|Articles by Overlawyered.com editor Walter Olson: |
“The Law on Trial“, Wall Street Journal, October 14, 1997 (review of Beyond all Reason by Daniel Farber and Suzanna Sherry).
“Shut Up, They Explained” (“zero-tolerance” harassment policies), Reason, June 1997.
“Judge Dread” (on Robert Bork, Slouching Toward Gomorrah), Reason, April 1997.
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)
August 31-September 2 — Study: DPT and MMR vaccines not linked to brain injury. Some children experience fever and febrile (fever-related) seizures after being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles, mumps, and rubella (MMR) vaccine and it has long been feared, to quote the New York Times‘s summary of a massive new study, “that those rare fever-related seizures may be linked to later autism and developmental problems. The fears are unfounded, the [new] study concluded.” The study, which appears in the New England Journal of Medicine, was of medical data for 639,000 children and was conducted with the assistance of the Centers for Disease Control and Prevention. “There are significantly elevated risks of febrile seizures after receipt of DTP vaccine or MMR vaccine, but these risks do not appear to be associated with any long-term, adverse consequences,” concludes the abstract.
All of which comes too late to prevent the legal devastation of much of the childhood vaccine industry at the hands of trial lawyers, an episode that climaxed in 1986 when Congress stepped in and established a no-fault childhood vaccine compensation program (see Nov. 13, 2000). According to the Washington Post, one Milwaukee lawyer alone “has won million-dollar judgments or settlements in nearly a dozen DPT cases.” “The jury hated the drug companies so bad when we got through with them that they would have awarded money no matter what,” boasts the lawyer, Victor Harding. (Arthur Allen, “Exposed: Shots in the Dark”, Washington Post Magazine, Aug. 30, 1998). If the new study is correct, however, the vaccines may not have been responsible for the occurrences of permanent developmental disability that so often led to high awards. Worldwide alarm over the vaccines’ feared side effects, stoked in no small part by the litigation, contributed to a decline in immunization rates that resulted in a resurgence of the diseases in several countries, killing many children. (DURABLE LINK)
SOURCES: William E. Barlow, Robert L. Davis et al, “The Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps, and Rubella Vaccine”, New England Journal of Medicine, Aug. 30 (abstract); Philip J. Hilts, “Study Clears Two Vaccines of Any Long-Lasting Harm”, New York Times, Aug. 30 (reg); and dueling headlines: Daniel Q. Haney, “Two Vaccines Linked to Seizures”, AP/Yahoo, Aug. 29, and Gene Emery, “Researchers: Vaccines Carry Little Risk of Seizures”, Reuters/Yahoo, Aug. 29. Adds AP: “In April, an Institute of Medicine committee issued a report saying there is no evidence that MMR causes autism, as some have speculated.” (more)
August 31-September 2 — Radio daze. The nation’s largest radio chain, Clear Channel, is known for hardball lawyering — as when it sued Z104, a rival station in Washington, D.C., for having the temerity to hold a listener contest in which the prize was tickets to an outdoor concert in Los Angeles staged by a Clear Channel subsidiary. Violated their client’s “service mark”, the lawyers said (Frank Ahrens, “Making Radio Waves”, Washington Post, Aug. 22).
August 31-September 2 — “Man Pleads Guilty to Use of Three Stooges’ Firm in Fraud Scheme”. In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and other institutions out of $1 million in a scheme in which he “used the name of the slapstick comedy trio’s fictional law firm Dewey, Cheatham and Howe to obtain cashier’s checks” (more on that illustrious firm: Google search). “It did seem just a bit unusual for a company name,” said a bank officer who alerted the FBI (AP/FoxNews, Aug. 27).
August 29-30 — Washington Post on class action reform. “No portion of the American civil justice system is more of a mess than the world of class actions. None is in more desperate need of policymakers’ attention.” Excellent Post editorial which should help fuel reform efforts (“Actions Without Class” (editorial), Washington Post, Aug. 27).
August 29-30 — Firefighter’s demand: back pay for time facing criminal rap. David Griffith, a Hispanic firefighter in Des Moines, Iowa, “has sued city officials, alleging racial bias in their refusal to give him back pay for a leave of absence after he was arrested.” Griffith went on a six-month unpaid leave after he “was arrested in December 1999 on three counts of third-degree sexual abuse involving a then-22-year-old woman. The charges were dropped in May 2000 after Griffith pleaded guilty of assault with intent to inflict injury and harassment. … In his lawsuit, Griffith said he ‘was treated less favorably than non-Hispanic employees and believed such treatment was based on race’. … City attorney Carol Moser said Des Moines officials never forced Griffith to take a leave of absence but simply granted his request.” (Jeff Eckhoff, “D.M. firefighter sues for back pay after arrest, alleges discrimination”, Des Moines Register, Aug. 24).
August 29-30 — “Trolling for Dollars”. Lawyers are turning aggressive patent enforcement into a billion-dollar business, and companies on the receiving end aren’t happy about it (Brenda Sandburg, “Trolling for Dollars”, The Recorder, July 31).
August 29-30 — Negligent to lack employee spouse-abuse policy? The husband of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her, then killed himself. Now her lawyer is suing the retailer, arguing (among other theories) that it should have had a policy to protect its employees from spousal abuse. (Shannon P. Duffy, “Employee Sues Wal-Mart Because Store Didn’t Protect Her From Husband’s Attack”, The Legal Intelligencer, Aug. 24).
August 29-30 — Updates. Further developments in perhaps-familiar cases:
* Extremist animal-rights group PETA, which not long ago cybersquatted on the domain ringlingbrothers.com where it posted anti-circus material, has prevailed in its legal battle (see July 3, 2000) to wrest the domain peta.org away from a critic which had used it for his contrarian “People Eating Tasty Animals” site (more/yet more). (Declan McCullagh, “Ethical Treatment of PETA Domain”, Wired News, Aug. 25).
* The Big Five Texas tobacco lawyers have enjoyed an almost perfect record of success so far in dodging investigation of their $3.3 billion-fee deal to represent the Lone Star State in the national tobacco litigation, but Texas Attorney General John Cornyn should not be counted out yet (see Sept. 1, 2000, May 22, 2000, June 21, 2001): last month he scored an advance for his long-stymied ethics probe when the Fifth Circuit ruled he should be given a chance to pursue state court proceedings aimed at putting the Five under oath about the lucrative arrangements (Brenda Sapino Jeffreys, “Texas Attorney General May Depose Tobacco Lawyers in State Court”, Texas Lawyer, July 30).
* Conceding that one of its execs did indeed use a disrespectful nickname for its Denver stadium (“the Diaphragm”, referring to its shape), the Invesco financial group agreed to drop its threatened defamation lawsuit (see July 5) against the Denver Post for reporting the remark (“Invesco won’t sue Post”, Denver Post, July 6).
August 27-28 — Clinical trials besieged. Since the Jesse Gelsinger case, where survivors of an 18-year-old who died in a gene-therapy experiment brought a successful lawsuit against the University of Pennsylvania, lawsuits have been burgeoning against universities, private health-research foundations and other sponsors of clinical trials and experimental medical treatments; one recent high-profile case targets the Fred Hutchinson Cancer Research Center in Seattle. The “suits have sent shudders through the biomedical community. … Some experts in the biomedical field believe the litigation will have a chilling effect on research that benefits humankind through scientific advancement. They also worry that volunteers will dry up.” A lawyer who specializes in the new suits makes a practice of suing not only researchers and deep-pocket institutions but also “bioethicists as well as members of institutional review boards, the volunteers charged with reviewing and approving clinical trials.” (on bioethicists, see also Oct. 6, 2000) (Vida Fousbister, “Lawsuits over clinical trials have doctors wary, but not quitting research yet”, American Medical News, April 16; Maureen Milford, “Lawsuits Attack Medical Trials”, National Law Journal, Aug. 21; Kate Fodor, “Insurance Companies Get Stricter on Clinical Trials “, Reuters/CancerPage.com, June 27; Christy Oglesby, “Volunteers sustain clinical trials”, WebMD/CNN, July 23).
August 27-28 — Recommended new weblog. Launched a few weeks ago, Instapundit by U. of Tennessee law prof Glenn Reynolds has already made it onto our must-read list with frequently updated commentary on such topics as gun laws, patients’ bill of rights legislation, abusive prosecution, the tobacco settlement, and stem-cell research. Also new among our “dailies” links (left column of front page) are Joshua Micah Marshall’s and Marshall Wittmann’s weblogs, both oriented toward political matters.
August 27-28 — “Jailed under a bad law”. “The arrest by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date — one that shows the need to revisit the rules Congress created to prevent the theft of intellectual property using electronic media,” contends the Washington Post in an editorial. Sklyarov wrote a program, legal in Russia, that enables users to defeat the copy-protection on Adobe’s eBook Reader system; the DMCA bans such programs even though they have uses unrelated to unlawful copying, and it does not require the government to prove in prosecution that facilitating piracy was part of a defendant’s intent. (Washington Post, Aug. 21; Julie Hilden, “The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov”, FindLaw, Aug. 10; Declan McCullagh, “Hacker Arrest Stirs Protest”, Wired News, July 19; Glenn Reynolds (see also other items in his weblog). More ammunition for anti-DMCA sentiment: Amita Guha, “Fingered by the movie cops”, Salon, Aug. 23.
August 27-28 — Urban legend alert: six “irresponsibility” lawsuits. Much in our inbox recently: a fast-circulating email that lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website? (DURABLE LINK)
NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.
August 27-28 — “Incense link to cancer”. Just when you thought it was safe to go back to the Sixties (BBC, Aug. 2). But not to worry, since it seems everything else in the world has also been linked to the dread disease: Brad Evenson, “Everything causes cancer — so relax”, National Post (Canada), Aug. 4.
August 24-26 — “Delta passenger wins $1.25 mln for landing trauma”. Outwardly uninjured after a terrifying emergency landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana jury that the episode had caused her to suffer post-traumatic stress syndrome and an aggravation of her pre-existing depression. The judge ruled that “her terror during the landing led to physical changes within the brain that could be defined as injury”. (Reuters/Yahoo, Aug. 23; PPrune thread) (more on white-knuckle lotto: Oct. 19, 2000, Oct. 8, 1999).
August 24-26 — “Cessna pilots association does some research…” “Last week’s decision by a Florida jury to ding Cessna to the tune of $480 million for allegedly faulty chair railings in a Cessna 185 has raised more than a few eyebrows,” reports AvWeb. “Cessna’s lawyers blamed the crash on pilot error — as did the NTSB final report — but the plaintiffs’ attorneys argued that the seat-latching mechanism was defective, and the seat slipped back suddenly as the pilot was trying to land. A plaintiff’s attorney was quoted in the Wall Street Journal last week as saying that Cessna ‘knew the seats could slip, but they never told the pilots that.'” On the contrary, says the Cessna pilots association: the company issued a service advisory in 1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered all owners a free secondary seat-stop kit “that would provide positive retention of the seat in the event that the primary system failed. Owners had to pay for about three hours’ labor at a Cessna Service Center to install the free kit.” In 1987, the FAA issued its own Airworthiness Directive “with detailed instructions for inspecting the seat-latching system for wear, pin engagement and cracks”. (AvWeb, undated). More of what general aviation folks have to say about that jury award (much of it highly uncomplimentary): AvWeb reader mail; Pprune threads #1, #2.
August 24-26 — Can I supersize that class action for you? The FBI has charged eight persons in the conspiracy, allegedly dating back to 1995, to steal the winning pieces in McDonald’s promotional Monopoly game. Although the fast-food chain was among the victims of the scheme and has already promised a make-it-up sweepstakes promo, can we doubt that the class action lawyers will soon descend? “And never mind those gloomy folk who say the lawyers will win millions while the rest of us each gets a coupon for a packet of fries.” (“They Knew It” (editorial), Washington Post, Aug. 23); Yahoo Full Coverage).
August 24-26 — The document-shredding facility at Pooh Corner. “A family-owned company that receives royalties from the sale of Pooh merchandise says that Walt Disney Co. has cheated it out of $US 35 million … by failing to report at least $US 3 billion in Pooh-related revenue since 1983. … the case has been entangled in Los Angeles Superior Court for a decade …. Last year a Superior Court judge sanctioned Disney for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems'”. (“Claimants call Pooh a bear of very little gain”, L.A. Times/Sydney Morning Herald, Aug. 17). Update Mar. 30, 2004: court dismisses suit after finding misconduct on plaintiffs’ side. (DURABLE LINK)
August 24-26 — More traffic records at Overlawyered.com. What summer slowdown? Last week set a new record for pages served, and so did last month … thanks for your support!
August 22-23 — Meet the “wrongful-birth” bar. “BIRTH DEFECTS — When did your doctor know? … You may be entitled to monetary damages,” according to an advertisement by the law firm of Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J. The theory behind “wrongful-life” and “wrongful-birth” suits? “If the health team had done its job, the [parents] would have known of the defect — and could have chosen not to have the baby. … Lawyers file the cases if — and only if — the parents are prepared to testify that they would have aborted the pregnancy.” Many disabled persons, joined by others, are not exactly happy about the premise that it might be better for some of the physically imperfect among us never to have been born. Attorneys believe such cases “will become more common as prenatal sonograms, blood tests, and genetic counseling become routine, and the public learns of the potential for large financial awards when genetically defective babies are born.” “Any child born with a birth defect has a potential wrongful birth or wrongful life claim,” says one optimistic lawyer. (Lindy Washburn, “Families of disabled kids seek peace of mind in court”, Bergen Record, Aug. 19; “N.J. has taken lead in allowing parents, children to sue”, Aug. 19). Note the bizarre headline on the first of the two stories: just how likely is it that “peace of mind” will be found by having the parents swear out a permanent public record to the effect that they wish their child had never been born? (more on wrongful birth/life: Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000). (DURABLE LINK)
August 22-23 — Pricing out the human species. According to Idaho governor Dirk Kempthorne, the federal government’s proposal to reintroduce grizzly bears into Idaho “assumed injury or death to people and even calculated the value of human life. A human killed by a grizzly bear in Idaho would cost the federal Treasury between $4 million and $10 million, and the plan even amortized the annual costs at $80,000-$200,000. As far as we know, this is the first time that death or injury to humans has been factored into a program proposed by the federal government under the [Endangered Species Act].” (“Risk to humans too great”, USA Today, Aug. 17). And did reluctance to draw water from a river containing threatened fish contribute to the deaths of four firefighters during a big wildfire in Okanogan County, Wash. last month? (Chris Solomon, “Why Thirty Mile Fire raged without water”, Seattle Times, Aug. 1; “Endangered Fish Policy May Have Cost Firefighters’ Lives”, FoxNews.com, Aug. 2).
MORE: “NWFP [Northwest Forest Plan] standards and guidelines and other agency policies such as PACFISH set streamside buffers with virtually zero risk to fish species, regardless of the effects of large buffers to other management objectives. Managing risks requires value-based decisions. We understand that the zero-risk [to fish — ed.] approach is largely a result of lawsuits….” (James E. Brown of the Oregon Department of Forestry at a House Agriculture Committee oversight hearing, June 21, 1999 — scroll to near end of document). (DURABLE LINK)
August 22-23 — Slavery reparations suits: on your mark, get set… “By year-end, an all-star team of lawyers calling themselves the ‘Reparations Coordinating Committee’ plans to file a suit seeking reparations for slavery. … Multiple cases in multiple forums are likely. The defendants will come from both the public and private sectors”; among businesses likely to be named as defendants is J.P. Morgan Chase. (Paul Braverman, “Slavery Strategy: Inside The Reparations Suit”, American Lawyer, July 6). Harvard Law prof Charles Ogletree said “‘an amazing series of possible actions’ is slated for early next year.” (Emily Newburger, “Breaking the Chain”, Harvard Law Bulletin, Summer). Some of the reasons it’ll be a terrible idea: John McWhorter, “Against reparations”, The New Republic, July 23 (more on reparations: July 6-8, April 17, Dec. 22-25, 2000 and links from there). (DURABLE LINK)
August 22-23 — “New York State’s Gun Suit Must Be Dismissed”. No, bad lawsuits don’t always prosper: “The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed,” Justice Louis B. York has ruled in Manhattan. New York was the only state to have joined 32 municipalities in suits against the gun industry that aim to extract money from gunmakers as well as arm-twist them into adopting various gun controls that legislatures have declined to enact. New York AG Eliot Spitzer is said to be “dismayed” by the decision. Good! (Daniel Wise, New York Law Journal, Aug. 15).