ties to the Litigation Lobby (see Dec. 5, 2000 and Jun. 22-24, 2001): “Court-ordered arbitration secretly delivered a $23.7 million payday to attorneys who successfully battled the state over smog fees wrongfully charged to 1.7 million motorists. The award,” down from an original $88.5 million, “represents as much as arbiters could give the team of attorneys led by a high-powered San Diego law firm, under limits imposed by a Court of Appeal ruling in 2002.” State officials had unsuccessfully sought to keep the earlier award under wraps, and attorney General Bill Lockyer was not exactly at pains to publicize this one: “The California Attorney General’s office, after rebuffing repeated inquiries into the status of the arbitration, this week confirmed that a ruling had been issued but refused to release any more information, citing attorney-client privilege.” The Schwarzenegger administration, however, responded promptly to an open-records request. (Michael Gardner, “Lawyers get $23.7 million in smog-fee fight”, San Diego Union-Tribune, Aug. 20).
Calif. Attorney General Bill Lockyer says he’s filing an antitrust suit against Southern California grocery chains alleging that their mutual-aid strike agreement violates the federal Sherman Act. His spokesmen deny (cue laughter) that he’s trying to lend a hand to the sagging fortunes of the United Food & Commercial Workers in its 3 1/2 month old labor dispute with the chains. (“State to file antitrust suit in grocery strike”, San Francisco Chronicle, Jan. 31). “It appears the attorney general’s office is seeking a legal precedent that would scotch strike-assistance agreements in general.” Meanwhile, the Los Angeles city council is expected to vote this month on a bill which would prevent Wal-Mart from opening its SuperCenters within city limits, thus excluding the main source of competition pressing grocery prices lower. We’re sure that isn’t meant as a favor to the UFCW, either. (Shirley Svorny, “Banning Wal-Mart May Prove Costly” (commentary), Los Angeles Times, Jan. 30)
“In a stunning, courageous admission that they no longer have any serious work left to do, attorneys general in two dozen states recently sent a letter to the Motion Picture Association of America asking that Hollywood minimize smoking in movies so youngsters won’t be gulled into lighting up.” (Nick Gillespie, “Tinselectomy”, Reason, Aug. 29). Check out Gillespie’s list of other destructive behaviors that Hollywood glamorizes, especially the last item. Supposedly the self-censorship will be voluntary: “We’re not saying any law has been broken,” said Tom Dresslar, a spokesman for California Attorney General Bill Lockyer, a rather remarkable admission since there is precisely zero reason for any filmmaker to pay attention to this particular grouping of law enforcement functionaries other than the fear that they could cause some sort of legal trouble in the future unless placated. (“States Ask Hollywood to Cut Film Smoking “, AP/Fox News, Aug. 27).
“The latest settlement in litigation over California’s energy crisis includes tens of millions of dollars in attorney fees to be shared by a handful of politically savvy plaintiffs’ firms. … Besides Lieff Cabraser, private firms that will collect a share of the fees include Kiesel, Boucher & Larson of Beverly Hills, Calif., and Girardi & Keese; Engstrom, Lipscomb & Lack; and O’Donnell & Shaeffer, all of Los Angeles. ” (Jeff Chorney, “Powerful Payday”, The Recorder, Jul. 8).
Wildlife management, species protection, 2003: “U.K. roundup” (licensing of exotic pet fish), Jun. 12-15. 2001: “False trail of missing lynx“, Dec. 18; “Pricing out the human species“, Aug. 22-23; “Stories that got away“, Jul. 23; “Bush’s environmental centrism“, Apr. 24. 2000: “Endangered list“, Dec. 4; “Snakes’ rights not always paramount” (man killed snake in self-defense), Aug. 18-20; “‘Imperfect laws add to danger of perfect storms’“, Aug. 10. 1999: “Property owners obliged to host rattlesnakes“, Oct. 12; “Knock him over with a feather” (migratory bird contraband laws), Sept. 11; “Mow’ better ADA claims” (claim of “exotic prairie plants” by resident who didn’t want to mow her lawn), Jul. 26.
“Bounty-hunting in New Jersey“, Jun. 10-11, 2003.
“‘State is suing ex-dry cleaners’” (Calif., Superfund), May 27, 2003.
“Suing ’til the cows come home“, May 20, 2003.
“U.K. roundup” (global warming suits), Jun. 12-15, 2003; “Tort suits over global warming“, Feb. 6-9, 2003; “Global warming suit?“, Jul. 31, 2001 (& Aug. 10-12); “Plus extra damages for having argued with us“, Aug. 19, 1999.
“California’s hazardous holiday” (fireplaces), Dec. 27-29, 2002; “Chestnuts-roasting menace averted“, Dec. 24-27, 2001; “Put out that match” (agricultural burning, residential wood burning), Feb. 28-Mar. 1, 2001.
“Right to know” laws, 2002: “California’s hazardous holiday” (acrylamide), Dec. 27-29; “‘Lawyers who sue to settle’“, Nov. 4-5; “Chocolate, gas-pump fumes, playground sand and so much more“, Oct. 15; “‘Greedy or Just Green’“, Mar. 13-14. 2001: “There’ll always be a California” (chocolate and Prop 65), Dec. 4; Letter to the editor (lutefisk exempted from toxic-substance status in Wisconsin), Nov. 29; “Be somewhat less afraid” (nuclear plant terrorism), Nov. 30-Dec. 2; “‘U.S. Debates Info on Chemical Hazards’” (“right to know” and terrorism), Nov. 12; “Chemical-plant vulnerabilities: read all about them“, Oct. 1. 1999: “Lockyer vs. keys” (California attorney general declares brass a toxic hazard), Nov. 2.
“How much did you say that Indian legend was worth?“, Sept. 25-26, 2002; “Final innings for Kennewick Man“, Sept. 27-28, 2000; “Free Kennewick Man!” (pre-Columbian remains), Oct. 11, 1999.
Low exposures, 2002: “A breast-cancer myth“, Sept. 3-4; “‘Unharmed woman awarded $104,000’” (Canada), May 6. 2001: “There’ll always be a California” (chocolate and Prop 65), Dec. 4; “‘Incense link to cancer’“, Aug. 27-28; “‘Candles might be polluting your home, EPA says’“, Jun. 19; “While you were out: the carbonless paper crusade“, Apr. 25 (& letter to the editor, May 18); “Hunter sues store over camouflage mask“, Jan. 12-14. 2000: “‘Airbag chemical on trial’“, Aug. 14; “Multiple chemical sensitivity from school construction“, Jul. 3-4; “Feelings of nausea? Get in line” (Baton Rouge chemical spill), Jan. 26-27. 1999: “Lockyer vs. keys” (California attorney general declares brass a toxic hazard), Nov. 2.
Zoning, land use, 2002: “How much did you say that Indian legend was worth?“, Sept. 25-26; “‘Preserving’ History at Bayonet Point“, Feb. 15-17; “Planners tie up land for twenty years“, Jan. 18-20. 2001: “Columnist-fest” (John Tierney on NYC battle over IKEA site), May 25-27; “Lessons of shrub-case jailing“, May 17; “Perils of regulatory discretion“, Jan. 24-25. 2000: “Cornfield maze as zoning violation“, Oct. 30. 1999: “Great moments in zoning law” (rescued pets from storm, charged with running unlawful animal shelter), Nov. 22.
“Going to blazes” (logging and Western fires), Jul. 1-2, 2002; “Credibility up in smoke?” (same), Jul. 12-14, 2002; letter to the editor, Oct. 23.
Industrial farming: “‘Tampa Judge Tosses Out Class-Action Suit Against Hog Company’“, Jul. 3-9, 2002; “RFK Jr. blasted for hog farm remarks“, Apr. 15, 2002 (& Apr. 17, Apr. 19-21, letter to the editor and editor’s response, Apr. 19); “Chickens are next“, Feb. 6-7, 2002; “Judge throws out hog farm suit“, May 7, 2001; “Trial lawyers vs. hog farms“, Dec. 7, 2000; “This little piggy got taken to court“, Sept. 12, 2000; “Not so high off the hog“, Oct. 4, 1999.
“‘San Francisco Verdict Bodes Ill for Oil Industry’“, Jun. 11-12, 2002.
“‘Legal fight over chemical spill ends with whimper’” (W.V.), Jun. 7-9, 2002.
“Flowers, perfume in airline cabins not OK?” (Canada), May 17-19, 2002; “Scented hair gel, deodorant could mean jail time for Canadian youth“, Apr. 24, 2000.
“The mystery of the transgenic corn“, May 14-15, 2002.
“Erin Brockovich”, 2002: “‘Erin Brockovich, the Brand’“, Apr. 29-30. 2001: “Exxon Brockovich vs. Erin Valdez“, Nov. 15; “NBC mulls Brockovich talk show“, Nov. 6, 2001; “Brockovich a heroine? Julia really can act“, Mar. 23-25. 2000: “Errin’ Brockovich?“, Dec. 21, 2000; “‘All about Erin’“, Oct. 12; “More woes for ‘Brockovich’ lawyers“, Jun. 22-25; “Brockovich story, cont’d: the judges’ cruise“, Apr. 18; Brockovich story breaks wide open“, Apr. 17; “Plume of controversy“, Apr. 14-16; “Hollywood special“, Mar. 30. 1999: “A Civil Action II?“, July 7.
Trial lawyer/enviro alliance? “RFK Jr. blasted for hog farm remarks“, Apr. 15, 2002 (& Apr. 17, Apr. 19-21, letter to the editor and editor’s response, Apr. 19); “‘Working’ for whom?” (Environmental Working Group), May 23, 2001; “Judge throws out hog farm suit“, May 7, 2001; “‘Bogus’ assault on Norton“, Jan. 18, 2001; “Trial lawyers vs. hog farms“, Dec. 7, 2000.
“‘Former clients sue attorney O’Quinn’” (Kennedy Heights case), Apr. 8-9, 2002.
“Arsenic: one last dose?“, Mar. 22-24, 2002; “The view from Arsenictown“, Sept. 11, 2001; “‘The arithmetic of arsenic’“, Aug. 17-19; “Bush’s environmental centrism“, April 24; “Tempest in an arsenic-laced teacup?“, Apr. 18; “‘Bogus’ assault on Norton“, Jan. 18; “The Times vs. Gale Norton“, Jan. 15; “Ecology and economy“, Jan. 5-7, 2001.
“Liability concerns fell giant sequoia“, Mar. 12, 2002.
“Environmental lawsuits vs. military readiness“, Jan. 2-3, 2002.
“Overlawyered schools roundup” (environmental impact statement for teacher layoffs?), Dec. 7-9, 2001.
“Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001.
“States lag in curbing junk science“, May 29, 2001.
“‘Family awarded $1 billion in lawsuit’” (Louisiana land contamination), May 24, 2001.
“Prospect of $3 gas“, May 10, 2001.
Who needs power anyway?: “Sweetness and light from Bill Lockyer“, Jun. 1-3, 2001 (& see June 8-10, June 22-24); “California electricity linkfest“, Mar. 26, 2001; “Brownout, Shivers & Dim, attorneys at law“, Oct. 11, 2000; “Worse than Y2K?” (EPA/DOJ suit against coal-burning utility plants), Nov. 18-19, 1999.
“Seventh Circuit rebukes EPA” (Superfund search and seizure), Apr. 23, 2001.
Attorneys’ fees: “Stories that got away” (Endangered Species Act suits), Jul. 23, 2001; “Losers should pay” (columnist Thomas Sowell; injunctions, bonding requirements), Aug. 4-7, 2000; “Marbled Murrelet v. Babbitt: heads I win, tails let’s call it even” (“one-way” fee shifts), Sept. 8, 1999 (& see National Law Journal, Dec. 14, 1999).
“Enviro litigator: debate belongs in Congress, not courts“, Dec. 29, 2000-Jan. 2, 2001.
“Federal power over mud puddles?” (wetlands case), Nov. 28, 2000.
“From the evergreen file: cancer alley a myth?“, Nov. 8, 2000.
“‘A Civil Action’ and Hollywood views of lawyers“, Jun. 20, 2000.
“Don’t cooperate” (lawyers’ advice re local health survey), Jun. 9-11, 2000.
“This side of parodies” (“dihydrogen monoxide” parody), May 10, 2000.
“Emerging campaign issue: ‘brownfields’ vs. Superfund lawyers“, Apr. 4, 2000; “Mayors: liability fears stalling ‘brownfields’ development“, Feb. 26-27, 2000.
“Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999.
“Weekend reading: evergreens” (Race car great Bobby Unser’s snowmobiling rap), Dec. 3-5, 1999.
“Leave that mildew alone” (EPA considers mildew-proof paint to be pesticide), Nov. 30, 1999.
“Flag-burning protest requires environmental permits” (one for smoke, one for fire), Nov. 3, 1999.
“A mile wide and an inch deep” (EPA considers Platte River impaired because sun heats it up), Oct. 15, 1999.
“Careful what you tell your lawyer” (feds demand waiver of lawyer-client confidentiality in environmental cases), Sept. 14, 1999; “Overlawyered skies not always safer” (environmental audits and other “self-critical analysis”), Jul. 19, 1999.
“Tainted cycle” (class action over infectious bacterium in Milwaukee water supply), Sept. 2, 1999.
Articles by Overlawyered.com editor Walter Olson:
“Hollywood vs. the Truth” (“Civil Action” movie), Wall Street Journal, December 23, 1998.
“Lawyers with Stethoscopes: Clients Beware“, Manhattan Institute Civil Justice Memo # 26, June 1996.
March 10-11 — “Burglars to be banned from suing victims”. United Kingdom: “Burglars who are injured while committing a crime are to banned from suing their victims for compensation. David Blunkett, the Home Secretary, has bowed to public pressure after the outcry over the case of Brendon Fearon, the burglar who is trying to sue Tony Martin for £15,000 after being shot while breaking into his home.” (David Bamber, Daily Telegraph, Mar. 9). (DURABLE LINK)
March 10-11 — Clear Channel = Deep Pocket. “With damage claims in the Rhode Island fire expected to run up to $1 billion, two lawyers representing victims have set their sights on a potential defendant with very deep pockets: Clear Channel Communications. The broadcasting giant owns WHJY-FM, a Providence radio station that ran ads for the Great White concert at The Station that ended moments into the first song when pyrotechnics set off by the band ignited the nation’s fourth-deadliest fire. A popular disc jockey at WHJY, Michael Gonsalves, introduced Great White and was among the 99 who died in the fire or from injuries suffered in the blaze. The two Providence lawyers, who between them represent about a dozen victims, said yesterday their expected lawsuits will almost certainly name Clear Channel as a defendant. The company, the largest operator of radio stations in the country, has assets that far outstrip those of the 14 defendants who were named in the only lawsuit filed so far.” (Jonathan Saltzman, “R.I. fire victims’ lawyers eye firm”, Boston Globe, Mar. 8). (DURABLE LINK)
March 10-11 — New Medicare drug benefit? Link it to product liability reform. “Even drugs like aspirin, which cause hundreds of deaths each year, could not meet the safety standards patients expect today,” argues Scott Gottlieb of the American Enterprise Institute. ” … But putting [older] patients on the pills they need means we need to prepare to tolerate more side effects or tolerate more lawsuits. Litigation should not be a cost of commerce when government puts itself in the business of pushing pills. … Without product liability reform, prescription drug coverage will transform into a full employment act for the lawyers, limiting development of new drugs and driving up prices for everybody.” (Scott Gottlieb, “More Drug Use Will Mean More Lawsuits,” AEI On the Issues, Mar.). (DURABLE LINK)
March 10-11 — Lawsuits vs. free speech, cont’d: jailhouse rock. Last year VH1 aired a special entitled Music Behind Bars, featuring the music of prisoners. Now the family of a West Virginia man murdered in 1994 by one of the inmate-performers is suing the network. The family’s lawyers are arguing that whether or not the network compensated the convicted killer for his performance — it says it did not — its broadcast occasioned the family emotional distress for which it should have to pay compensatory and punitive damages. (Maria Lehner, “Murder Victim’s Family Sues VH1”, Fox News, Mar. 6). (DURABLE LINK)
March 8-9 — Tobacco fees: feds indict former Texas AG. One of the biggest developments yet in the tobacco-fee saga: a federal grand jury is charging former Texas attorney general Dan Morales and his friend Marc Murr with conspiracy and mail fraud over Morales’s attempt to gain hundreds of millions of dollars in fees for Murr from the state’s tobacco settlement. More recently, Morales has suggested that he might be able to furnish information that would throw in question the fee entitlements of five politically influential trial lawyers who managed the state’s case (R. G. Ratcliffe and Clay Robison, “Former Attorney General Dan Morales indicted”, Houston Chronicle, Mar. 6; April Castro, “Ex-Attorney General Morales Indicted”, AP/Washington Post, Mar. 6; “Former Texas Attorney General Surrenders”, AP/ABC News, Mar. 7). For earlier coverage, see Jul. 15, 2002 and links from there; Jan. 10-12, 2003. (DURABLE LINK)
March 8-9 — Should have watched his step answering call of nature. Update: an appeals court in the Australian state of New South Wales has overturned the $60,000 judgment (see Mar. 5, 2002) awarded to Paul Jackson, who after a night drinking with friends walked home along a highway and “stepped over a low guard rail in order to urinate, not realising there was a drop of several metres.” The “plaintiff was not taking reasonable care for his own safety as he was obliged to do,” the justices said. (“That’s a long drop”, Sydney Morning Herald, Mar. 5; “Wee change in fortune for Wollongong man”, Aust. Broadcasting Corp., Mar. 5). (DURABLE LINK)
March 5-7 — Update: hospital rapist’s suit dismissed. Sandusky, Ohio: “A judge has dismissed the $2 million lawsuit filed by a convicted rapist who claimed the hospital where he sexually assaulted a woman was negligent because it didn’t prevent the crime, according to court records.” ((Richard Payerchin, “Ruling: Convict responsible for his own crime”, Lorain Morning Journal, Feb. 20)(see May 22-23, 2002). (DURABLE LINK)
March 5-7 — Stuart Taylor, Jr., on lead paint litigation. At his most scathing: “[O]ne group deserves a special niche in the annals of those who have perverted the legal system for personal and political gain at the expense of everyone else: the politically connected trial lawyers who have signed up Rhode Island, Chicago, San Francisco, St. Louis, and dozens of other governments, school districts, and housing authorities to sue over health hazards associated with sales of lead pigment and paint for indoor use. The last of those sales took place more than 45 years ago.” With details on the unusual “retainer agreement” with which former Rhode Island AG Sheldon Whitehouse signed over the state’s sovereign authority to two influential private law firms: “It not only guaranteed the lawyers a contingent fee of 16.67 percent of any money recovered, plus all litigation expenses; it also gave them considerable control over whom to sue, what to claim, whether to settle, and on what terms.” (Stuart Taylor Jr., “Perverting the Legal System: The Lead-Paint Rip-Off”, National Journal/The Atlantic, Feb. 19) (DURABLE LINK)
March 5-7 — Incoming link of the day. From the website of a Fort Worth, Texas cardiology practice: “We do not provide ANY email advice regarding medical issues. DO NOT contact us by email with clinical questions. The email addresses above are for business correspondence only. For some insight as to why, click here.” (DURABLE LINK)
March 5-7 — $6 million fee request knocked down to $25,000. Ouch! An appeals court in El Paso has upheld a trial judge’s decision to “award a group of plaintiffs’ lawyers $25,000 in attorney fees instead of the nearly $6 million they sought under a contingent-fee contract.” However, the attorneys, led by brothers Stephen F. Malouf and E. Wayne Malouf, are unlikely to go hungry; they’ve apparently obtained upwards of $2 million in fees from other aspects of the case, a complex litigation over oil rights. (Brenda Sapino Jeffreys, “Appeals Court Says Trial Judge Had Discretion to Reduce Fees”, Texas Lawyer, Feb. 26). (DURABLE LINK)
March 4 — “The Tort Tax”. “According to a new study by Tillinghast-Towers Perrin, the total cost of the U.S. tort system reached $205.4 billion in 2001, an increase of 14.3% over the previous year — far faster than the rate of economic growth. This is like a tax of 2% on everything in the American economy that takes $721 per year out of the pockets of every citizen.” Also cites a certain “excellent website that, unfortunately, I find too depressing to read regularly”. (Bruce Bartlett, syndicated/National Review Online, Mar. 3). (DURABLE LINK)
March 4 — Thrill of the chase. NYC: “A half-dozen personal-injury lawyers were charged [last week] in a scam that allowed a network of corrupt hospital employees to do the ambulance-chasing for them, authorities said. In at least three hospitals — Elmhurst, New York Presbyterian and Lincoln — emergency-room workers sold the attorneys confidential medical records of car-accident victims, evaluating the sales potential of the information as doctors were evaluating the patients for treatments, authorities said. Officials were clued in on the scheme — which ran for seven years — by a hospital employee after patients began complaining about calls at home from strangers who knew a lot about their medical conditions, according to Manhattan District Attorney Robert Morgenthau.” (Tom Perrotta, “Personal Injury Lawyers Indicted for Soliciting Scam”, New York Law Journal, Feb. 27; Laura Italiano, “Lawyers Charged in Hosp. E.R. Scam”, New York Post, Feb. 27). (DURABLE LINK)
March 4 — “Edwards doesn’t tell whole story”. In stump speeches since the outset of his political career, Sen. John Edwards has invoked the case of little Ethan Bedrick, a cerebral palsy victim, as emblematic of “the kids and families I’ve fought for.” One reporter was curious to learn more about Bedrick’s case, but Edwards’s campaign press secretary “told me if I wanted to know any details, I should ‘look it up.”’ So she did. It turns out Edwards’ firm obtained a settlement, often described as being for $5 million, of a lawsuit charging that asphyxiation during delivery caused Ethan’s disability. Edwards’s speech picks up the story only later, when Ethan’s family battled a health insurer to obtain needed therapy (Lynn Sweet, Chicago Sun-Times, Feb. 27) (& see letter to the editor, Mar. 31). (DURABLE LINK)
March 3 — By reader acclaim: “Man who threw dog into traffic sues dog’s former owner”. “A man who threw a dog to its death in a fit of road rage is suing the dog’s former owner and a newspaper, alleging mental anguish and seeking more than $1 million in damages. … [Andrew] Burnett was sentenced in July 2001 to three years in jail in the death of Leo, a bichon frise whose owner tapped Burnett’s bumper in rainy-day traffic in February 2000 near the San Jose Airport. Burnett threw the little dog into traffic before driving off.” (AP/San Francisco Chronicle, Feb. 28; Dan Reed, “Leo the dog’s killer claims mental anguish in suit”, San Jose Mercury News, Feb. 28). (DURABLE LINK)
March 3 — Update: Lockyer sues complaint mill. Following a continuing furor in California (see Jan. 15-16) about entrepreneurial lawyers’ practice of filing assembly-line complaints against thousands of small businesses, which then are informed that they must pay thousands of dollars to get the charges dropped, state Attorney General Bill Lockyer has announced that he is suing the most-publicized such law firm, Trevor Law Group, under the same unfair-business-practices law that it employs in its complaints. “Trevor Law Group operates a shakedown operation designed to extract attorneys’ fees from law-abiding small businesses,” Lockyer said. “They’ve abused one of the state’s most important consumer protection statutes and dishonored attorneys who practice law in the public interest. There’s some delicious irony in turning the weapon around and using it on them.” (Monte Morin, “State Accuses Law Firm of Extortion”, Los Angeles Times, Feb. 27; Dan Walters, “In ironic twist, law firm finds itself on other end of suit”, Sacramento Bee, Mar. 3). See also Jessica V. Brice, “Wave of lawsuits threatens 70-year-old consumer law”, AP/Sacramento Bee, Jan. 21). (DURABLE LINK)
March 20 — Kids’ art on walls ruled a fire hazard. In what might be a bit of an overreaction to the recent deadly nightclub blaze in West Warwick, R.I., the Fire Department and building inspector of Attleboro, Mass. “sent word this month to the public schools: From now on, zero tolerance for breaking fire codes. Those bright-colored handprints and cheery stick figures have got to come down from the walls.” School board member Richard Correia “wonders, in this cautionary age, what might be next to go. ‘What do we do about our children who hang their coats in those little closets?’ Correia said. ‘Are they fire retardant?'” (Joanna Weiss, “Does future of art ed hang on safety”, Boston Globe, Mar. 12). (DURABLE LINK)
March 20 — Florida: “New clout of trial lawyers unnerves legislators”. Trial lawyers have built a position of powerful influence in the Florida legislature, in particular by “[s]upporting Republicans who have shown an appreciation for the civil justice system”, as a trial lawyer official puts it. In what Gov. Jeb Bush called “kind of a breath-taking example of their power”, the president of the state senate couldn’t even get a hearing in his own chamber for one of his major priorities, a bill to limit pain-and-suffering damages in fast-growing litigation against nursing homes (see Mar. 19). Limits on medical malpractice suits may be doomed in the state as well (Alisa Ulferts and Michael Sandler, St. Petersburg Times, Mar. 17). (DURABLE LINK)
March 19 — Jury clears Bayer in cholesterol-drug case. In perhaps the most widely watched product liability trial of the year so far, the New York Times may have bought the plaintiff’s lawyers’ case, but a Corpus Christi jury didn’t, and awarded $0.00 instead of the requested $560 million. Just another 8,400 plaintiffs to go, of whom the “vast majority”, according to Bayer’s lawyer, are not in fact injured (“Jury Clears Bayer of Liability in Baycol Suit”, AP/Quicken, Mar. 18; “Bayer lawyer: Most Baycol plaintiffs not injured”, Reuters/Forbes, Mar. 18) (DURABLE LINK)
March 19 — $12,000 a bed. “Nursing homes [in some states] now pay close to $12,000 per bed annually on liability insurance, according to [a new] report [by AON Risk Consultants].” Nationally, liability costs per bed grew from an average of $300 annually a decade ago to $1,120 in 1997 and $2,880 in 2002, according to the study. Defenders of rising litigation say it provides long-overdue recourse against bad care, but the former administrator of the recently closed Gadsden Nursing Home in Quincy. Florida, doesn’t buy the idea that only poorly run homes can expect to be sued. “‘We were ranked 51st out of 668 homes in the state the day we closed. If you’re ranked in the top 7.5%, you’re not a bad home,’ he said.” (Reuters Health, “Legal liability costs surge for US nursing homes”, Mar. 14). (DURABLE LINK)
March 18 — Would you go into medicine again? “Then there is the issue of so-called malpractice — a rapidly growing income-transfer system from doctors to lawyers that, quite apart from its toll on doctors, gives injured parties ever-diminishing shares of the proceeds. … [T]here must be a system for removing from practice those physicians who are guilty of multiple errors. (As I know from my service on the D.C. Medical Society’s disciplinary committee, this is now, ironically, made exceedingly difficult by the threat of suit from those under scrutiny.)” (Devra Marcus, “I’m a Doctor, Not an Adversarial Unit of the Health Care Industry”, Washington Post, Mar. 16). (DURABLE LINK)
March 18 — “Runaway asbestos litigation — why it’s a medical problem”. One doctor’s view of the morass (Lawrence Martin, M.D., MtSinai.org, Nov. 18, 2002. The site relates to Cleveland’s former Mt. Sinai hospital, not the one in New York). (DURABLE LINK)
March 17 — Australian roundup. Sued if you do, sued if you don’t dept.: “A netball star banned from playing because she was pregnant was awarded $6750 yesterday for hurt, humiliation and loss of match payments. … Netball Australia excluded any pregnant women from playing because of fears of legal action over injuries to mothers or unborn babies.” (Ellen Connolly, “Banned pregnant netballer wins damages for discrimination”, AAP/Sydney Morning Herald, Mar. 14). “A woman whose little finger was cut while working on a processing line at a doughnut factory has been awarded damages of [A]$467,000”. (Leonie Lamont, “Cut little finger reaps $467,000 damages”, Sydney Morning Herald, Mar. 12). “Non-lawyers are constantly baffled by legal decisions that seem to have little to do with reality, let alone justice,” opines commentator Evan Whitton, offering some examples from the Down Under legal scene (“The law of diminishing reality”, Sydney Morning Herald, Dec. 12). (DURABLE LINK)
March 17 — Steering the evidence: an update. Forbes follows up on the episode described in our May 23 and June 26, 2000 posts: “In June 2000 a judge found that three Texas lawyers (or someone they hired) had tampered with evidence in a $2 billion suit blaming Chrysler for a deadly car crash. The judge slapped the San Antonio lawyers with nearly $1 million in sanctions — one of the largest such penalties in memory. Last August an appellate court called the lawyers’ conduct ‘an egregious example of the worst kind of abuse of the legal system.’ And now the FBI is investigating the trio’s actions.
“What’s happened to the lawyers? Not much. Two are still practicing in Texas and the third moved out of the country. Only $289,000 of the penalty has been paid to Chrysler.” (Joann Muller, “Crass Actions”, Forbes, Mar. 31).(& update Jun. 10). (DURABLE LINK)
March 15-16 — “Public deceit protects lawsuit abuse”. The Pennsylvania Medical Society excoriates Nader’s Public Citizen for putting out a report on the Keystone state malpractice situation that the physicians say was marred by such basic errors as double and triple counting (legislative testimony, society president Edward H. Dench, Jr., MD, Mar. 5; press release, U.S. Newswire/ Boston.com, Mar. 5). We regret to inform the good docs that it seems to be a hopeless task — you can expose Public Citizen’s output as shoddy as frequently as you like, but much of the media will go right on treating it as gospel. And Radley Balko looks at the U.S. Public Interest Research Groups — which cooperate with the rest of the Nader empire in fighting litigation reform — reminding us of just how disreputably the PIRGs get their money (“Public Shakedown Artist”, TechCentralStation.com, Mar. 3). Mickey Kaus also comments (scroll to Mar. 13). Update: more flak for the PIRGs’ New York affiliate, NYPIRG (David E. Seidemann, “Scrutinizing the Nader Legacy”, Health Facts & Fears (American Council on Science and Health), Mar. 2, 2004) (via Megan McArdle). (DURABLE LINK)
March 15-16 — Class action lawyer takes $20 million from defendant’s side. Eyebrows arch as mass-tort lawyer Joe Rice, best known for the tobacco caper, cuts a deal in which Swiss-owned asbestos defendant ABB agrees to pay him $20 million personally for settling his clients’ pending claims against ABB subsidiary Combustion Engineering; Rice will also, of course, receive a contingency share of what the clients get (Alex Berenson, “Class-Action Lawyer’s Fee Under Scrutiny”, New York Times, Mar. 12). (DURABLE LINK)
March 12-14 — “Automakers may stop leasing vehicles in N.Y.” Major automakers and lenders are pulling out of the auto-lease business in New York, Connecticut and Rhode Island, where laws allow leasing companies to be sued (in their role as titular owners) after a driver of one of their cars gets into an accident. (Kenn Peters, Syracuse Post-Standard, Mar. 11). “General Motors Acceptance Corp. notified dealers [in January] that it will quit buying leases in New York, Connecticut and Rhode Island later this year unless those states change their ‘vicarious liability’ laws, which is unlikely.” (Jim Henry, “GMAC may end leases in three states”, Automotive News, Jan. 15). New York’s state senate has passed a bill repealing the doctrine, but it is given little chance of success in the trial-lawyer-dominated Assembly. Already many lease providers have hiked consumer fees by $600 or so in the high-liability states, a change that affects a large number of consumers, since around a third of cars sold are leased. Trial lawyers are the main power defending the vicarious laws. See also “Repeal sought of 18th-century doctrine affecting car leasing”, AP/Stanford Advocate, Mar. 10; Amy Forliti, “Lender’s pullout hurts R.I. leasing business”, AP/Boston Globe, Feb. 25. For our earlier coverage, see Aug. 26, 2002. (& see update May 21: Honda, GM, Ford, Chase all announce pullouts)
In another ambitious application of vicarious liability, the city of Detroit has argued — and a Michigan appeals court has agreed — that it can go after Ford Credit in court to collect unpaid parking tickets of drivers who lease through Ford; the ruling does however require case-by-case hearings on who was in control of the vehicles at the time of the infractions (“Appeals Court OKs Hearings Over $1M Unpaid Parking Tickets From Ford Credit Leased Vehicles”, Detroit News/Automotive Digest, Jan. 7; Robert Lane, “Ford Can Be Held Vicariously Responsible For Parking Fines”, Blue Oval News, Feb. 4) (via WSJ Best of the Web, Feb. 4). (DURABLE LINK)
March 12-14 — Sports mascots litigation. ESPN does a roundup, noting that the giant stuffed animals and other mascots “spend an inordinate amount of time in the courtroom” (Patrick Hruby, “Page Two: The seedier side of fur and fun” — see “Mascot Court Report” sidebar, Feb. 12). (DURABLE LINK)
March 31 — Gun-suit thoughts. Our editor has contributed an op-ed to the New York Sun outlining his view that the NAACP’s lawsuit against gunmakers (which went to trial last week amid a flurry of favorable press notices; see Mar. 24) is plenty lame and derives its only real vitality from having been filed before a favorable judge (Walter Olson, “Gun Lawsuit Meets Activist Judge”, New York Sun, Mar. 26). On an unrelated note, the House Judiciary Committee has asked our editor to discuss federal pre-emption of anti-gunmaker litigation at a hearing this Wednesday before the Subcommittee on Commercial and Administrative Law (Rayburn HOB 2141, 10 a.m.) (DURABLE LINK)
March 31 — Teachers afraid. “Educators in Baltimore County and beyond say the threat of lawsuits prevents administrators from backing their punishment of disorderly or dishonest students.” One of the more thorough explorations of this topic we’ve seen recently (Jonathan D. Rockoff, “Teachers say the law adds to disorder in classroom”, Baltimore Sun, Mar. 23) (via Joanne Jacobs). (DURABLE LINK)
March 31 — Some reader letters. We’ve fallen lamentably behind in publishing readers’ letters. Here’s a batch of four, on terrorism suits against foreign entities, Sen. Edwards and cerebral palsy, one New Jersey judge’s dismissal of a playground lawsuit, and an unwelcome (to us) advertising intrusion into our newsletter. Quite a few other letters remain in our pipeline — we’ll try to get to them soon. (DURABLE LINK)
March 25-30 — Fast food opinion roundup. “The word “addiction” is perilously close to losing any meaning. If lawyers can turn fast food into an addiction and pin liability on restaurants, it won’t be long before adulterers sue Sports Illustrated, claiming its swimsuit issue led them astray.” (Sally Satel, “Fast food ‘addiction’ feeds only lawyers”, USA Today, Mar. 12, reprinted at AEI site). One 270-lb., 5-foot-6 plaintiff “said her regular diet included an Egg McMuffin for breakfast and a Big Mac meal for dinner”, but Chris Rangel at RangelMD concludes that the calorie count doesn’t add up — the only way you could get up to 270 pounds would be by consuming a whole lot more food than that. (RangelMD, Feb. 23). “Big Food stands charged with making the plaintiffs fat, notes Howard Fienberg in a review of a fairly dreadful-sounding book on the much-ballyhooed obesity epidemic. Yet “Grocery stores are easily accessible for most Americans. …. Healthy choices are everywhere.” (“Supersize Nation?”, AmericasFuture.org, Winter). As expected, attorney Samuel Hirsch has re-filed his suit against McDonald’s (John Lehmann, “McFatties Bite Back”, New York Post, Feb. 20). “And now, Hirsch tells Newsweek, he’s targeting companies selling weight-loss products such as herbal supplements. Within weeks, he says, his law firm will begin placing ads in magazines to invite clients who bought the products but failed to lose weight to join a class-action lawsuit.” (Daniel McGinn, Newsweek, Feb. 10). See also “Tobacco-war lawyers taking aim at fast food”, Sacramento Bee, Feb. 24; Duane Freese, “Frankensuits”, Tech Central Station, Feb. 27.
March 25-30 — “How a lawyer blew the whistle on a judge”. “It was the most distasteful thing I ever had to do in my life” said Joel Persky of his decision to turn in Allegheny County Common Pleas Judge Joseph A. Jaffe, who offered favorable rulings in Persky’s asbestos cases in exchange for a cash quid pro quo (see Sept. 3, 2002). Had Persky merely ignored the judge’s overtures, according to one “seasoned” lawyer, he might have been laying himself open to legal malpractice charges. “Jaffe, 52, pleaded guilty last month to extorting money from Persky and will be sentenced May 16. Jaffe has qualified for a temporary, $60,000 a year disability from the State Employees’ Retirement System because he is depressed. The system’s board of trustees will vote on whether to award the money in March.” (Marylynne Pitz, Pittsburgh Post-Gazette, Mar. 2). (DURABLE LINK)
March 25-30 — Gone for a few days. The site will lie fallow while our editor gives several speeches to promote his new book. See you Monday. (DURABLE LINK)
March 24 — Mad County pays out again. “A judge in Madison County, Ill., ordered Philip Morris USA Inc. to pay $10.1 billion in a class-action lawsuit that claimed the tobacco giant misled smokers about the dangers of light cigarettes.” Circuit Judge Nicholas G. Byron “gave the plaintiffs’ lawyers a quarter of the compensatory damages, or nearly $1.8 billion.” (“Philip Morris Hit With $10.1B Verdict in Illinois Case, Dow Jones/Quicken, Mar. 21; Trisha Howard and Paul Hampel, “Tobacco firm lawyer derides court’s reputation”, St. Louis Post-Dispatch, Mar. 22; related stories; Sherri Day, “Philip Morris Faces Big Penalty”, New York Times, Mar. 22). Madison County, Ill. is located east of St. Louis (map); its main cities include Alton, Edwardsville and Granite City. For more on its fame as a “plaintiff’s paradise” and “judicial hellhole” for defendants, see notes below, including work sponsored by the Manhattan Institute, with which our editor is associated. (Update Apr. 2-3: Philip Morris says it is unable to post appeals bond; more updates.)
MORE ON MADISON COUNTY: “Study finds Madison County has most class action suits per capita”, AP, Sept. 11, 2001; Jim Getz, “Class-Action Suits Soar In Madison County, Study Says; Think Tank Argues For Moving Cases To Federal Court”, St. Louis Post-Dispatch, Sept. 11, 2001; John H. Beisner and Jessica Davidson Miller, “They’re Making a Federal Case Out of It … In State Court”, Manhattan Institute Civil Justice Report #3, Sept. 2001; Noam Neusner with Brian Brueggemann, “The judges of Madison County”, U.S. News, Dec. 17, 2001 (fee); Sen. Herb Kohl (D-Wis.), Statement on Class Action Fairness Act, Congressional Record, Nov. 15, 2001; Lester Brickman, “Anatomy of a Madison County (Illinois) Class Action: A Study of Pathology”, Manhattan Institute Civil Justice Report #6, press release, Aug. 12, 2002. (DURABLE LINK)
March 24 — Stalking horse for anti-gun litigators. If the NAACP really does have legal standing to sue firearms manufacturers and demand that a court impose gun-control measures on them, one might reasonably conclude that in the future anyone will henceforth have standing to sue anyone over anything. Still, this notional standing has been the excuse for longtime anti-gun litigators to make yet another pilgrimage to the Brooklyn courtroom of federal judge Jack Weinstein, who’s considered far more sympathetic to their cause than most of his colleagues (Tom Hayes, “Ex-Lobbyist to Testify for Gun Foes in Federal Trial”, AP/Law.com, Mar. 21). Jacob Sullum comments on the resulting trial set to begin today (“Jack B. Trick”, syndicated/Reason Online, Mar. 21), as does Eugene Volokh, who points out that the arguments for holding gun manufacturers liable would, if taken seriously, also lead to findings of liability against liquor manufacturers for “foreseeable misuse” of their wares — not that some ambitious lawyers wouldn’t like to do that too (Volokh Conspiracy blog, archive link not working, scroll to Mar. 23). The NAACP case seeks injunctive relief; per the AP, above, Judge Weinstein “has decided the jury will play only an ‘advisory role,’ leaving himself to make the final determination on liability and remedy.” For our earlier coverage of the suit, click here. See also “Off Target: Anti-gunners again take aim at manufacturers”, (editorial), McAllen (Tex.) Monitor, Mar. 21; and Hunting and Shooting Sports Heritage Fund site (& welcome Kausfiles readers). Updated to include correct HSSHF link (DURABLE LINK)
March 21-23 — “Lawyers find gold mine in Phila. pension cases”. Philadelphia Inquirer exposes how the city’s municipal pension funds enlisted as the complaisant clients of two prominent class action law firms, Berger & Montague and Barrack, Rodos & Bacine, which between 1996 and 2002 scooped up $19 million in fees representing the city in securities litigation. Then-Mayor Ed Rendell green-lighted the suits, and also happens to have received $460,000 in contributions from the lawyers since 1990. “‘The truth is, there was just a bounty hunter prowling the security industry, picking things and putting our names on it,’ said Joseph Herkness, the pension fund’s former director. ‘We were told, basically, to sign these things.'” “It was an opportunity to make money for the city without any risk,” claims Rendell, who is now Pennsylvania’s governor. But perhaps not quite so much money as if the city had driven a harder bargain: “Funds in Florida, Connecticut, Wisconsin, and New York City have trimmed millions off legal fees by seeking bids and setting fees in advance,” but not Philadelphia, the paper reported. As reported earlier (see Jan. 31) the FBI is investigating the actions of city officials in hiring the firms and resisting a judge’s efforts to encourage competitive bidding. (Joseph Tanfani and Craig R. McCoy, Philadelphia Inquirer, Mar. 16; “Lawyer’s responses scrutinized”, Feb. 14). Name partner Leonard Barrack of Barrack, Rodos, a big-league political donor, served as finance chairman for the Democratic National Committee under President Clinton (Washington Post, Jan. 12, 1999); he has said his firm is cooperating with the FBI probe. (DURABLE LINK)
March 21-23 — More notices for The Rule of Lawyers. Free-Market.net, one of the major libertarian sites, names our author’s new book “Freedom Book of the Month”, with reviewer Sunni Maravillosa calling it “clear, compelling” and “very important” and saying its “revelations will likely astonish most people who aren’t intimately acquainted with the American legal system” (March). In a review for the Indianapolis Star, reviewer Peter J. Pitts applauds the book as “insightful and frightening” (“Lawyers get rich; we get a warped idea of blame”, Mar. 15). And in American Hunter and its sister publications (American Rifleman, etc.), National Rifle Association Executive Vice President Wayne LaPierre uses his monthly column to call NRA members’ attention to the continuing outrage of the municipal gun suits and to The Rule of Lawyers in particular (April, not online). If you haven’t ordered your copy yet, what are you waiting for? (DURABLE LINK)
January 20 — U.K.: coercive campaign to constrain Cadbury… In Britain, a “leading public health expert” is proposing a legal ban on extra-large chocolate bars and a code of conduct for snack food companies which “would include promises to cut the size of their portions by 20 per cent and to stop selling ‘over-sized’ sweets”. Particularly offensive to coercive nutritionists is some food companies’ practice of offering an extra-large package at a price only slightly higher than that of the smaller size. (Severin Carrell, “Why that big, fat KitKat could be the death of you”, The Independent, Jan. 19) (& welcome TongueTied readers). (DURABLE LINK)
January 20 — … and climbing cost of “compensation culture”. “The compensation culture, in which ‘every mishap leads to a complaint’ and often to legal action, is changing the face of Britain and costing about £10 billion a year, a report says today. … Compensation paid by insurance companies and public authorities amounts to one per cent of GDP, actuaries estimate. The figure is growing by 15 per cent a year. … However, the 35 per cent spent on administration in Britain compares well with the 58 per cent in America.” Schools, police forces and the ministry of defense are all being sued more frequently. (Joshua Rozenberg, “Price of ‘suing for every mishap’ is £10bn”, Daily Telegraph, Dec. 17; “Compensation claims ‘costing UK £10bn a year'”, Ananova/Guardian, Dec. 17; Robert Verkaik, “Lawyers earn £3bn yearly from injuries culture”, Independent, Dec. 17; London Institute of Actuaries/Edinburgh Faculty of Actuaries, press release; “The Cost of Compensation Culture”, Dec. 2002 (PDF)). (DURABLE LINK)
January 17-19 — Vt. high court: ALL-CAPS DISCLAIMER on front page of employee handbook not unambiguous enough. “Sidestepping an all-capitals disclaimer on page one of an employee handbook, Vermont’s Supreme Court has revived a woman’s right to sue her ex-employer for breaching an implied contract when it fired her.” Although the disclaimer said: “THE POLICIES AND PROCEDURES CONTAINED IN THIS MANUAL CONSTITUTE GUIDELINES ONLY. THEY DO NOT CONSTITUTE PART OF AN EMPLOYMENT CONTRACT, NOR ARE THEY INTENDED TO MAKE ANY COMMITMENT TO ANY EMPLOYEE,” the court ruled that the woman could nonetheless ask a jury to construe the manual’s contents as generating a legally enforceable promise. (Andrew Harris, “Big Disclaimer No Bar to Employee Suit”, National Law Journal, Jan. 15). (DURABLE LINK)
January 17-19 — “Ich Bin Ein Tort Lawyer”. Train disasters in the Austrian Alps and in Germany in recent years, which killed 155 and 101 people respectively, have resulted in the filing of massive personal-injury lawsuits in New York City, although very few Americans numbered among the victims and most of the defendants being sued are European companies. American lawyers (including Edward Fagan, who also drew critical attention in the Holocaust-assets litigation — see Jun. 24, 2002) argue that so long as they designate at least one American as lead plaintiff, they should be able to bring any number of other nonresident plaintiffs in on the same action. Such forum-shopping enables the lawyers to sidestep rules in German and Austrian courts that ban contingency fees, cap damages, require the losing side to compensate the winners, and restrict discovery and the use of class actions. (Michael Freedman, Forbes, Jan. 6). (DURABLE LINK)
January 17-19 — Blog-appreciated. Yesterday (Jan. 16) we got Slashdotted, with a reader’s suggestion that we cover a lawyer’s cease-and-desist letter sent to the maintainer of a “free PCI device table” (we readily admit we don’t know what those devices are). AngryRobot describes an indecorous canine-generated outdoor hazard which seems only too likely to eventuate in the sort of personal injury case “destined to be on Overlawyered” (Jan. 16). Our return from hiatus last month was generously hailed by Susanna Cornett in Cut on the Bias (Dec. 13), and by the web’s premier chronicler of appellate law, Howard Bashman’s How Appealing (Dec. 15 and Dec. 30). Dean Esmay (Dean’s World, Jan. 10) calls us “one of the best sites on the web”. We’ve also been mentioned lately on Employers’ Lawyer (Jan. 12), MedRants (Jan. 11), Larry Sullivan’s Delaware Law Office (Nov. 12)(on loser-pays, which Sullivan dubs “winner wins”), Nikita Demosthenes (Oct. 19), and on many link lists including those of Rick Henderson, Nikki, Esq., Carey Gage, Professor Bunyip, John Ray, and Skunk by the Ocean. All this incoming link activity leaves us at #155 in the BlogStreet Top 200 blogs (ranked by number of those who link to us). A special tip of the hat to Scott Norvell’s recently launched TongueTied site, cataloguing excesses of political correctness, which generates an impressive amount of traffic for us. And we turn up in a sidebar in Germany’s Der Spiegel Online (Frank Patalong, “Wahre Lügen”, on the “Stella Awards” list of spurious cases, Nov. 29). (DURABLE LINK)
January 15-16 — Furor over California complaint mills. Beverly Hills, Calif. law firm Trevor Law Group has used the state’s bounty-hunting consumer-protection laws to file complaints en masse against auto repair shops, nail salons, and hotels, from which it then demands settlements. Even Calif. attorney general Bill Lockyer, no foe of the plaintiff’s bar, says he is “disgusted and appalled” by Trevor’s most recent mass litigation campaign, against more than 1,000 restaurants and food stores, many small and immigrant-owned. Business owners are organizing in response and many news outlets have run indignant editorials (Cindy Chang, “Backlash against lawsuit gains steam”, Pasadena Star-News, Jan. 2; Traci Jai Isaacs, “Business owners claiming old law used in ‘shakedowns'”, South Bay Daily Breeze, Jan. 14; California Restaurant Association “Call to Action”, Jan.; KABC-TV 7, “Auto Lawsuits”, Dec. 3; Civil Justice Association of California, “Legal Shakedowns Hitting Thousands of California Businesses”, Dec. 6; “Mass Produced Claims Against Nail Salons”, Dec. 6 (PDF)). Radio’s “John and Ken Show” has also been covering the controversy and its online audio segments (three December dates) are described by one reader as quite lively in tone, although we haven’t had the chance to listen to them. (& see Mar. 3) (DURABLE LINK)
January 15-16 — Sis-Boom-Sue. Jenny Lawson is suing the Des Moines school district, alleging she broke her leg when she collided with another cheerleader while cheering for the wrestling team at Roosevelt High School. “The suit claims the district was negligent for — among other things — failing to have cheerleaders perform on an absorbent mat and encouraging more than one cheerleader to jump at once. Drew Bracken, an attorney for the Des Moines district, said he knew of no schools with such rules. ‘I’m not aware of a requirement that cheerleaders perform on an absorbent mat. I’ve never heard of it before,’ Bracken said.” (Mark Siebert, Des Moines Register, Jan. 2). (DURABLE LINK)
January 13-14 — “Wacky Warning Label” winners. This year’s winner in Michigan Lawsuit Abuse Watch’s Wacky Warning Label contest is a label on a robotic massage chair that warns, “Do not use massage chair without clothing” along with “Never force any body part into the backrest area while the rollers are moving”. “Second place goes to a snowblower label that says ‘Do not use snowthrower on roof.’ Third is a kitchen label that says, ‘Do not allow children to play in the dishwasher.'” (multiple outlets; Business Wire, Jan. 8) (earlier winners: Jan. 25-27, 2002; Jan. 19-21, 2001; Jan. 18, 2000) (DURABLE LINK)
January 13-14 — Cochran: City Hall to blame for arson/murder by drug dealer. “In a legal memo expected to land at City Hall in a matter of days, attorney Johnnie L. Cochran Jr. will claim the city bears responsibility for the October arson murder of an East Baltimore family — in part because the anti-drug ‘Baltimore Believe’ campaign encouraged residents to speak out against dealers, a lawyer working with Cochran said yesterday. Cochran is representing relatives of the Dawson family, who prosecutors say were killed in retaliation for reporting neighborhood dealers to police.” (Laura Vozzella and Del Quentin Wilber, “Anti-drug campaign blamed in Dawson arson deaths”, Baltimore Sun, Jan. 8)(via WSJ Best of the Web) (DURABLE LINK)
January 13-14 — Anti-diet activist hopes to sue Weight Watchers. “U.K.-based psychotherapist Susie Orbach, author of Fat Is A Feminist Issue, is planning a lawsuit against Weight Watchers on behalf of what she says are thousands of women and men who have paid out many hundreds of British pounds to the company, only to end up fatter than before they started the program. … Orbach’s suit would be the first to hold a weight-loss company responsible for clients’ gaining the weight back.” (“Diet Dispute”, ABC News, Jan. 9). “‘Now that the general public is taking absolutely no responsibility, we retailers are starting to get anxious,’ says Simon Doonan, creative director of the Manhattan clothier Barney’s. ‘If people are suing McDonald’s for making them fat, one does wonder how far we are from an era where individuals will attempt to sue us when they buy clothes that make them look fat.'” (Joanne Kaufman, “Seasonal Pain and Suffering”, Wall Street Journal, Nov. 29) (DURABLE LINK)
April 10 — Soap star: ABC wrote my character out of the show. “A former star of ABC’s daytime drama ‘All My Children’ has filed a lawsuit for nearly $32 million, claiming that the network lied to him and damaged him professionally and financially.
“Michael Nader, who played the dark, dashing and rich Hungarian Count Dimitri Marick on ‘All My Children’ for nearly 10 years, says in court papers that he ‘became ill’ in February 2001 and went on medical leave.
“Nader, 57, was in fact in drug treatment after a narcotics arrest in Manhattan’s East Village. The district attorney’s office said he pleaded guilty and was sentenced May 22, 2001, to three years of probation.
“Nader’s Dimitri character …was written out of the show in 1999. The character was resurrected in 2000 but was written out again in 2001 after Nader’s arrest and rehab. … Nader says [in court papers] he told ABC in March 2001 that he was ready to work but officials there told him to continue on medical leave. … [Later they] refused to release him from his [$1.7 million five-year] contract [signed in April 2000] so he could work elsewhere.” (“Former ‘All My Children’ Star Files Suit”, AP/Newsday, Apr. 3). (DURABLE LINK)
April 10 — “Peter’s Pence”. Baltimore plaintiff’s lawyer and political czar Peter Angelos, who had been demanding $1 billion in fees for representing the state of Maryland in its tobacco suit, has ended the dispute by agreeing to take a mere $150 million instead. The people over at the National Association of Manufacturers’ Human Resources Policy Department feel awfully sorry for the Orioles owner for having to settle for such a measly amount and have launched a “Peter’s Pence” campaign by which readers can collect the spare change off their dresser tops and send it to him to help make up some of the extra $850 million (“Workplace Watch”, NAM, April; Daniel LeDuc, “Md., Angelos Reach Tobacco Fee Deal”, Washington Post, Mar. 22). (DURABLE LINK)
April 10 — “Can Pain Treatment Survive Our Addiction to Law?”. After suffering the effects of a partially collapsed lung, writer Jonathan Rauch learns firsthand how much pain sufferers have to lose if our runaway litigation system takes away their access to the revolutionary pain relief medication OxyContin (National Journal/Reason Online, Apr. 6). See also Damien Cave, “No relief”, Salon, Apr. 4; Duane Freese, “In Rx, Who’s To Blame For Abuse?”, TechCentralStation.com, Feb. 14; and earlier reports on this site: Jan. 23-24, 2002, Aug. 7-8 and July 25, 2001. Updates: see May 30, Aug. 27. (DURABLE LINK)
April 8-9 — An eggshell psyche at U.Va. Law. Worst harassment suit of the year? At the University of Virginia, first-year law student Marta Sanchez on Feb. 26 filed “a claim of assault and battery in Albemarle Circuit Court, seeking $25,000 in compensatory damages and $10,000 in punitive damages” against Prof. Kenneth Abraham, a nationally prominent scholar in tort law. To quote Wendy McElroy’s summary of the case: “During an introductory program last August, Abraham demonstrated a legal principle known as the ‘egg-shell skull rule’ from Vosburg v. Putney, a case commonly taught in torts classes [in which one child’s minor battery on another unexpectedly causes major harm to the victim]. Abraham announced his intention to show the class of about twenty students how a slight contact could be actionable. Then Abraham briefly touched Sanchez on her fully clothed shoulder. …Former students confirm that the shoulder tapping is a standard part of Abraham’s lesson on Vosburg. Sanchez says the tap flooded her with memories of being terrorized, raped and molested when she was 11 years old and living in her native land of Panama.” “What some would characterize as mere touching to this victim was an extreme event,” said Sanchez’s lawyer, Steven Rosenfield. “What makes it different is that she was the victim at the hands of men in the past.” (DURABLE LINK)
SOURCES: Nick Denton, “University student sues law professor”, Cavalier Daily, Mar. 27; AP/Richmond Times-Dispatch, Mar. 26; Wendy McElroy, FoxNews.com, Apr. 2; Justin Park, “Student sues professor”, Virginia Law Weekly, Mar. 22 (PDF); blogs InstaPundit, Mar. 25 and Mar. 26 and DaveTepper.net, Mar. 25.
April 8-9 — Zero tolerance leaves ’em gasping. School districts across the country are decreeing that “students with asthma must keep their emergency inhalers in the school office, rather than on hand.” Better time your attacks for after school, guys (Catherine Seipp, Reason, Apr.). (DURABLE LINK)
April 8-9 — “Former clients sue attorney O’Quinn”. “Twenty former clients of lawyer John O’Quinn are suing him for alleged mishandling of the Kennedy Heights and Chevron contamination settlement, in which they received $12 million instead of the $500 million that he asserted their claims were worth.” Billed at the time as a major “environmental racism” case, the Kennedy Heights litigation asserted that toxic residues had caused cancers and other ailments among the largely African-American residents of the Houston neighborhood, a charge disputed by defendant Chevron. But were the clients really unaware that it’s standard practice for lawyers in this country to talk up a far higher valuation for injury claims than those claims are actually likely to settle for? The former clients also say O’Quinn used his involvement in the Kennedy Heights case for image-buffing purposes to help beat a 1998 disciplinary rap. “A similar [pending] lawsuit was filed in 1999 by about 80 former plaintiffs who were Kennedy Heights residents claiming O’Quinn allegedly shortchanged them on a settlement.” (Jo Ann Zuniga, Houston Chronicle, Apr. 3). In 1999, when former breast implant clients filed a complaint against O’Quinn, the combative litigator struck back with a libel suit against the women’s lawyer which resulted in a quick gag order shutting down the story (see Aug. 4, 1999). (DURABLE LINK)
April 8-9 — Traffic-cams: Volokh v. Labash. UCLA law prof Eugene Volokh, in a contrarian vein, ventures to defend the red-light cameras that some cities use to generate speeding tickets, arguing that if they are operated in a non-abusive way they hold out promise of being more objective than traffic cops (“The Cameras Are Watching — And It’s a Good Thing”, Wall Street Journal, Mar. 26, reprinted at author’s site). However, Matt Labash’s new investigation for the Weekly Standard shows that the use of cameras in practice has been anything but free from error and abuse (example: cities’ propensity to shorten the duration of yellow lights to bolster revenues). There will be little reason to trust the system’s integrity so long as cities go on letting a contractor run the program in exchange for a share of ticket revenues: as we’re always emphasizing on this site, contingency fees and trustworthy law enforcement just don’t mix (see Sept. 6, 2001) (Matt Labash, “Inside’s the District’s Red Lights”, Weekly Standard, Apr. 1; “The Yellow Menace”, Apr. 2; “The Safety Myth”, Apr. 3; “Getting Rear-Ended by the Law”, Apr. 4; “Fighting the Good Fight”, Apr. 5). (Update/correction: the original post named Lockheed Martin as the contractor in charge of the program, but a reader advises us (see letter, Apr. 19) that Lockheed sold its photo traffic-enforcement division to Affiliated Computer Services Inc. of Dallas, Texas on August 24, 2001; we have corrected the text accordingly). (DURABLE LINK)
April 5-7 — Right to yell “fire”. In Denver, Claudia Huntey is suing her landlord, which she says violated disability-rights law when it evicted her. “She was cruelly thrown out of her apartment solely because she makes involuntary vocalizations due to her Tourette’s syndrome,” said her attorney, John Holland, who said the apartment managers should have made greater efforts to accommodate Huntey’s condition after repeated complaints from other residents of the complex. “What happened to Claudia Huntey is a societal wake-up call reminding us that this continuing struggle is far from over,” said Holland. For neighbors, the wake-up calls were of a different nature: Huntey suffers from more than usually intense symptoms of Tourette’s, as a result of which “[t]he intensity of the constant, involuntary sounds cause her ribs and chest muscles to ache, and she is chronically hoarse from yelling. … For reasons she does not understand, Huntey most often says or yells, ‘Fire!'”. (Sue Lindsay, “Tourette’s sufferer sues, charging unfair eviction”, Rocky Mountain News, Apr. 4). (DURABLE LINK)
April 5-7 — From the grave, instructions to sue. Brooksville, Fla.: “A woman who hanged herself in jail while waiting to face charges in her husband’s death asked in a suicide note that her lawyer sue the jail for allowing her to die. … [Laren] Sims, 36, was awaiting extradition to California to face charges of killing her attorney husband, Larry McNabney, and burying him in a vineyard. ‘My impression is she’s got a scam going even in death,’ said San Joaquin County prosecutor Lester Fleming, who was trying to extradite Sims to California. ‘It’s just an amazingly cold-blooded note.'” (“California woman accused in husband’s murder urged suit based on suicide”, AP/Boston Globe, Apr. 4). (DURABLE LINK)
April 5-7 — Avoid having a medical emergency in Mississippi. The malpractice-suit crisis in the Magnolia State just keeps getting worse: “The Mississippi Trauma Advisory Committee has suspended re-inspection of its hospitals for a year to give health officials time to address the growing problem of surgeons leaving the system.” The state legislature, in which trial lawyer-legislators occupy strategic positions (see June 15, 2001), adjourned without heeding the doctors’ plea for legal relief. (“Mississippi in trauma crisis as surgeons leave”, AP/Memphis Commercial Appeal, Mar. 19)(& see Jun. 3-4, 2002). (DURABLE LINK)
April 5-7 — Advice the whole country could use. P. J. O’Rourke, reviewing two etiquette books: “[M]uch of their advice [the “Etiquette Grrls”] is needed by the entire nation: ”It is much, much more polite simply to tell someone ‘See you in hell’ than ‘See you in court.”’ (New York Times Book Review, Mar. 24). Also: Michael Kinsley on suing as “our national sport” (scroll to near end) (“Social Hypochondria”, Washington Post, Mar. 1). And: author Philip Howard (The Death of Common Sense) is launching a new organization called the Coalition for the Common Good that will gather participants from across the political spectrum in an effort to curb legal excess (Michael Barone, “The Common Good”, U.S. News, Mar. 25; Stuart Taylor, Jr., “How More Rights Have Made Us Less Free”, National Journal/The Atlantic, Feb. 12). (DURABLE LINK)
April 3-4 — High court nixes back pay for illegal aliens. Last week, in Hoffman Plastic Compounds v. NLRB, the Supreme Court by a 5-4 vote ruled that illegal aliens can’t collect damages for being fired from jobs it was never lawful for them to hold (Gina Holland, “Supreme Court Restricts Illegal Workers’ Rights in Employment Cases”, AP/Law.com, Mar. 28; see Oct. 28, 1999). Our editor has a new piece out in National Review Online today (Wed.) expressing relief that for the moment at least the country will be free of this absurdity. (Walter Olson, “A Wink Too Far”, Apr. 3). For a contrasting view, here are the editorialists at the San Francisco Chronicle (“Green light for abuse”, Apr. 2).
April 3-4 — “Addictive” computer game blamed for suicide. 21-year-old Shawn Woolley of Hudson, Wisc. played the popular online game EverQuest a whole lot. Then he committed suicide. Now his mother Elizabeth says she plans to sue Sony Online Entertainment, saying the game should have come with a warning label concerning its “addictive” nature, and she’s lined up attorney Jack Thompson, veteran of earlier litigation attacks on videogame companies (see, for example, July 22, 1999). A psychiatrist had diagnosed Shawn with depression and schizoid personality disorder which “fed right into the EverQuest playing,” claims Mrs. Woolley. “It was the perfect escape.” A specialist in “computer addiction” appears on cue in the article, as if summoned by the lawyer, to say that “The manufacturer of EverQuest purposely made it in such a way that it is more intriguing to the addict” and that it “could be created in a less addictive way, but (that) would be the difference between powdered cocaine and crack cocaine.” Moreover, “[h]aving low self-esteem or poor body image are also important factors, he said.” (Stanley A. Miller II, “Death of a game addict”, Milwaukee Journal Sentinel, Mar. 30) (and see letter to the editor from attorney Jack Thompson, Apr. 11). (DURABLE LINK)
April 3-4 — Microsoft case and AG contributions. Columnist Robert Novak rather rudely totes up the very considerable contributions that Microsoft’s rivals have been making to the campaigns of state attorneys general like Bill Lockyer in California and Carla Stovall in Kansas, both of whom are running for governor (Robert Novak, “Money driving Microsoft case?”, Chicago Sun-Times, Apr. 1) (& see Apr. 15). Blogger Ed Driscoll reminds us that AGs also have another constituency that wants them to keep the pressure on Redmond, namely trial lawyers who stand to gain a fortune from the private suits against the company (Mar. 31; see Jeff Taylor, “Symposium: Microsoft Endgame?”, National Review Online, Nov. 5, 2001).
April 3-4 — Ninth Circuit orders Agent Orange payments. The federal appeals court that does so much to provide this site with material has ordered that Vietnam veterans who were exposed to Agent Orange and later contracted prostate cancer and diabetes be given disability payments, “setting a precedent that could cover many illnesses linked to the defoliant.” (“Some Agent Orange Veterans Win Payments”, Reuters/New York Times, Apr. 2). The problem remains that health authorities are by no means agreed that the compound had anything to do with those ailments or most of the others complained of. (Howard Feinberg, “Vetting Agent Orange”, TechCentralStation.com, Mar. 11; Reason links, Feb. 28) (see Jan. 7-8).
April 1-2 — Intel Corp. versus yoga foundation. For more than a year lawyers for giant chipmaker Intel Corp. have been menacing the Yoga Inside Foundation of Venice, Calif., claiming that the nonprofit group’s name infringes on its own “Intel Inside” trademark. “Yoga Inside has nothing to do with computers. It provides free yoga classes in schools, treatment facilities, shelters, prisons and underprivileged communities.” Founder Mark Stephens says the similarity of the slogans “never even crossed my mind” until the company complained. Because of the large sums it has spent to promote its trademark, “Intel argues, the linguistic construction ‘(Blank) Inside,’ whether concerning state-of-the-art technology or a centuries-old spiritual practice, should uniquely belong to the chipmaker.” As for the bad karma to be had in picking on a little group like this, “We’re certainly sensitive about that,” said Intel spokesman Chuck Mulloy. “But our hands are tied because of the way the law is structured”. (David Lazarus, “Intel forces yoga group to fight for its name”, San Francisco Chronicle, Mar. 29; Slashdot thread) (DURABLE LINK)
April 1-2 — No more ANZAC Day marches? Australia has rapidly Americanized its liability system and is now paying the price in the form of a drying up of insurance for local events such as ANZAC Day, which honors veterans. “Federal Assistant Treasurer Helen Coonan called [a Mar. 27] forum to share ideas after a series of community events had to be cancelled because of the insurance crisis. … Earlier, Senator Coonan said it was common sense to restrict the ability of those injured while drunk, drug-affected or committing a crime to sue for compensation.” (“States thrash out insurance crisis”, AAP/News.com, Mar. 27; “Quick insurance savings ruled out”, AAP, Mar. 27). With medical claims spiraling, New South Wales health minister Craig Knowles has warned that the nation’s “main medical malpractice insurer could collapse within weeks”, which could leave 60 percent of Australia’s doctors “uninsured for private practice work, and throw the health system into chaos”. (Mark Robinson, “Doctors’ insurer on brink of collapse”, Sydney Morning Herald, Mar. 22). (DURABLE LINK)
April 1-2 — Roger Parloff on 9/11 fund. “If the victims may have no viable claim in the tort system after all, because no one was really at fault for their deaths other than the terrorists, then why must a compassion-driven, taxpayer-financed fund pay what the tort system might theoretically have extracted from a totally hypothetical, deep-pocketed, unambiguously guilty defendant? … [Critiques of the Feinberg proposals as insufficiently generous] demonstrate the otherworldly sense of entitlement that the tort system now fosters.
“In setting up an alternative to the tort system, Congress made an admission that cannot be retracted. … What they said, in essence, was this: In all probability, skilled plaintiffs’ lawyers representing sympathetic victims would convince juries that the airlines were responsible for what happened. That’s because plaintiffs’ lawyers have become expert at redirecting blame from judgment-proof targets toward minimally blameworthy, solvent targets. We all know that such ‘fault’ is, to some degree, a fiction. It’s just a compassionate way to ensure that grievously injured, inadequately insured people get taken care of. The trouble is, when catastrophes get big enough, not even corporate entities are sufficiently deep-pocketed to pay without other innocent human beings suffering as a result. In blaming and bankrupting the airlines — or the private security firms, or the airports, or the municipalities that operate them, or Boeing Corporation, or any of the other usual suspects — we will obviously be scapegoating minimally blameworthy corporations for the nation’s universal unpreparedness. In so doing, we will be creating new waves of innocent victims: airline employee-shareholders who, like Enron’s, see their retirement funds vaporize; public and private employees who are thrown out of work; local residents whose public services deteriorate and whose taxes rise when their local municipal authorities in New York, New Jersey, or Boston go broke.” So now how about applying those lessons in other areas of mass tort litigation? (Roger Parloff, “Tortageddon”, The American Lawyer, Mar. 18). (DURABLE LINK)
April 1-2 — Gary & Co. shenanigans at Maris trial. Last August, after a three-month trial, a Gainesville, Fla. state court jury awarded the family of late baseball star Roger Maris $50 million against Anheuser-Busch Inc. in a dispute over the termination of a beer distributorship. The family had earlier lost an antitrust case against the beer company in federal court. They were represented at the August trial by noted Stuart, Fla. attorney Willie Gary (slavery reparations 1, 2, 3, Loewen, Disney, Coke, Gannett, Microsoft, etc.) who joined the family’s legal team two months before trial on a contingency fee basis.
Court records depict the trial, presided over by senior judge R.A. Green Jr., as a veritable carnival of lawyer misconduct. “At the beginning of this trial,” wrote Judge Green, “it became apparent to the court that counsel, primarily plaintiff’s counsel, would ‘press the limits’ of proper conduct and compliance with directives of the court.” Judge Green found two attorneys on Gary’s team, including his co-counsel and partner Madison McClellan, to be in contempt, whicle Gary himself “was ejected from the courtroom at one point and silenced by the judge on another occasion for uttering a profanity”. Moreover, “the Maris legal team sent a private investigator to conduct surveillance on the defense lawyers’ offices”, to which the defense lawyers responded with counter-surveillance. Judge Green then took the highly unusual step of appointing special master Stephen N. Bernstein to conduct a confidential investigation of lawyer misconduct at the trial. In a 35-page report, the special master concluded that the behavior of Gary and the other lawyers was “an insult to the integrity of the legal system,” and “resulted in an atmosphere that elevated tactics in pursuit of opposing counsel over the duty to pursue truth.” (Larry Keller, “Maris Trial Had Its Share of Misbehaving Lawyers”, Miami Daily Business Review, Jan. 28). Updates Jan. 5 and Jan. 7, 2004: (ethics charges against Gary thrown out by judge); Sept. 5, 2005 (case and related litigation settle for sum in excess of $120 million). (DURABLE LINK)
April 1-2 — New traffic records on Overlawyered.com. Our best month ever for number of pages served (March), best week ever (last week) and best day ever (last Wednesday). Thanks for your support!
April 19-21 — Pitcher hit by line drive sues maker of baseball bat. Hurling for the Pittsfield (Ill.) High School baseball team, Daniel Hannant put one over the plate to a batter from opponent Calhoun High School, who smacked the ball in a line drive straight at the pitcher’s mound where it hit Hannant on the head. Now Hannant is suing … guess who? The maker of the baseball bat, Hillerich & Bradsby, known for its trademark Louisville Slugger. (“Lawsuit comes out swinging”, Chicago Tribune, Apr. 18) (& see letter to the editor, Jun. 14; update, Dec. 30). (DURABLE LINK)
April 19-21 — No apologies from RFK Jr. As the uproar continues in Iowa over Robert F. Kennedy Jr.’s assertion that large hog-raising operations are more of a threat to American democracy than Osama bin Laden, Kennedy’s office has sent word to the Des Moines Register not to expect an apology or retraction. (Mark Siebert, “Kennedy stands by hog-lot remark”, Apr. 18; J. R. Taylor, “To the Preening Born”, New York Press “Billboard”, Apr. 18; earlier reports on this site Apr. 15, Apr. 17). Far from being an unconsidered slip of the tongue, the comparison seems to have been a feature of Kennedy’s speeches for months, to judge from a report published back in January on another of his Midwestern swings: “This threat is greater than that in Afghanistan,” he was quoted as saying. “This is not only a threat to the environment, it is a threat to the American economy and democracy.” (Gretchen Schlosser, National Hog Farmer, Jan. 15, linked in WSJ OpinionJournal.com “Best of the Web” Jan. 21). And a staff attorney from Kennedy’s office has sent us a letter responding to our editor’s Wednesday New York Post op-ed on the affair, to which we append a fairly lengthy response — see our letters page.
MORE: The food-industry-defense group Center for Consumer Freedom has been on the warpath against Kennedy and his band of lawyers for a while. It quotes Iowa Agriculture Secretary Patty Judge as saying: “The true agenda of this group is to sue farms and take the monetary rewards back to the East Coast.” (“Trashing Pork, Cashing In”, Apr. 11). Kennedy has estimated “damages” against the industry of $13 billion: “We have lawyers with the deepest pockets, and they’ve agreed to fight the industry to the end,” he has said. “We’re going to go after all of them.” (“Kennedy’s Pork Police Hit Iowa”, Apr. 2; “Waterkeepers, Farmers Weepers”, Dec. 12, 2001) “‘We’re starting with hogs. After the hogs, then we are going after the other ones,’ referring to the poultry and beef industries.” (“Warning”, Jan. 16, 2001, citing “Concerns that pork suit may be extended to other areas,” Des Moines Register, Jan. 8, 2001). (DURABLE LINK)
April 19-21 — Traffic-cams, cont’d. In the controversy (see Apr. 8-9) over the uses and abuses of automated traffic camera systems, a reader writes in (see letters page) to say we were wrong to describe Lockheed Martin as the current contractor on the systems; it actually sold the operation last August to another company. Our apologies. And Eugene Volokh reports on his blog (Apr. 17) that he found some inaccuracies in Matt Labash’s Weekly Standard investigative series on the cameras which Labash and the Standard have been happy to correct. See also “Hawaii scraps ‘Talivan’ traffic cameras”, AP/ABC News, Apr. 11. (DURABLE LINK)
April 19-21 — Clipboard-throwing manager = $30 million clipping for grocery chain. The Ralphs supermarket chain in California had a store manager who over the course of a decade “physically and verbally abused six female Ralphs employees by calling them vulgar names, manhandling them, and throwing items like telephones, clipboards and, in one instance, a 30- to 40-pound mailbag, at them.” So a San Diego jury awarded them $5 million each in damages. (Alexei Oreskovic, “$30M Awarded in Sex Harassment Suit Against Grocery Chain”, The Recorder, Apr. 9)(& update Jul. 26-28: judge cuts total award to $8 million). (DURABLE LINK)
April 19-21 — See you … at the Big Apple Blog Bash Friday night. (DURABLE LINK)
April 18 — “Tampa Taliban” mom blames acne drug. By reader acclaim: “The family of 15-year-old Charles Bishop has filed a $70-million lawsuit against the maker of acne medication Accutane, saying nothing else explains the teenager’s suicidal flight into a downtown Tampa high-rise.” Bishop, whose father bore an Arab surname, left a suicide note praising Osama bin Laden; the county medical examiner’s office found no trace of Accutane in his bloodstream, although it says that does not rule out the possibility that he might have been on the medication, for which he had been written a prescription. Although the maker of the widely used acne drug denies that it causes psychosis or suicidal impulses, its cautious consent form “required the Bishops to agree to tell their physician ‘if anyone in the family has ever had symptoms of depression, been psychotic, attempted suicide, or had any other serious mental problems.’ Julia Bishop, however, did not reveal that in 1984, she and Charles’ estranged father failed in a bloody suicide pact during which she stabbed him with a 12-inch butcher knife.” Mrs. Bishop’s lawyer, Michael Ryan of Fort Lauderdale, calls that earlier suicide pact incident “completely irrelevant”. (Robert Farley, “Suit: Drug behind suicide flight”, St. Petersburg Times, Apr. 17; Natashia Gregoire, “Teen Pilot’s Family Sues Drug Maker”, Tampa Tribune, Apr. 17; “Accutane acne drug maker sued over suicide”, USA Today/Reuters, Apr. 16; Broward Liston and Tim Padgett, “Despair Beneath His Wings”, Time, Jan. 13; Howard Feinberg, “Is Accutane to Blame?”, TechCentralStation.com, Apr. 18; see Feb. 1). Updates: manufacturer wins first jury trial (Margaret Cronin Fisk, “Suits Probe Acne Drug, Depression”, National Law Journal, Apr. 25; Michael Fumento, “The Accutane Blame Game”, National Review Online, May 9). (DURABLE LINK)
April 18 — Judge compares class action lawyers to “squeegee boys”. A Florida judge has rejected the tentative settlement of a shareholder lawsuit filed by Milberg Weiss Bershad Hynes & Lerach against power company Florida Progress Corp. over a 1999 merger, saying the evidence indicated that the suit did not leave class members in a better position than if it had never been filed. Added Pinellas County Judge W. Douglas Baird: “This action appears to be the class litigation equivalent of the ‘squeegee boys’ who used to frequent major urban intersections and who would run up to a stopped car, splash soapy water on its perfectly clean windshield and expect payment for the uninvited service of wiping it off.” (Jason Hoppin, The Recorder, Apr. 17). (DURABLE LINK)
April 18 — Welcome Humorix.org readers. The Linux-humor site started linking to us way back in 1999, if we remember correctly. Also sending us visitors lately: Auckland (N.Z.) District Law Society, Mar. 14 (“For a change of pace, spend some time with this digest of news stories … Most cases reported on are from the U.S., but there are quite a few examples from Europe, Australia, and elsewhere”); WTIC-AM Hartford, “Morning Links”, Apr. 7; American Civil Rights Union “ACLU Watch”, Nintendominion “Site Unseen”, Mar. 31; Dog Brothers Martial Arts (Hermosa Beach, Calif.), Mutual Reinsurance Bureau, Anne Klockenkemper (Univ. of Florida) Media Law Resources, Smith Freed & Eberhard P.C. (attorneys at law, Portland, Ore.), Univ. of Nevada-Reno Tau Kappa Epsilon, RKKA.org (Russian Red Army-themed wargaming); Fureyous.com, Mar. (“My dream site, a site where I can find the entire downfall of civilization due to frivolous and pathetic lawsuits and legal actions”), and many more. (DURABLE LINK)
April 17 — New York Post op-ed on RFK Jr. & hogs. Our editor has a piece today on the op-ed page of the New York Post about the furor that broke out in Iowa when celebrity environmentalist Robert F. Kennedy, Jr. told a rally that large-scale hog farms are more of a threat to America than Osama bin Laden and his terrorists. For links to the local Iowa coverage, see our item here from Monday, of which the Post op-ed is an expansion. (Walter Olson, “Osama, the Pigs and the Kennedy”, New York Post, Apr. 17).
April 16-17 — Pharmaceutical roundup. The total cost of the settlement over the diet compound fen-phen has ballooned to more than $13 billion, swollen by mass recruitment by law firms of claimants who defendants believe have suffered no ill effects from the compound at all aside from possible worry. “Wyeth’s general counsel, Louis L. Hoynes Jr., said he believes that in a different legal climate his company might have been able to settle all serious claims for less than $1 billion. That would amount to an average of $1 million each for 1,000 cases.” (L. Stuart Ditzen, “Mass diet-pill litigation inflates settlement costs to $13.2 billion”, Philadelphia Inquirer, Apr. 9 — whole article well worth reading). Lawyers for a group of British women have filed what is believed to be the first injury suit over the “third-generation” birth control pill, which they say raises the risk of blood clots, and similar suits are expected to follow in the United States (Mary Vallis, “U.K. suit targets perils of The Pill”, National Post, Mar. 5). In one of the more recent applications of the U.S. Supreme Court’s Daubert doctrine, courts have dismissed several lawsuits seeking to blame Pfizer’s anti-impotency drug Viagra for users’ heart attacks, ruling that the expert testimony in the cases was not based on scientific principles that had gained “general acceptance.” (Tom Perrotta, “Viagra Cases Dismissed”, New York Law Journal, Jan. 22). The Nov. 9, 2001 installment of CBS’s “48 Hours” launched a one-sided attack on psychiatric drugs used to treat attention deficit and hyperactivity and told the stories of two parents who say their use of the ADHD drug Adderall caused them to behave irrationally, resulting in the death of their children; but Hudson Institute fellow Michael Fumento finds that much was misstated or left out in the network’s account, including the exact role of the trial lawyers hovering in the background (Michael Fumento, “Prescription for Bias“, “Dawn Marie Branson: A Sad Story Only Half Told“) And although the U.S. Food and Drug Administration has not chosen to give a green light for the reintroduction of silicone breast implants for American women following the litigation-fueled panic that drove them from the market, they have regained popularity among women in Canada, reports the CBC (“Silicone implants back in style”, Sept. 20, 2001). (DURABLE LINK)
April 16-17 — A DMCA run-in. Tom Veal’s Stromata site, which covers topics ranging from pension regulation to science fiction, had a run-in a few days ago with its hosting service, Tripod, which abruptly closed down access to the site and then took its sweet time about reopening it. The reason? Tripod had received a nastygram from a law firm charging that Stromata was in violation of the Digital Millennium Copyright Act, not because it had posted any copyrighted material itself, but because it had linked to another site which had (it said) posted an unauthorized translation of a widely discussed piece on terrorism by Italian journalist Oriana Fallaci. Unfortunately, as Veal notes, the incentives under DMCA are for hosts to muzzle speech in haste and un-muzzle at leisure. (“Et Cetera”, Apr. 9). (DURABLE LINK)
April 16-17 — Unlikely critic of litigation. The Washington group Judicial Watch files lawsuits at a manic clip, but now its founder Larry Klayman is taking to the mails to decry our national problem of excessive litigiousness. “One may liken the overall effect of Klayman’s direct-mail sermon against frivolous lawsuits to that of a Weight Watchers commercial starring Marlon Brando or a temperance lecture given by Hunter S. Thompson.” (Tim Noah, “Larry Klayman Decries Evils of Litigation!”, Slate, Apr. 3). (DURABLE LINK)
April 15 — RFK Jr. blasted for hog farm remarks. Robert F. Kennedy Jr., the highest-profile spokesman for the developing alliance between trial lawyers and some environmentalist groups (see Dec. 7, 2000), “made an ass of himself” in remarks last weekend at a Clear Lake, Ia. rally, according to veteran Des Moines Register political columnist David Yepsen. Kennedy’s “statement that large-scale hog producers were a bigger threat to America than Osama bin Laden’s terrorists has to be one of the crudest things ever said in Iowa politics. … [Kennedy] brought his Waterkeeper’s Alliance for a rally [in Clear Lake]. It’s a group that is threatening lawsuits against livestock industries. … Rural America needs positive solutions to this problem, not the corrosive rhetoric of another out-of-state political operative or lawsuits from greedy trial lawyers. … What was one of the finest hours of this legislative session was marred by this fool from the East. … Kennedy looks to be cashing in on his family’s name. … If his name were Bob Fitzgerald, he’d be dismissed as another one of the kooks on the fringe of this debate.” Other reaction was not much more favorable: “‘You have to be a complete wandering idiot to make that statement,’ said [Luke] Kollasch [of Algona, Ia.], whose family owns several hog farms and feed and construction companies in northwest Iowa.” (Donnelle Elder, “Big hog lots called greater threat than bin Laden”, Des Moines Register, Apr. 10; “Kennedy’s outrageous rhetoric” (editorial), Apr. 11; David Yepsen, “Kennedy cashes in on family name while acting like a fool”, Apr. 14) (DURABLE LINK)
April 15 — Updates. Stories that seem to have a life of their own:
* Richard Espinosa, “who is suing the city of Escondido because his dog was attacked by a cat inside a city library, now says the attack was a hate crime.” (see Dec. 4, 2001) (“Cat attack now described as hate crime”, MSNBC, Apr. 5)
* “The Florida Legislature has partially undone a landmark Florida Supreme Court ruling issued in November that gave slip-and-fall injury victims the upper hand in lawsuits against supermarkets and other premises owners.” (see Jan. 7). The ruling had required businesses to prove they were not negligent when presented with slip-fall claims. However, trial lawyers extracted a compromise in which plaintiffs will not have to prove that a slippery material was on the floor for long enough for the store owner to have known about it. (Susan R. Miller, “Florida Legislature Passes Bill on Slip-and-Fall Cases”, Miami Daily Business Review, Mar. 27).
* “A Hays County judge has thrown out a default judgment that would have awarded $5 million to a local woman whose near-topless image was used in a national television ad for a ‘Wild Party Girls’ video without her permission. … Judge Charles Ramsay set aside the default judgment, ruling that the plaintiff had listed the wrong company in the lawsuit, and that the video’s makers were not either properly named or properly served.” (see Mar. 6-7) (Carol Coughlin, “Topless suit is groundless, judge rules”, San Marcos (Tex.) Daily Record, Mar. 30).
* More on the symbiotic relationship between state attorneys general and Microsoft competitors (see Apr. 3-4): “An April 2000 e-mail message from the Utah attorney general’s office to Novell, revealed in court, asked for ‘guidance … preferably without involving too many people seeing this language.'” (Declan McCullagh, “Report: MS Foes Bribed Attorneys”, Wired News, Apr. 6). (DURABLE LINK)
April 12-14 — Hey, no fair talking about the pot. During a 20-hour trip from California to Texas pulling a U-Haul trailer, three young women work their way through a bag of marijuana. Of course the ensuing rollover accident is, like, practically totally the fault of their Firestone tires and the U-Haul company, or at least so their lawyers argue in a suit against those companies, even though the tires did not suffer the “tread separation” that has heretofore been seen as the distinctive source of accident risk with the now-recalled Firestones. Now Matagorda County, Tex. Judge Craig Estlinbaum has declared a mistrial at the request of plaintiff’s lawyer Mikal Watts who complained that defense attorney Morgan Copeland “had breached a pretrial order by introducing detailed evidence of marijuana use” during the trip. If we read the AP story correctly, Judge Estlinbaum had ruled that the defense could mention only that portion of the marijuana it could prove the driver consumed, and attorney Copeland, who may now face sanctions in the famously pro-plaintiff county, had improperly let jurors know about the whole bag. The Ford Motor Co. was also named as a defendant but has already settled out of the case (“Texas judge declares mistrial in Firestone case”, Yahoo/ Reuters, Apr. 5; Pam Easton, “Judge declares Firestone mistrial”, AP/ MySanAntonio.com, Apr. 6). Update — additional coverage of ruling: Miriam Rozen, “Mistrial declared in Firestone case”, Texas Lawyer, Apr. 15).
April 12-14 — In the line of fire. Post-Enron, many companies feel the need to seek out savvier and more experienced executives to sit on boards and audit committees, but with escalating fears of personal liability “attracting talent may become nearly impossible. ‘Recruiting directors for the audit committee is like calling them on deck for a kamikaze attack,’ quips [corporate finance officer Bob] Williamson.” (Marie Leone, “Audit Committee? Thanks, But No Thanks”, CFO Magazine, Apr. 5).
April 12-14 — L.A. police sued, and sued. The family of the late James Allen Beck, who died in a fiery shootout with L.A. sheriff’s deputies last August after barricading himself in his home, has filed a wrongful death claim against the sheriff’s department. During the standoff Beck, an ex-police officer with a history of stockpiling weapons at his home, shot and killed Deputy Hagop Kuredjian. (“Mother of gunman who died in shootout files claim”, Sacramento Bee, Apr. 10)(& see Feb. 23, 2000). And: “Heirs of the late rap star Notorious B.I.G. have filed a wrongful death and federal civil rights lawsuit against Los Angeles Police Chief Bernard Parks, two former chiefs and the city of Los Angeles, claiming they did not do enough to prevent the rapper’s death five years ago in a drive-by shooting.” (“Notorious B.I.G. heirs sue LAPD, officials, city”, CNN, Apr. 11).
April 11 — Don’t ban therapeutic cloning. Though not usually the petition-signing types, we (our editor) have signed a petition being circulated by Virginia Postrel’s just-launched Franklin Society opposing the current stampede in Congress to ban all scientific use of cloned human cells including “therapeutic” (non-reproductive) uses, and even the use of imported pharmaceuticals developed via such methods (see “Criminalizing Science” (symposium), Reason, Nov.). If you agree with us that this proposed law is a bad idea, you can sign the petition here and view the list of distinguished signers: despite efforts in some conservative quarters to hand down a party line opposing this potentially life-saving branch of biomedical research, support for it in fact cuts across the political spectrum. For information on contacting elected representatives, see InstaPundit, Apr. 10. (DURABLE LINK)
April 11 — Texas doctors’ work stoppage. Monday’s one-day work stoppage by South Texas doctors outraged at spiraling malpractice costs (see Mar. 15-17) drew national attention (“Texas docs protest malpractice claims”, AP/CNN, Apr. 8; see also Dean Reynolds, “Crushing Cost of Insurance”, ABCNews.com, Mar. 5 (Nev., Pa.)). And a Florida physician has launched an insurance policy for doctors “that aims to provide them with the legal resources they would need to countersue lawyers or expert witnesses filing frivolous lawsuits”. (Tanya Albert, “Frivolous suits feel wrath of Medical Justice”, American Medical News, Feb. 11). (DURABLE LINK)
April 11 — Batch of reader letters. Topics include the “pedal-extender” suit against Ford; OxyContin; suing food companies for waistline problems; police getting ticketed while responding to calls; laws mandating handicap accessibility in private homes; and why schools would send kids home when they have a slight sniffle. One writer upbraids blogger Natalie Solent for thinking it crazy to impose strict product liability on British blood suppliers that currently offer their services free of charge to patients; he thinks she (and by extension we) must not have stopped to consider that blood transfusions can transmit lethal diseases like AIDS and hepatitis.
Best of all, we hear from attorney Jack Thompson, the anti-videogame crusader who has just filed a lawsuit claiming that Sony’s EverQuest game is responsible for the suicide of a user, and he turns out to be every bit as suave and ingratiating as we dared hope (“go to Afghanistan where your anarchist, pro-drug views will be greatly rewarded”), though we wonder whether he caught the phrase “as if” in our original Apr. 3 posting. Mr. Thompson will probably not appreciate Eugene Volokh’s new satirical piece for TechCentralStation.com (“Worse than Internet Addiction”, Apr. 10). (DURABLE LINK)
April 29-30 — “Gunning for manufacturers through courts”. “A NYC council member is seeking to limit access to guns in NYC even more by opening the door to lawsuits against gun manufacturers who don’t follow a ‘corporate code of conduct’. David Yassky, a former law professor and aide for Chuck Schumer when he was a congressman, received money from 189 attorneys and others of his ‘social class’ in his successful campaign for Council, and filed an amicus brief in the US vs Emerson case encouraging a finding that in the 2nd Amendment, ‘bear arms’ meant for military use only.” (“Gunning for manufacturers through courts”, “Cut on the Bias” blog (Susanna Cornett), Apr. 22; “Metro Briefing: New York”, New York Times, Apr. 22).
On a happier note, the city of Boston last month dropped its extortionate lawsuit against the gun industry (David Abel, “Gun control forces say suits to go on”, Boston Globe, Mar. 29; “Mayor was right to drop gun case” (editorial), Boston Herald, Mar. 29 (“This case was frankly a publicity stunt — an expensive publicity stunt supposedly in the cause of ‘public health.’ But the roughly $500,000 it cost so far was diverted from other goals.”); “Boston Abandons Lawsuit Against Firearms Manufacturers”, National Shooting Sports Foundation press release, Mar. 28). (DURABLE LINK)
April 29-30 — “Erin Brockovich, the Brand”. “She gets confused with Heather Locklear and Suzanne Somers. … Over the course of last year, she became the most popular public-speaking client in the William Morris stable.” For newer readers, here’s our take. (Austin Bunn, New York Times Magazine, Apr. 28). (DURABLE LINK)
April 29-30 — Lawyers for chimps? “More and more legal reformers … are pressing to give chimpanzees legal standing — specifically, the ability to have suits filed in their names and to ask courts to protect their interests. … The advocates of granting legal standing to chimps have gained support from constitutional scholar Laurence Tribe, a Harvard Law School professor.” (David Bank, “A Harvard Professor Lobbies to Save U.S. Chimps From Monkey Business”, Wall Street Journal, Apr. 25 (online subscribers only); “Monkeying Around With the Constitution”, Ribstone Pippin blog, Apr. 25; InstaPundit, Apr. 25) (& see May 14-15). (DURABLE LINK)
April 29-30 — “Targeting “big food'”. The “campaign against Big Food is following the attack on Big Tobacco almost to a ‘T.’ … Any day now, I expect to hear that Big Food has secretly been adding special ingredients with known health risks — like salt — to their products for years to tempt the ignorant.” (Bruce Bartlett, “Targeting ‘big food'”, National Center for Policy Analysis opinion editorial, Apr. 3). It is already being argued that obesity, like smoking, imposes costs through health care provision on the non-obese, allegedly justifying more intensive government regulation of lifestyle choices (Pierre Lemieux, “It’s the Fat Police,” National Post (Canada), Apr. 6). And a 1998 revision by the federal government of its Body Mass Index standards more or less ensures that a large portion of the population will be considered to be suffering from a weight problem; according to the index, NCAA basketball stars Lonny Baxter of Maryland, Oklahoma’s Aaron McGhee, Kansas’s Nick Collision and Indiana’s Tom Coverdale are all considered “overweight” and in need of more exercise. (“Husky hoops stars?”, Center for Consumer Freedom, Mar. 27). (DURABLE LINK)
April 26-28 — “Positive Nicotine Test To Keep Student From Prom”. In Hartford City, Ind., Blackford High School has banned senior Rob Mahon, 18, from the senior prom after he tested positive for nicotine in a random drug test. Mahon, who is the editor of the school newspaper, “did not smoke on school property and is upset that he’s being punished for an activity that is legal for someone his age.” School officials, however, said that Mahon “knew the rules prohibiting drugs, alcohol and nicotine before he agreed to the testing that’s required for those in extracurricular activities.” The Indiana Civil Liberties Union is planning to represent him in a legal challenge. (TheIndyChannel.com, Apr. 25). Update May 10-12: school backs down. (DURABLE LINK)
April 26-28 — “Support case hinges on failed sterilization”. An attorney for plaintiff Heather Seslar is attempting to convince the Indiana Supreme Court that the doctor whose effort to sterilize Seslar fell short, with the result that she became pregnant and gave birth to a healthy baby girl, should pay for the entire cost of raising the child to adulthood. “A lower court already has sided with Seslar. Unless the Supreme Court overturns that decision, Indiana would become the fifth state to grant parents who underwent sterilization the right to sue doctors for the costs of raising an unexpected child. California, New Mexico, Oregon and Wisconsin also recognize the right.” (Vic Ryckaert, Indianapolis Star, Apr. 4). (DURABLE LINK)
April 26-28 — Columbia Law School survey on public attitude toward lawyers. A new nationwide survey commissioned by Columbia Law School asked a thousand respondents nationwide what they thought of the profession. It “contains some disheartening news for lawyers. … A full sixty percent of respondents said lawyers are overpaid, compared with a mere two percent who thought lawyers underpaid.” Thirty-nine percent considered lawyers either especially dishonest or somewhat dishonest, while 31 percent found them especially honest or somewhat honest, which left them faring better than politicians in the honesty ratings but sharply worse than police. Finally, respondents were asked: “Do you believe that lawyers do more harm than good by filing lawsuits that may raise the cost of doing business, or do they perform a beneficial role by holding big companies accountable to the law?” The wording of this question is decidedly peculiar — its first half, for example, states the case critical of trial lawyers about as ineptly as it is possible to do — and yet the side holding that lawyers “perform a beneficial role” prevailed by only a fifty to forty-one percent margin. (Michael C. Dorf, “Can the Legal Profession Improve Its Image?”, FindLaw, Apr. 17). (DURABLE LINK)
April 25 — “Disability rights attorney accused of having inaccessible office”. “The attorney who sued Clint Eastwood over disability accommodations at his hotel near Carmel was himself sued Tuesday on allegations his office bathroom was not wheelchair friendly. The federal suit was brought by George Louie, executive director of Oakland-based Americans with Disabilities Advocates. He alleges the bathroom and other amenities at attorney Paul Rein’s office in Oakland violate the Americans with Disabilities Act.” (AP/Contra Costa Times, Apr. 23)(see Oct. 2, 2000, Sept. 21, 2000 and links from there). Update: the allegations, which Rein vigorously contested, were later dropped without payment, according to court records (Joy Lanzendorfer, “Enforced Compliance”, MetroActive, Dec. 26, 2002). (DURABLE LINK)
April 25 — Mold sweepstakes: You May Already Be a Winner. “Entertainer Ed McMahon is suing his insurance company for more than $20 million, alleging that he was sickened by toxic mold that spread through his Beverly Hills house after contractors cleaning up water damage from a broken pipe botched the job.” (“Ed McMahon sues over mold, says dog died”, Los Angeles Times/ AZCentral.com, Apr. 9). Buyers of homeowners’ insurance may wind up among the losers: “State Farm, the largest insurer in California representing 22 percent of the market, decided last week that it would no longer write new homeowner policies in the state starting May 1. While that’s partly due to past losses, it’s also in large part due to the rising cost of mold-related claims. … In Texas, which has had the most claims increases [over mold] in the nation, rates have already nearly doubled for many homeowners.” (Deborah Lohse, “Mold becomes toxic issue to homeowners, insurers”, San Jose Mercury News, Apr. 23). Mold claims “could be the next asbestos. Yes, there’s a bit of difference: Asbestos fibers are known to cause disease and death. Whether household mold can do so is, to put it charitably, a matter of debate. But that hasn’t slowed the litigation over mold.” (Mary Ellen Egan, “The Fungus that Ate Sacramento,” Forbes, Jan. 21). Update May 21, 2003: McMahon’s claim said to have reaped $7 million settlement.
TEXAS MOLD LINKFEST: “Insurers estimate they paid out $670 million for mold-related property damage in Texas in 2001, more than double the total in 1999.” (Egan, Forbes, link above). See (all links 2001:) Jacob Sullum, “Fungi phobia”, TownHall.com, Aug. 21 (the wonderfully named Dripping Springs case); Bill Summers, “Mold cases could have a rotten effect”, San Antonio Express News, Oct. 18, reprinted at Texans for Lawsuit Reform; Eric Berger, “Mold Fears Overblown, Experts Say”, Houston Chronicle, July 12; CALA Houston links; Shannon Buggs, “Tackling Questions on Mold Coverage”, Houston Chronicle, Nov. 18; W. Gardner Selby, San Antonio Express News, “Coverage cut under review”, Nov. 13. (DURABLE LINK)
April 25 — Durbin’s electability. Illinois Democratic Senator Dick Durbin, a key Capitol Hill ally of the trial lawyers (he was the point man in defense of their unconscionable fees in the tobacco affair, for example), ran less well in his recent primary than incumbents usually do. Could he be headed for one-term status, like former Sen. Carol Moseley-Braun? (Steve Neal, “Durbin lacks the profile of a winner”, Chicago Sun-Times, Apr. 24)(see July 7, 2000). (DURABLE LINK)
April 23-24 — Fieger’s ivied walls. Controversial attorney Geoffrey Fieger is in the news again after losing a murder case for a client in Sarasota, Fla.: “Chief Circuit Judge Thomas Gallen said Fieger should be punished for calling two men who served on the jury ‘Nazis’ and ‘creeps.’ Fieger fired back, saying he has a First Amendment right to say bad things about jurors and that he may sue the judge for saying otherwise. Gallen said the Michigan lawyer’s ‘outrageous’ behavior violated a Florida Bar rule that says an attorney ‘shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of’ court officials and jurors.” Fieger client Ralf Panitz, 42, “was convicted March 26 of killing his ex-wife, Nancy Campbell, on July 24, 2000, the same day he, Campbell and his new wife appeared on an episode of the ‘Jerry Springer Show.'” (Jennifer Sullivan, “Attorney, judge in war of words”, Manatee (Fla.) Herald-Tribune, Apr. 2).
Civility disputes involving Fieger are of course a staple item on this site. Last year, for example (see May 3, 2001), he faced a probe before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges. For more examples of the Southfield, Mich.-based attorney’s style, see Sept. 14, 1999 and May 31, 2001. So it came as a bit of a shock to learn that the litigator’s name is now going to be adorning a prominent Michigan institution of legal education. According to Michigan State University’s law school, “Fieger has made a gift of $4 million to initiate and sustain the Geoffrey Fieger Trial Practice Institute,” billed as “the first trial practice institute at a law school designed specifically to train law students as successful trial lawyers.”
Rising to the dignity of the occasion in a press release, MSU-DCL dean and professor Terence Blackburn endorsed the school’s new benefactor in language well suited for a client recruitment brochure. “Mr. Fieger is arguably the most preeminent [sic] trial lawyer in the country, and he is an inspiration to our students,” Blackburn said. “It is Mr. Fieger’s dedication to his clients, his thorough preparation for each case and his skill in the courtroom that serve as a model for this institute.” (“Fieger’s $4 Million Gift To Law College at MSU Establishes Nation’s First Trial Practice Institute for Law Students”, MSU news release, Nov. 27; “$4 million gift to MSU-DCL funds trial practice institute”, MSU News, Dec. 6; “Fieger’s gift”, Lansing State Journal, Nov. 29 (defense of grant); letter from concerned alum, Detroit Free Press, Nov. 28). Last year the Detroit Free Press found Fieger unapologetic about charges by his opponents that he bullies and badgers witnesses on the stand. (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “‘Trials are battles,’ Fieger said. Intimidating witnesses ‘is what trial attorneys do,’ he said.” Can we assume that it will therefore be a skill taught at the new institute? (DURABLE LINK)
April 23-24 — “Woman sues snack-food company for spoiling diet”. By reader acclaim: “A woman is suing a snack food company for $50 million saying its label on Pirate’s Booty corn and rice puffs foiled her diet. … Pirate’s Booty, manufactured by Robert’s American Gourmet Food, Inc., was recalled in January after the Good Housekeeping Institute found it contained 147 calories and 8.5 grams of fat, while its label said it contained only 120 calories and 2.5 grams of fat.” Now Meredith Berkman, 37, is suing claiming the mislabeling caused her to suffer “emotional distress” and “weight gain…mental anguish, outrage and indignation.” (AP/Salon, Apr. 13). Update: Feb. 9, 2006 (Berkman objects to settlement). (DURABLE LINK)
April 23-24 — Norway toy-ad crackdown. Yes, reports Bjorn Staerk on his blog (Mar. 25, Apr. 2), the Scandinavian country really does have an Ombudsman for Gender Equality whose apparent duties include monitoring sexism in toy ads, and yes, this ombudsman really is proposing to ban a particular toy ad which refers to boys as “tough”. (DURABLE LINK)
April 22 — Lawyers puree Big Apple. Figures from the City of New York’s fiscal year 2000 show that the city paid a record $459 million in judgments and settlements, a 10.5 percent increase over the previous fiscal year. $406 million of that figure was laid out on personal injury claims, up 11.5 percent from fiscal 1999. (Elaine Song, “Costs Climb for the City”, New York Law Journal, Mar. 21; “New York Sees Higher Verdicts in 2001”, New York Law Journal, Mar. 21; “Tort City, U.S.A.” (editorial), Wall Street Journal, Apr. 17 (online subscribers only). (DURABLE LINK)
April 22 — “How to Stuff a Wild Enron”. P.J. O’Rourke gives a flat tire to the pols and pundits who’ve tried to get anti-capitalist mileage out of the Enron scandal (The Atlantic, Apr.).
MORE ENRON LINKS: C. William (Bill) Thomas, “The Rise and Fall of the Enron Empire”, Texas Society of CPAs (via Political Hobbyist, who generously names us “one of the more famous blogs out there in the blogosphere“); Renee Deger, “Widening the Enron Net”, The Recorder, Apr. 9 (law firms, investment banks sued); Laura Goldberg, “Enron plaintiffs target bankers’ deep pockets”, Houston Chronicle, Apr. 5; Otis Bilodeau, “Gimme Shelter”, Legal Times, Apr. 16 (“In a worst-case scenario — where damages are so high that the firm itself goes bankrupt — partners in a general partnership could be forced to pay off the damage award over their entire careers.”); Renee Deger, “Leaning on the Lawyers”, The Recorder, Apr. 15; (prospects for Vinson & Elkins, Kirkland & Ellis); “Lerach’s Enron Sweep” (editorial), Wall Street Journal, Apr. 17 (online subscribers only); bloggers “Robert Musil” Apr. 14 and other dates, “Max Power” Apr. 10. (DURABLE LINK)
April 22 — “St- st- st- st- stop.” “A man with a stutter was turned down as a driving instructor by the British School of Motoring because he couldn’t say ‘stop’ fast enough in an emergency”. Mr. Arsenal Whittick, 39, has filed a complaint with an employment tribunal charging disability discrimination. (“Stutterer turned down as driving instructor”, Evening Standard, Apr. 11)(via andrewsullivan.com, from which our headline is also swiped). And Dave Kopel, analyzing the pending Supreme Court case of Chevron v. Echabazal (can employers exclude physically vulnerable workers from jobs that might kill them? — see Mar. 1), includes a very kind reference to this site. (National Review Online, Mar. 27). (DURABLE LINK)
April 21 — Social notes from all over: New York Blog Bash. It isn’t easy to get our editor over to Avenue B, but he brings back a glowing report of the Friday night event hosted by the formidable duo of Orchid and Asparagirl and with econ-blog-diva Megan McArdle in attendance. Not only were those present uniformly agreeable to converse with, but their weblogs — see the RSVP list at Daily Dose for a not quite complete list — collectively make for an afternoon’s browse that’s about 8,500% percent more enjoyable and stimulating than is afforded by, say, the Sunday New York Times. Update: photos courtesy Asparagirl (our editor is the one with the beard and dark clothes). (DURABLE LINK)
March 20-21 — No more restaurant doggie bags. In Australia, the restaurant doggie bag is in decline because of fears that patrons will store food at improper temperatures, allowing the growth of food-poisoning bacteria. “The Australian Leisure and Hospitality Group, which has 142 hotel restaurants across the country, has banned patrons from taking home leftovers. Victoria has already brought in anti-doggie-bag legislation, with other states tipped to follow before the end of the year, Mr Deakin said. ‘If we are the cooker of the food we are liable,’ he said.” (“Restaurants ban doggie bags”, The Advertiser (Adelaide), Mar. 18). Meanwhile, in the U.K.: “Some restaurants in Britain are forcing customers who like their meat rare to sign a disclaimer form before eating due to fears of the risk of E. coli and salmonella poisoning, the Sunday Times newspaper reported.” (“British Eaters Who Like Rare Meat Sign Disclaimers”, Reuters/Yahoo, Mar. 18).
March 20-21 — “School told to rehire cocaine abuser”. Florida: “Escambia County Schools must rehire a school employee who reported to work with cocaine in his system – 50 times above the cutoff level for a positive drug test. Robert K. Sites III, 37, initially was terminated after arriving at Brentwood Middle School on Aug. 10 in an agitated and nervous state. A ‘reasonable suspicion’ drug test revealed cocaine metabolites in his system. An independent arbitrator ruled this month that a penalty less severe than termination was warranted and wants Sites rehired with full pay and benefits.” (Lisa Osburn, Pensacola News Journal, Mar. 15). Under zero tolerance rules, of course, schools can suspend or even expel a student for possessing aspirin or other ordinary over-the-counter drugs.
March 20-21 — Lawyer: deep-pocket defendants are real culprits in identity theft. Perpetrators of the fast-growing crime of “identity theft” sometimes use fraud, stealth or dumpster-diving to obtain data on potential victims from businesses in the form of credit card or employment data. “Companies that contribute to identity theft by failing to protect their customers’ and employees’ Social Security numbers and other personal information could be held liable, some observers warn. Although relatively few cases of this type have been filed so far, some observers predict that with the incidence of identity theft rising, more frustrated victims will successfully sue companies that fail to protect this information … Sean B. Hoar, Eugene, Ore.-based assistant U.S. attorney for the District of Oregon, said he has spoken to groups of plaintiffs attorneys on the topic and the reaction has been ‘My gosh, this is a huge new area for civil litigation because of the likely liability that will be incurred.’ ‘I think that victims of identity theft are becoming much more cognizant of the fact that they have been hurt more by the negligent or careless acts of the companies than they are by the criminals,’ said Mari Frank, a Laguna Niguel, Calif.-based attorney who has specialized in the area of identity theft since she became a victim herself in 1996.” (Judy Greenwald, “ID theft suits in the cards”, Business Insurance, Mar. 4, subscriber-based site).
March 20-21 — McElroy on wrongful life suits. FoxNews.com columnist Wendy McElroy surveys the burgeoning field of “wrongful life” and “wrongful birth” suits following “the birth of a disabled child whom the mother would have aborted had she received adequate medical information.” The concept has been familiar in American courts for years and has cropped up in France and Australia recently as well. “The human cost of this new litigation is terrible. Parents publicly tell a child that they wish he or she had never been born.” (Wendy McElroy, “Parents Sue Doctors for ‘Wrongful Birth’ of Disabled Child”, FoxNews.com, Mar. 19)(see Aug. 22, 2001).
March 19 — Teen beauty pageant lands in court. In suburban Detroit, the outcome of this year’s Miss Teen St. Clair Shores beauty pageant was tainted, according to parent Barbara Scheurman’s legal complaint on behalf of her 15-year-old daughter Jennifer, which is expected to reach a local court next month. The controversy concerns whether the winning contestant should have been allowed to redo her talent presentation; a $200 savings bond and crown was the prize. (Tony Scotta, “Shores pageant judge defends her ruling”, Macomb Daily, Mar. 13).
March 19 — So depressed he stole $300K. Minnesota prosecutors are charging appeals court judge Roland Amundson, 52, who has resigned from the bench, with stealing more than $300,000 from a trust fund that a father had left for his developmentally disabled daughter. The judge’s attorney, Ron Meshbesher, said his client plans to plead guilty and “attributed Amundson’s actions to depression that followed his mother’s death”. According to prosecutors, however, his honor was not too depressed to put part of the money to use “to buy bronze statues, marble flooring, antique chairs and other items for himself.” (Pam Louwagie and Randy Furst, “Judge charged with stealing $300,000 from woman’s trust”, Minneapolis Star Tribune, Feb. 27; Elizabeth Stawicki, “Court’s credibility damaged by Amundson, judges say”, Minnesota Public Radio, Mar. 11). Update July 1-2: sentenced to 69 months. (DURABLE LINK)
March 19 — “Bad movie, bad public policy”. Among reasons to skip the Denzel Washington vehicle John Q: “at the end of the movie, we see real footage of Hillary Clinton and Jesse Jackson advocating for expanded federal health insurance. Last time I checked, though, countries with government-run health plans were less likely to give dying kids organ transplants, or the powerful drugs needed to keep their bodies from rejecting the new organs after the operation.” (Robert Goldberg (Manhattan Institute), “Painful John Q“, National Review Online, Mar. 8).
March 18 — Injured in “human hockey puck” stunt. “An Avon man has sued the Colorado Avalanche hockey team for negligence, claiming he was seriously injured during a ‘human hockey puck’ event Dec. 13, 2000, at the Pepsi Center. Ryan Netzer claims that during one of the intermissions, he was selected to take part in the event, in which he was slung by a bungee cord across the ice rink on a metal sled, according to the lawsuit filed Wednesday in Denver District Court.” Joseph Bloch, Netzer’s lawyer, says the organizers omitted protective padding that was supposed to be on boards into which his client slammed, suffering two leg fractures. “Prior to the event, Netzer signed a waiver.” (Howard Pankratz, “Fan sues Avalanche over stunt injuries”, Denver Post, Mar. 15).
March 18 — Couldn’t order 7-Up in French. “A federal government employee is suing Air Canada for more than $500,000 because he could not order a 7-Up in French.” Michel Thibodeau, 34, has already won a favorable determination from the Commissioner of Official Languages over the incident on an Aug. 14, 2000 flight from Montreal to Ottawa which resulted in an altercation after Mr. Thibodeau, “who is fluently bilingual, was unable to use French to order a 7-Up”. He wants $525,000 and an apology. “‘I am not asking for a right here, I am exercising a right I already have,’ Mr. Thibodeau said shortly after filing his lawsuit.” (Ron Corbett, “Air Canada sued over language dispute”, Ottawa Citizen/National Post, Mar. 2).
March 18 — Columnist-fest. Perennial-favorite scribes come through for readers again:
* Those consumer-battering steel import quotas are just temporary, says President Bush, and if you believe that … (Steve Chapman, “Relief from imports, for as long as it takes”, Chicago Tribune, Mar. 14);
* Airport security checking is a “ridiculous charade” because of officialdom’s continued pretense that “the 80-year-old Irish nun, the Hispanic mother of two, the Japanese-American businessman, the House committee chairman with the titanium hip” are all just as likely hijacker candidates as the young Middle Eastern man (Charles Krauthammer, “The Case for Profiling”, Time, Mar. 18; see also “Profiles in Timidity” (editorial), Wall Street Journal, OpinionJournal.com, Jan. 25);
* Dave Kopel says the abusive municipal gun lawsuits have served to galvanize a firearms industry that has historically shied away from politics: “Pearl Harbor day for the gun industry was the day that [New Orleans mayor] Marc Morial filed his lawsuit”. (“Unintended Consequences”, National Review Online, Mar. 6). See also Jacob Sullum, “Too many guns?”, Reason Online, Jan. 4 (on “oversupply” gun-suit theories).
March 15-17 — Texas docs plan walkout. More than 600 physicians in the Rio Grande Valley of Texas are planning to walk off the job April 8 to protest the state’s malpractice climate (Juan Ozuna, “‘Walkout’ Planned by Physicians”, McAllen Monitor, Feb. 16; Mel Huff, “Doctors discuss fallout from lawsuit abuse”, Brownsville Herald, Feb. 21; “The Doctor is Out”, McAllen Monitor, Feb. 19; “Sick system”(editorial), Brownsville Herald, Feb. 22). In famously litigious Beaumont, only one neurosurgeon is left practicing, which Texas Medical Association vice president Kim Ross calls “a scary thing … What if a patient has a car wreck, needs a neurosurgeon, and there’s none available? It’s an hour to Houston. That ‘golden hour’ [when treatment is most beneficial] is lost.” (Vicki Lankarge, “Soaring malpractice premiums bleed doctors, rob consumers”, reprinted by Heartland Institute, Jan.) “Channel-surf wherever you will; sooner or later (probably sooner) you’ll encounter an attorney urging you to bring your problems to him or her. Some are shameless in their opportunism: Have you suffered from respiratory problems? Throat inflammation? Sinus woes? Come see me; let’s find somebody to sue.” More than half of Texas physicians had claims filed against them in 2000, the Dallas Morning News has found. (“Litigation explosion plagues physicians” (editorial), Corpus Christi Caller-Times, Jan. 24 (via CALA Houston)).
March 15-17 — “Before you cheer … ‘Sign here'”. There are few things that trial lawyers loathe with more passion than the liability waivers that schools have parents and students sign before going out for extracurricular activities such as field trips or cheerleading. They’re carrying on a state-by-state campaign to get courts to strike down such waivers, voluntarily entered or not. (Mark Clayton, Christian Science Monitor, Mar. 12).
March 15-17 — “Politicians’ Syllogism”.
“Step One: We must do something;
“Step Two: This is something;
“Step Three: Therefore we must do it.”
— Jonathan Lynn & Antony Jay in the British television series “Yes, Minister” (via Prog Review; site on show; Hugh Davies, “Celebrities and friends say fond farewell to Sir Nigel”, Daily Telegraph, Jan. 10 (memorial for show star Sir Nigel Hawthorne, who died Dec. 26)).
March 13-14 — “Greedy or Just Green?”. “In the last few days of December, Kamran Ghalchi sent more than 3,000 California businesses an unwelcome holiday greeting — legal notices claiming they were in violation of Proposition 65, a one-of-a-kind California law requiring warnings on products that contain potentially dangerous chemicals. More than half of Ghalchi’s December notices were filed against car dealers and other automotive businesses throughout the state. Warnings at gas stations are a familiar sight to Californians, but car dealers do not warn customers that buying a car could expose them to oil, gasoline and car exhaust. In a letter offering to settle with one dealer, Ghalchi demands $7,500 to settle right away: $750 of it in fines to the attorney general, the rest split evenly between Ghalchi and Citizens for Responsible Business, a new Proposition 65 enforcement group that is the plaintiff in all of Ghalchi’s December filings.”
Recent figures from Sacramento indicate that of “citizen suit” settlements by companies for failing to post Prop 65 warnings, less than eight percent of payouts go to the state, while two-thirds go to plaintiff’s attorneys’ fees and costs, and much of the remainder to freelance enforcement groups that work with the lawyers. Even California attorney general Bill Lockyer, no friend of business, detects “an odor of extortion around many of these notices that concerns me'”. (Bob Van Voris, National Law Journal, Feb. 26).
March 13-14 — U.K. soldiers’ claim: brass didn’t warn of war trauma. In Great Britain, a high court lawsuit accuses the Ministry of Defence of “failing to adequately prepare service personnel for their inevitable exposure to the horrors of war”. Nearly 2,000 potential claimants have registered an interest in the action, which seeks to recover for post-traumatic stress disorder, according to Queen’s Counsel Stephen Irwin, arguing on their behalf. “Mr. Irwin said that the case was ‘enormous’, would take a very long time and would cost a ‘great deal of money'”. (“MoD sued over trauma from ‘horrors of war'”, London Times, Mar. 4; Joshua Rozenberg, “2,000 sue MoD over psychiatric injuries of war”, Daily Telegraph, Mar. 5)(see also “Britain’s delicate soldiery”, Dec. 22, 2000).
March 13-14 — Education reforms could serve as basis for new suits. “Robin Hood” lawsuits prevailing on courts to order equalization of spending between rich and poor public school districts have been a dismal failure even on their own terms, undermining local taxpayers’ willingness to shoulder property tax burdens. But undaunted by previous fiascos, activist education lawyers figure the answer is yet more litigation: they’re hoping to latch onto new federal mandates for uniform test scores as the basis for a renewed round of lawsuits arguing that underperforming schools have a constitutional right to more money. (Siobhan Gorman, “Can’t Beat ‘Em? Sue ‘Em!”, Washington Monthly, Dec. 2001).
March 13-14 — I’ve got a legally protected bunch of coconuts. “A Slidell businessman who painted 150 green-and-white coconuts to pass out at the city’s St. Patrick’s Day parade got a visit Thursday from a business partner of the Zulu Social Aid and Pleasure Club, which has been tossing gilded and glittery coconuts on Mardi Gras for decades. ‘The guy told me that as soon as I put paint on a coconut, I was infringing on their copyright,’ said Ronnie Dunaway, who owns Dunaway’s Olde Towne Market. ‘I was absolutely dumbfounded that there were laws about what you can and can’t do with a coconut.'” (Paul Rioux, “Zulu partners clamp down on copy-cat coconuts “, New Orleans Times-Picayune, Mar. 8).
March 12 — Texas trial lawyers back GOP PAC. Sneaky? In Houston, plaintiff’s lawyers traditionally aligned with the Democratic Party are funding a “Harris County GOP PAC” which has endorsed candidates in today’s Republican primary for Supreme Court, Congress, the state legislature, and county attorney. Though unaffiliated with the official Republican organization, the PAC has sent voters a slickly produced brochure whose “logo even mimics the official logo of the Harris County Republican Party, which features an elephant inside of a star”. (“Harris County GOP PAC funded by plaintiff’s lawyers”, Citizens Against Lawsuit Abuse Houston, undated March; John Williams, “Republicans want distance from PAC”, Houston Chronicle, Mar. 7).
March 12 — Liability concerns fell giant sequoia. “The Sonora Union High School District, owner of the property, had been concerned about liability if the 85-foot-tall tree fell on its own.” (Melanie Turner, “Giant sequoia felled despite legal wrangling”, Modesto Bee, Feb. 23) (via MaxPower blog, Feb. 17).
March 12 — A “Jenny Jones Show” question. Why do ads for injury lawyers so often air on the same TV shows as debt-restructuring ads aimed at viewers desperate for financial relief? — wonders blogger Patrick Ruffini (March 8).
March 11 — Fast-food roundup. The Chicago Tribune is reporting that McDonald’s Corp. is on the verge of settling lawsuits brought on behalf of vegetarians over its use of beef extract as a flavoring agent for French fries; the terms include “$10 million to charities that support vegetarianism and $2.4 million to plaintiffs’ attorneys.” Yum! (Ameet Sachdev, “McDonald’s nears deal on fries suit”, Chicago Tribune, March 7; AP/Fox News, Mar. 9; see May 4, 2001, and Rediff.com coverage: May 4, May 8, July 3, 2001). Public health activists are taking aim at the food industry’s sinister ploy of providing customers with big portions, in a contrast with the inflationary 1970s when activists denounced the same companies’ shock-horror practice of shrinking the size of the candy bar or taco (Randy Dotinga, “Super-Size Portion Causing U.S. Distortion”, HealthScoutNews/ Yahoo, Feb. 19). Whatever happened to the old notion of “leave some on the plate for Miss Manners”, anyway? On EnterStageRight.com, Steven Martinovich analyzes the next-tobacco-izing of snack food, quoting our editor on the subject (“The next moral crusade”, Feb. 25). Also see accounts on ConsumerFreedom.com: Jan. 24, Jan. 30, Feb. 5. And a lefty commentator for a British newspaper has concluded that our battle with the waistline is really all capitalism’s fault: Will Hutton, “Fat is a capitalist issue”, The Observer, Jan. 27.
March 11 — Parole board’s consideration of drug history could violate ADA. In a case filed by inmates at the state prison in Vacaville, Calif., a Ninth Circuit panel has ruled that parole boards may violate the Americans with Disabilities Act if they regard a prisoner’s history of drug addiction as a reason to accord any less favorable disposition to his request to be turned loose early, such history counting as a disability protected under the law. Sara Norman, a lawyer for the inmates, said the ruling “might also apply to those suffering mental disabilities covered by the ADA. … The panel also suggested that the ADA covers a panoply of law enforcement decision making, including arrests.” The case “could lead to a swell of court challenges”. (Jason Hoppin, “ADA Applies to Decisions About Parole, Says 9th Circuit”, The Recorder, Mar. 11).
March 11 — Editorial-fest. Sense is breaking out all over: “The government’s impulsive entrance into the victim-compensation business was born of a one-time mix of compassion and political expediency, but it sets an unaffordable precedent at a time when the nation faces the likelihood of more terrorist acts.” (“Why Is One Terrorism Victim Different from Another?” (editorial) USA Today, Mar. 8). The Washington Post, which has helped lead the case for reform of nationwide class action procedures, is back with another strong editorial on the subject (“Restoring class to class actions”, Mar. 9). And following the lead of its sister Fortune (see Feb. 18-19), Time is out with a piece asking why workers themselves should put up with the widespread abuse of asbestos litigation (“The Asbestos Pit”, Mar. 11).
December 10 — “Halliburton Shares Plunge on Verdict”. The market clipped $3.8 billion off the giant oil field service company’s share valuation after Peter Angelos got a $30 million jury award against it. “The ruling is the fourth significant asbestos ruling against Halliburton since late October, according to Merrill Lynch … Over the last 25 years, Halliburton has settled 194,000 asbestos claims, the company said. The average payment was about $200, according to Allen Brooks, executive director at CIBC World Markets. As of Sept. 30, the company faced 146,000 open asbestos claims and 182,000 more from a former subsidiary called Harbison-Walker.” (David Koenig, AP/Yahoo, Dec. 7; Neela Banerjee, “Halliburton Battered as Asbestos Verdict Stirs Deep Anxieties”, New York Times, Dec. 8). Federal-Mogul, the big auto parts maker, became the latest large bankruptcy to result from asbestos litigation with a filing two months ago (Joe Miller, “Asbestos suits hurt Fed-Mogul”, Detroit News, Oct. 2).
“In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. …What made jaws drop was that the plaintiffs weren’t even sick–their X-rays just showed they stood an increased chance of getting sick. ‘Most of these guys have not missed a day of work in their lives,’ their lawyer said. … To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!'” (“Looking for some million-dollar lungs”, U.S. News, Dec. 17).
Some say asbestos defendants should try to avoid angering juries by paying claims without a fight, but an attorney for power plant maker Babcock & Wilcox said an uncritical approach to claims had proved too expensive for his now-bankrupt client: “In the past, you literally filled out a form in five minutes that stated the claimant had a note from the doctor saying he was coughing and had other symptoms and showed that he worked at the site. It took five to 10 minutes to fill out the form that would routinely lead to checks for thousands of dollars.” (Terry Brennan, “Firms Wary of Challenging Asbestos Claims”, The Deal, Nov. 13). And battling continues in a case (see Feb. 12-13) in which B&W and other asbestos defendants have attempted to turn the tables on leading plaintiff’s firms, arguing that they have violated racketeering laws by coaching clients’ testimony and by threatening retaliation against companies that seek a legislative solution to the litigation morass. (Mark Hamblett, “Asbestos Companies Bring RICO Suit Against Plaintiffs’ Firms”, New York Law Journal, Sept. 6). This spring defendant law firms won a court order prohibiting the plaintiff companies from questioning their former, as well as their current, employees without counsel being present — i.e., even if the former employees are eager to spill the beans they will not be allowed to do so except in the presence of someone representing their former employer. That certainly should put a chill on whistleblowing (Mark Hamblett, “Employees of Law Firms Charged With Racketeering Shielded From Interviews Without Counsel”, New York Law Journal, April 11).
Plus: Dallas alt-weekly Observer, which had run some of the best journalism on the Baron & Budd client-coaching asbestos scandal, returned with a terrific follow-up in March which we’ve unconscionably delayed in linking (Thomas Korosec, “Homefryin’ with Fred Baron”, Dallas Observer, March 29). (DURABLE LINK)
December 10 — Steve Chapman on military tribunals. “President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement. ” (Chicago Tribune/ TownHall, Dec. 6).
December 10 — Love contracts. Some lawyers continue to advise employers to get co-workers who are in amorous relationships to sign legal documents affirming that the liaison is indeed voluntary, and that they will not harass each other if it ends. A 1998 survey by the Society for Human Resource Management “found that while 88 percent of the companies that discourage workplace romances do so out of fear of sexual harassment claims, just 4 percent of such relationships resulted in claims that led to litigation.” We don’t know where that “just” comes from — a 4 percent risk of getting the employer dragged into court sounds pretty serious to us. (Torri Minton, “Caught in the pact — Couples involved in office dalliances required to sign ‘love contract'”, San Francisco Chronicle, Dec. 2). (DURABLE LINK)
December 10 — “Saudi Arabia finally gets tough on terrorism!” “We are fighting a holy war to eradicate the source of the biggest corruption on earth,” says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he’s talking about … tobacco companies, who he’s suing in a legal action in Riyadh. (Frank Gardner, “Saudi hospital fights tobacco ‘terrorists'”, BBC, Dec. 4, via Untold Millions weblog, Dec. 5) (see Nov. 16, 2000 — we’re not sure what became of that earlier action, but suspect that it didn’t fare well, since the action’s now moving to Riyadh). (DURABLE LINK)
December 7-9 — Counterterrorism agents, on their own. Gabriel Schoenfeld, writing in Commentary: “Last year, at the behest of Congress, the National Commission on Terrorism, a body of leading experts, issued findings” on U.S. vulnerability to terrorist attack. Among other problems it warned of: the nation lacks adequate counterterrorist efforts, including intelligence monitoring of terrorist groups. “According to the commission, the guidelines governing the recruitment of ‘unsavory’ sources, introduced by the Clinton administration in 1995, had created a climate within the CIA that was ‘overly risk-averse’ and that contributed ‘to a marked decline in agency morale unparalleled since the 1970s.’ That is bad enough; but the morale problem had sources beyond the restrictive guidelines. Again according to the commission, some CIA officers and FBI special agents were being ‘sued individually’ by terrorist suspects for actions taken in the course of their officially sanctioned duties. Instead of representing them in such suits, the government was letting the agents fend for themselves; those who chose to stay on the job were being forced to purchase personal-liability insurance to cover their legal bills.
“Did the commission call for an end to this preposterous state of affairs, whereby accused terrorists have been able to turn the tables on their pursuers and bring them to court? Not at all. It asked only that the government provide ‘full reimbursement of the costs of personal-liability insurance.'” (“Could September 11 Have Been Averted?”, Commentary, December (scroll to near end)).
December 7-9 — Overlawyered schools roundup. A judge has thrown out Desiree Radford’s suit claiming that it was unlawful for the city of Buffalo to lay off teachers in her son’s district without first conducting an environmental impact statement (“Judge Dismisses Mother’s Case To Stop Buffalo Teacher Layoffs”, WGRZ.com, undated). In Ohio, the case of Fairview High School junior Aaron Petitt, “who claimed he was denied freedom of speech and due process when he received a 10-day suspension for hanging posters of airplanes bombing Afghanistan on his student locker,” is ending with a denouement summed up in the Cleveland paper’s headline: “District settles case with student; he gets $2,000, lawyers $21,000”. Aaron’s lawyers are charging local taxpayers $300 an hour for their services. (Sarah Treffinger, Cleveland Plain Dealer, Dec. 1). Schools in Canada’s largest city will probably wind up in court because of an effort to raise standards: “A Toronto parent group concerned about Ontario’s tough new school curriculum will encourage parents to take legal action against the government if their children are suffering under the revamped standards.” (Lee-Anne Goodman, “Toronto parent group encourages legal action”, Canadian Press/Toronto Sun, Dec. 2). And attorney Susanna Dokupil comments on the don’t- read- grades- aloud- in- class case currently before the U.S. Supreme Court. (“Hey, Congress, Leave Us Kids Alone”, The American Enterprise, Nov. 29) (see Nov. 28). (DURABLE LINK)
December 7-9 — “Hell’s litigious angels”. John Leo’s annual who’s-a-victim roundup leads off with the touchy motorcyclists who want protected-group status in discrimination law: “America’s next official victim group may be roaring your way on their Harley-Davidsons.” (U.S. News, Dec. 10; Chris Weinkopf, “Born To Be Mild”, FrontPage, Nov. 28; see Nov. 19-20). The Boston Globe‘s Jeff Jacoby thinks this would be a good time to take a stand on behalf of the principle of freedom of association: “Bikers Demand Their ‘Civil Rights'”, Nov. 29, via Center-Right).
December 7-9 — Chrysler dodges a $250 million dart. Blessed with a favorable appellate circuit (the Fourth) and high-powered counsel (Ted Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn & Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina punitive award overturned. “The court also reversed and remanded for retrial the jury’s finding of liability and its award of [$12.5 million] compensatory damages, finding that Chrysler should have been able to introduce evidence that a child who was ejected from a Chrysler minivan was not wearing a seat belt.” (“Chrysler Escapes $250 Million in Punitives”, National Law Journal, Nov. 1). San Francisco Chronicle legal columnist Reynolds Holding says the disparate fate of punitive damages on appeal in different cases — $5 billion against ExxonMobil held excessive in the Valdez spill case, $25 million upheld against Philip Morris in a case brought by an individual smoker– suggests that critics of punitive awards may have a point about their arbitrariness: would anyone have been especially surprised had the outcome been reversed and the tobacco maker rather than Exxon had gotten its award reduced? (“Scales of justice out of whack”, Nov. 25). And if you still thought plaintiffs in our legal system bore the burden of proving their legal case, get with it: “The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection.” (Charles Toutant, “New Jersey Shifts Burden of Proof in Auto Design Cases”, New Jersey Law Journal, Sept. 11).
December 5-6 — Cosseted to distraction. New Jersey has made itself “the darling of child-safety advocates” by becoming the first state to adopt a National Highway Traffic Safety Administration recommendation that children in cars be required to ride in booster seats until they weigh 80 pounds or reach their eighth birthday. But even some conscientious parents say the new law goes too far: older kids rebel at being forced back into “baby” seating, carpools break up as adult co-workers shun the nannyized vehicles, besides which the devices cost good money. (Kaitlin Gurney, “Tough N.J. safety-seat law poses dilemmas”, Philadelphia Inquirer, Nov. 30). And the Washington Times reports a presumably unintended consequence of those red-light cameras that revenue-hungry municipalities have installed to generate citations: “Some D.C. police officers say they are slowing their response to emergencies because photo-radar cameras are ticketing them for speeding … They said they and other officers have been forced to pay the fines, and are now on edge about speeding to a crime scene and running red lights in emergencies.” (Brian DeBose, “Cops get speeding tickets from cameras”, Nov. 29).
December 5-6 — “Victims of Day-Trader Rampage Say Industry Itself to Blame”. Two years ago financially ruined day trader Mark Barton walked into two office buildings in the Buckhead section of Atlanta and massacred nine persons. Now lawyers, “arguing that Georgia tort law should evolve with the times,” are hoping to put the day-trading segment of the securities industry on trial, saying that the volatile and risky nature of its business made such a crime foreseeable. (Trisha Renaud, Fulton County Daily Report, Nov. 30). Update Jan. 9-10, 2002: judge dismisses suit against building owners and managers, but lets it go forward against two day-trading firms. (see further updateDec. 19, 2003)
December 5-6 — “EU considers plans to outlaw racism”. Free speech for me, but not for thee: “Racism and xenophobia would become serious crimes in Britain for the first time, carrying a prison sentence of two years or more, under new proposals put forward by Brussels … [the ban includes] a wide range of activities that sometimes fall into the sphere of protected political speech, such as ‘public insults’ of minority groups, ‘public condoning of war crimes’, and ‘public dissemination of tracts, pictures, or other material containing expressions of racism of xenophobia’ — including material posted on far-Right internet websites.” The “plans, drafted by the European Commission, define racism and xenophobia as aversion to individuals based on ‘race, colour, descent, religion or belief, national or ethnic origin'”. (Ambrose Evans-Pritchard, Daily Telegraph, Nov. 29). In The American Prospect, Wendy Kaminer discusses the suit filed in August against America Online for allegedly allowing participants in its chat rooms to engage in “hate speech” against Muslims: “Virtual Offensiveness”, Nov. 19 (see Sept. 3).
December 5-6 — Attorney can sue for being called “fixer”. A federal judge has ruled that Pennsylvania attorney Richard Sprague can proceed with his defamation lawsuit against the American Bar Association and its magazine, the ABA Journal, which had called him a “fixer”. Although writers often employ that term to describe the sort of political wheeler-dealer who uses connections in a perfectly lawful way to resolve people’s problems, the judge found the term might also evoke an impression that Sprague improperly “fixed” cases. (Shannon P. Duffy, “Lawyer’s Defamation Claim Against ABA Found Valid”, The Legal Intelligencer, Nov. 19). Update Nov. 30, 2003: case settles for undisclosed sum and half-page apology.
December 5-6 — Resources: terrorism and the law. Some useful jumping-off points for research and reading: Jurist; FindLaw; Federalist Society briefing papers; Brookings; New Yorker.
December 4 — There’ll always be a California. It’s a state of mind, really:
* In a notice letter sent to Nestlé, Tootsie Roll Industries Inc., Godiva and numerous other confectioners including local favorites Ghirardelli and See’s, attorney Roger Carrick of Los Angeles’s Carrick Law Group has charged the companies with violating the state’s Proposition 65 right-to-know law by failing to post warning labels on chocolate advising consumers that it contains toxic substances such as lead and cadmium. Michele Corash, a Morrison & Foerster lawyer defending Hershey and Mars in the controversy, says the Food and Drug Administration has called chocolate harmless: “What Mr. Carrick is complaining about is tiny amounts of trace minerals that are present in virtually all foods. They are in the soil, and foods that are grown in soil absorb them.” Carrick says it hasn’t been proven that all the lead and cadmium content are from natural sources, but even trial- lawyer- friendly California AG Bill Lockyer has weighed in on the side of the candy makers. (John Rosmer, “Chocolate: It’s Fattening, but Is It Toxic?”, San Francisco Daily Journal, Oct. 29, not online; Dan Evans, “Death by chocolate?”, San Francisco Examiner, Nov. 26). And Forbes explains how Prop 65 has made it possible for bounty-hunting lawyers to do very well: “Visit any doctor or dentist in California. If you don’t see signs warning you that the physician is using potentially harmful chemicals as defined by the state’s Proposition 65 (e.g., mercury fillings), haul him into court and demand $2,500 for each day he didn’t post the warnings. You get 25% of the loot, the state 75%”. (Dorothy Pomerantz, “Toxic Avengers”, Forbes, Oct. 15).
* You may have thought your home belonged to you, but some disabled-rights activists have other plans for it: “In what would be the first such rules in the nation, Santa Monica officials are considering a proposal to require that all privately built new homes and those undergoing major remodeling have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible bathroom.” (Bob Pool, “Wheelchair Access as a Must for Residences”, L.A. Times, Dec. 2).
* “Richard Espinosa, whose assistance dog allegedly was attacked by the [Escondido] Public Library’s pet cat last year, filed a lawsuit against the city yesterday seeking $1.5 million in damages.” (see May 7 and (letter from Espinosa) June 13) (& see Apr. 15, 2002) (John Behrman, “$1.5 Million Suit Filed in Library Cat Case”, San Diego Union Tribune, Nov. 28).
December 4 — An ill wind. Among those prospering in the wake of the Sept. 11 attacks: employment lawyers, whose phones may ring nonstop in a time of mass layoffs. (“Layoff Lessons”, Corporate Counsel, Nov. 21). Garry Mathiason of the management-side firm Littler Mendelson says that in addition to that, his firm “has three key advantages: sex, drugs and violence” — all sources of legal risk for employers. (Krysten Crawford, “Littler’s Labors”, The Recorder, Nov. 20).
December 4 — Headline of the day. “Sept. 11 Laws Raise Fears of Tort Reform” — Bob Van Voris, National Law Journal, Nov. 27. Love that “fears”. The NLJ does know its audience, doesn’t it?
December 3 — Can’t do anything but legislate. Some constituents are furious at Pennsylvania state representative Jane Baker, a Republican, after learning that her lawyers have filed papers in a car-accident case portraying her as “virtually unemployable” aside from her lawmaking job. “In a televised debate last fall, Baker assured viewers that, both physically and mentally, she was up to the task of representing them in Harrisburg. Asked directly if she could read and comprehend well, she replied, ‘I’m fine.’ She went on to say that a physical injury to her left arm ‘appears to be permanent, but otherwise … I’m ready to go to work’ in Harrisburg.
“Legal papers Baker filed last month paint a dramatically different portrait. If not re-elected, Baker claimed Oct. 19 in legal papers tied to her case, she will be ‘virtually unemployable’ because of her condition, which includes physical and ‘multiple cognitive defects’ that include problems remembering and recollecting what she has read.'” Baker’s suit is demanding $7.5 million in damages from Judith V. Fulmer, “a former friend who pleaded guilty to drunken driving and leaving the scene of an accident” after police say her vehicle struck Baker as she walked along a country road. (Mario Cattabiani, “Baker’s lawsuit puzzles some”, Allentown Morning Call, Nov. 4).
December 3 — “Terrorists push plots from jail”. It’s practically a tradition for American inmates to continue running criminal enterprises from their cells, but the stakes have gotten higher: investigators now realize that Mideast terrorists locked up in American prisons have repeatedly managed to communicate with outside followers to approve and even help plan further murderous attacks. The Bush administration on Oct. 31 announced a new practice of listening in on conversations between detainees and their attorneys when it determines there is “reasonable suspicion” that such communications are related to future terrorist acts; Attorney General John Ashcroft says that there are only 13 persons in custody — at the moment — for whom it would like to use such power. The detainees and their attorneys are to be advised of the monitoring, and a “privilege team” is supposed to screen the resulting information so that it does not reach the eyes of prosecutors or regular investigators. American Bar Association president Robert A. Hirshon says such monitoring is constitutional only if a judge approves it in advance under a probable-cause standard, and Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice as “unacceptable” in its current form. (Cam Simpson, Chicago Tribune, Nov. 19; Pete Yost, “Ashcroft Defends Monitoring of Inmate-Attorney Conversations”, AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, “Monitoring Attorney-Client Communications of Designated Federal Prisoners”, Federalist Society National Security White Papers, Dec. 3).
December 3 — Lending rules trip up litigation-finance firms. Class-action lawyers have repeatedly tripped up financial services firms by arguing in court that transactions characterized as cash advances (such as “rapid refunds” that tax-preparing companies issue before the actual IRS check arrives) are in reality loans, leaving companies liable if they have not made the full range of disclosures required by truth-in-lending law (see, for example, Apr. 5). So some might see a kind of poetic justice in the news from Ohio, where an appellate court has “ruled that two companies that advance money to personal injury plaintiffs on the understanding that they will be repaid only if the plaintiffs prevail, are making loans — not ‘contingent advances’ — and violated state usury and lender- registration laws.” Every so often, surprising as it may seem, the litigation community does wind up having to live by the same rules it prescribes for the rest of us. (Gary Young, “Ohio Court Rules Against Litigation-Loan Firm in Usury Case”, National Law Journal, Nov. 16) (see also letter to the editor, Oct. 22).
December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).
December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).
December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).
December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.
December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).
December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).
December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).
December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).
December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).
December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).
December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).
December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).
December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.
December 15-16 — Updates. Further developments in cases that were bound to develop further:
* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).
* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).
* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).
* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.
December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).
December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?
The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)
December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.
December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).
As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.
December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)
December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)
December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”
“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).
December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).
December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).
December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.
December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)
December 28, 2001-January 1, 2002 — Eggnog expense exacerbated. Many states artificially inflate the price of holiday cheer through measures designed to further the interests of wine and spirits wholesalers, such as laws making it virtually impossible for liquor manufacturers and importers to switch from one wholesaler to another. (Americans for Tax Reform, “Monopoly Protection Laws Target Wine and Spirits Industry”, Dec. 14).
December 28, 2001-January 1, 2002 — Law firm sued over fen-phen settlement practices. “A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised.” The suit was filed against Napoli, Kaiser, Bern & Associates on behalf of 5,600 fen-phen plaintiffs by Seattle’s Hagens & Berman. Among its allegations are that the Napoli firm resolved cases in a large batch settlement with AHP which left it with unsupervised discretion to distribute the proceeds among various clients, and that it employed a registered nurse and attorney “to tell clients why, in her ‘expert opinion,’ the settlement represented excellent compensation for their injuries. ‘Later, a charge for “expert witness fee” appeared on client closing documents,’ the complaint states. ‘Often the so-called expert fees were dated before she even came to the NKB.'” The defendants say they obtained reasonable settlements for the clients and expect to be vindicated. (Mark Hamblett, “New York Firm Accused of Intimidating Clients in Fen-Phen Litigation”, New York Law Journal, Dec. 13).
December 28, 2001-January 1, 2002 — “The Great Mouthpiece”. Don’t get too nostalgic about the good old days: long before the O.J. trial, back in the ‘teens and 1920s, there were the likes of notorious Manhattan attorney Bill Fallon. “Few Fallon clients spent a day in jail before trial and, if not acquitted, they usually enjoyed hung juries. …Fallon’ style was Runyonesque before Runyon invented it for himself. … so long as he endured in public memory, he was the archetype of the amoral criminal defense lawyer.” (William Bryk, “Old Smoke: Criminal Lawyer”, New York Press, Nov. (vol. 14, iss. 45))
December 28, 2001-January 1, 2002 — “UK women can demand to know men’s salaries”. The new law is supposed to promote “pay equity”, but officials acknowledge there may be a wee problem protecting male employees’ privacy and preventing fishing expeditions aimed at gratifying curiosity or spite rather than fingering equal pay violations. (Jo Revill, “UK women can demand to know men’s salaries”, ThisIsLondon.com, Dec. 4).
December 24-27 — Chestnuts-roasting menace averted. Citing clean-air concerns, the Berkeley, Calif. city council “has banned log-burning fireplaces in new homes and other buildings.” An environmental activist who led the drive for the ordinance is hoping in future to extend it so as to ban homeowners’ use of existing fireplaces as well. At least seven Bay Area jurisdictions, including San Jose and Palo Alto, as well as Contra Costa and San Mateo counties, have banned installation of new residential fireplaces, but Berkeley is the first to forbid new wood-fired restaurant ovens and grills in restaurants unless pollution-control equipment is added, a possible threat to the city’s thriving foodie culture of “foraged-mesquite fires cooking free-range chickens or vegan pizzas”. Famed Berkeley restaurateur Alice Waters, who “said her grill and oven did not work properly when she tried to filter the exhaust”, is among those “totally opposed” to the new law: “We’ve had a fundamental connection between fire and food since the beginning of time.” (Peter Y. Hong, “Cozy Domestic Symbol Takes Heat in Berkeley”, L.A. Times, Dec. 23) (see Feb. 28, 2001 and Dec. 27-29, 2002). (DURABLE LINK)
December 24-27 — Holidays in strict legal form. Three seasonal rituals — the office party, gift-giving, and New Year’s resolutions — might work better if reduced to legal contract form, suggests humorist Madeleine Begun Kane. From HumorMatters.com comes another lawyered-up “Night Before Christmas” parody: “At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter ‘the Vehicle’) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer.” Plus, from the same site: “Politically Correct Christmas Poem” and the much-circulated “Xmas office party memos“. From IndraNet, the also much-circulated “Twelve Days of Christmas for the Politically Correct“. Chadbourne & Parke attorney Lawrence Savell puts out “The Lawyer’s Holiday Humor Album“, with tunes like “Santa v. Acme Sleigh” and “It’s Gonna Be A Billable Christmas”; all we can tell you about is the titles since we haven’t heard the album. For more Christmas lawyer humor, see Dec. 23, 1999. (DURABLE LINK)
December 24-27 — Federal judge rules high school sports schedules unlawful. More Title IX from Outer Space: a federal judge in Kalamazoo, Mich. has ruled that the Michigan High School Athletic Association has been violating federal and state civil rights law and the Fourteenth Amendment’s equal protection clause by scheduling girls’ but not boys’ athletic seasons out of sync with their collegiate counterparts. (James Prichard, “Federal Judge Rules Against Michigan High School Athletic Group in Gender-Equity Lawsuit”, AP/Law.com, Dec. 18; extensive Grand Rapids Press/MichiganLive coverage). See Dave Reardon, “Spring hoops might not be federal case”, Honolulu Star-Bulletin, Dec. 13, 2000. (& letter to the editor, Feb. 28). More: Jul. 10, 2004. (DURABLE LINK)
December 24-27 — Liability for mistargeted bombing? Sovereign immunity, shmovereign immunity, says a Jones, Day attorney who is suing to make the U.S. government (and hence U.S. taxpayers) compensate the owner of a Sudanese pharmaceutical plant destroyed by an American bombing raid in August 1998 that many subsequent reports have suggested was mistargeted. While nothing would prevent the U.S. Congress from appropriating such compensation as a voluntary matter, Justice Department lawyers are unimpressed with attorney Stephen Brogan’s argument that the plant owner is entitled as a matter of law to compensation under the Constitution’s “takings” clause, saying that clause would not cover non-U.S. property owned by a non-U.S. citizen. Not to mention the wider policy issues: “There is something to be said for the government acting with fearlessness in these circumstances,” as George Washington University law professor Jonathan Siegel says. “The president should not have to worry about tort liability” when making tough military calls. (Otis Bilodeau, “When Bombs Miss the Mark”, Legal Times, Nov. 28). (DURABLE LINK)
December 21-23 — Under the Christmas tree. Toy soldiers? Think again if you’re in the child care business: “A daycare center in North Carolina seeking state certification for its preschool program found itself penalized because an inspector discovered green plastic army men on the premises, reports the Wilmington Morning Star. Laura Johnson said the presence of the nine little army guys at her Kids Gym Schoolhouse led to the loss of five points under the state-sanctioned Early Childhood Environmental Rating System. Evaluator Katie Haselden said schools may not have such displays of stereotyping or violence on the premises. The army men ‘reflect stereotyping and violence, therefore credit cannot be given,’ she wrote in her report.” (Scott Norvell, “Tongue Tied”, FoxNews.com, Nov. 26). At home, however, this may be the year that even good liberal parents break down and buy their son a G.I. Joe, if anecdotes from New York are any indication (John Tierney, “G.I. Stands Tall Again (12 Inches)”, New York Times, Dec. 11; and don’t miss Lisa Snell, “What the Schools Teach Children About Terrorism”, Dynamist.com (Virginia Postrel), Sept. 15 (scroll down if necessary to “Power Rangers vs. Eggshells”)). However, trial lawyers and their friends at the Consumer Product Safety Commission have been running a big campaign against that classic Christmas present of a rural boyhood, the Daisy BB gun(Andrew Ferguson, “When the Nanny State Becomes the Mommy State”, Bloomberg.com, Nov. 6; “You’ll Shoot Your Eye Out!” (editorial), Wall Street Journal, Nov. 30).
December 21-23 — Fleeing obstetrics, again. One of the many prices the state of Mississippi is paying for its reputation as a trial lawyer paradise: physicians are increasingly dropping obstetrics from their practices, faced with insurance rates of $40,000-$100,000 a year that would until recently have been more typical of big cities (“Costs Lead Rural Doctors to Drop Obstetrics”, AP/Washington Post, Nov. 23). Similar problems are arising in West Virginia: Rita Rubin, “You might feel a bit of a pinch, USA Today, Dec. 3. Frederick (Md.) Memorial Hospital is among institutions that have moved to a policy of not allowing families to bring cameras to the delivery room, and some upset moms “accuse hospital officials of trying to protect themselves against malpractice suits at the parents’ expense”. (Raymond McCaffrey, “Moms Say Hospital Photo Ban Makes Birth a Blurry Memory,” Washington Post, Dec. 11; see Oct. 18, 2000). And although trial lawyers keep insisting that medical liability coverage is a high-profit line for insurers, one of the largest providers of malpractice insurance, St. Paul Cos., just announced it was finally giving up and pulling out of the business, which would seem a reasonably sincere testimony to its frustration (“St Paul Cos To Exit Medical Malpractice Business”, Wall Street Journal, Dec. 12)(online subscribers only).
December 21-23 — Australia: anti-American tripped up by speech code. In a case currently on appeal, Australia’s Financial Times was found guilty of inciting racial hatred after one of its opinion columnists wrote that Palestinians as a factor in Mideast politics were “vicious thugs” and “cannot be trusted” (see July 11, 2000). Now, to the shock of some in Australian journalism, prominent broadcaster and journalist Phillip Adams has been made the subject of a private complaint for “racial vilification” of … Americans; he had published in The Australian one of those all-too-familiar screeds declaring that the United States is a country of “madness”, “the most violent nation on earth”, etc., etc. Writes commentator Tim Blair: “I can’t see a massive amount of difference here. Either Adams must be found guilty, or – my favored option – we throw this vilification garbage in the toilet and return to living like free men.” (Tim Blair weblog, scroll to near bottom of the page for Dec. 9; scroll to third Dec. 7 item (via Matt Welch); Pilita Clark, “Shock as columnist investigated for un-American activity”, Sydney Morning Herald, Dec. 7; Phillip Adams, “Look back in anger”, The Australian, Oct. 6) (see also Oct. 17-18, on the Sunera Thobani case in Canada). And the British government, in order to get its antiterrorism legislation past the House of Lords, “was forced to abandon the controversial attempt to make a new criminal offense of inciting religious hatred”. (“UK passes antiterror law”, CNN, Dec. 14)(see Oct. 19-21). They’re sometimes a more useful bunch than G&S gave them credit for being, those Lords.