In 1999, Maria Storm had a mole on her right shoulder that was rubbing against her bra strap; Dr. Patrick Zimmerman removed it at her request. The mole did not have an irregular shape or color. Four years later, she was diagnosed with a fatal melanoma on a different part of her body (“Louis Dehner, M.D., a pathologist at Barnes-Jewish Hospital in St. Louis, testified that the mole Zimmermann removed was not the primary spot of the melanoma”), and her family sought to blame her death on Zimmerman, seeking $10.9 million. (Zimmerman biopsies 30% of the moles he sees, and less than 1% of the ones he orders for testing are malignant, suggesting he’s already practicing heavily defensively.) A Madison County jury rejected attorney Rex Carr’s pleas; Carr (Feb. 6; Dec. 6, 2005; Nov. 6, 2005; Dec. 23, 2004; May 4, 2004; POL Dec. 28, 2004) says he’ll appeal. (Steve Horrell, “No award in med-mal case”, Edwardsville Intelligencer, Jan. 31; Leah Thorsen, “Doctor sued over cancer death defends his prognosis of mole”, St. Louis Post-Dispatch, Jan. 30; Steve Gonzalez, “Collinsville physician cleared in Madison County med mal trial”, Madison County Record, Jan. 31).
Posts Tagged ‘Illinois’
January 26 roundup
- DOJ subpoenas of online-gambling firms spark UK outrage (Times Online)
- “Don’ts” for lawyers: don’t supplement your criminal-defense practice by running escort service on the side [NY Law Journal]
- Maternity-clothing retailer tripped up on pregnancy discrimination claim [Lenard]
- Filling out a Quicken-software will for an elderly client deemed “unauthorized practice of law” in South Carolina [McCullagh, Giacalone]
- Champerty ‘n’ maintenance update: New York courts allow suspended lawyer Ross Cellino [Jul. 15, 2005] to resume practice [Business First of Buffalo]
- Worried about long-dormant restitution or repatriation claims that might arise to put a cloud on your art holdings? Buy art-title insurance [Forbes pay archive]
- Snatching whole milk from schoolkids not such a great idea, maybe [Musil]
- Yes, let’s stop slamming lawyers for representing unpopular clients — and let’s start being consistent about it [Ted “no relation” Olson, Katyal via Adler]
- Pfizer sued on theory its frisky Viagra ads encourage spread of sexually transmitted diseases [AP/WaPo](complaint courtesy Slate)
- After his experiment in splitting up his blogs, Steve Bainbridge has reunited them again [ProfessorBainbridge.com]
- Remove Child Before Folding author Bob Dorigo Jones interviewed about wacky warnings (see Jan. 6, Jan. 12, etc.) [Illinois Review].
- Note: one item originally posted here [on air-show crash] removed as duplicative of one of Ted’s earlier.
Update: Fountain Diet Coke class action
We mentioned the lawsuit over the absence of Nutrasweet in fountain versions of Diet Coke in 2004. In a typical “harm-less” class action, plaintiff Carol Oshana did not see any advertising for Nutrasweet in Diet Coke, knew that fountain Diet Coke tasted different than bottled Diet Coke, and continued to buy fountain Diet Coke after she learned it had saccharin, but demanded to be the representative of a class of all Diet Coke purchasers in Illinois on a “consumer fraud” claim. Via Howard Bashman, the Seventh Circuit affirmed federal jurisdiction and the district court’s refusal to certify a class. Oshana did get a $650 nuisance settlement, which would buy 1000 liters of Diet Coke at my local grocer.
December 20 roundup
- The part of the Zyprexa story the New York Times didn’t tell you. [Point of Law; relatedly, Childs]
- 10-2 DC City Council vote: DC businesses who don’t want to hire a “rehabilitated” convicted sex offender to work with children (or DC residents who don’t want to rent a room to one) can now be sued for punitive damages. WaPo doesn’t think this worth mentioning in the newspaper. Thanks, Marion Barry, for making my Arlington condo worth more money! [Open Market blog]
- Of course, not all convicted sex offenders are equal, as the case of a 17-year-old who had consensual oral sex with a 15-year-old shows. That ten-year prison conviction (without parole) would have been a misdemeanor if he had just had intercourse and gotten her pregnant. [Bashman roundup; Volokh; Berman]
- Tradeoffs and scarcity: why medical safety isn’t as easy as it seems. [Point of Law; Kevin MD]
- Jury’s lack of smoking break not reason to undo death penalty. [AP/law.com]
- I know I stocked up on Sudafed when they changed the law. It’s worse for allergy sufferers with kids below 18. [WQAD; Fisher @ WaPo]
- Murnane on the judicial hellholes report. [Illinois Justice]
- Remember when those left-wing groups tell you about how profitable insurance companies are, and thus need more regulation? They somehow forget the most highly regulated category, Florida homeowners’ insurance. Which, not coincidentally, is high-priced, loses money, and increasingly taxpayer subsidized as private industry flees. [Risk Prof]
- “We’re trying to figure out what changes we can make, short of putting up signs saying, ‘Don’t put your baby through the X-ray machine.'” [LA Times]
- Blogger doc: $4M/breast is too high, even in Florida [Docsurg]
- No, a semicolon in your middle name doesn’t grant you magical legal properties. [Above the Law]
- Word limits and law school exams. [Above the Law]
- Milton Friedman and General Pinochet. [Reason]
- “This is the painful part,” he said. “Sometimes you do everything right in neurosurgery and the patient doesn’t do well.” No lawsuits in this story, just interesting medicine. [NYT]
- With only 17 “fascinating”s in 3.5 years, Overlawyered is more selective than Volokh or Prawfsblawg. [Still Angry]
- Overlawyered and Walter get a shout-out in an article about the top ten insurance cases of the year. [Mealey’s]
“Judge orders Illinois to pay up”
Loser-pays is alas the exception in our system, but it does have its moments: after a judge declared unconstitutional a law in the state of Illinois attempting to ban the sale of violent videogames to minors, U.S. District Judge Matthew Kennelly ordered the state to pay $510,250 in legal fees to the game sellers, and it seems Kennelly meant business, since he has announced “the time for waffling has passed” as to the state’s coming up with payment. (John O’Connor, “Judge wants legal-fee payment plan from Blagojevich”, AP/Chicago Tribune, Dec. 11; Mark Whiting, 1up.com, Dec. 12; Slashdot, Dec. 13 and comment thread at Slashdot which mentions us and includes some discussion of loser-pays generally.
Potter v. Ford Motor
Betty Potter, who weighed 230 pounds, was driving her Ford Escort in the rain on bald tires, lost control of her car, and collided backwards into a tree at 30 mph. Her seatback collapsed in the impact, rendering her paraplegic when her head hit the back seat. She was allowed to argue to a jury that the design was “defective” even though her lawyers could not identify an alternative design that would have prevented the harm; Ford was held 70% liable for $10 million in damages. The Tennessee Court of Appeals affirmed the state trial court verdict. Of course, it’s impossible to design seatbacks to handle all conceivable combinations of collision direction and driver sizes; as the plaintiffs’ expert admitted, using a rigid seatback instead of a yielding seatback to withstand this sort of collision makes other types of injuries much more likely, and low-speed collisions where the yielding seatback has benefits are far more likely than high-speed collisions. The jury (and Tennessee court) is essentially punishing Ford for failing to have perfect foresight in matching its cars with the accidents the cars’ drivers will have. (Potter v. Ford Motor Co.; concurring opinion; via Products Liability Prof. Blog).
In other rigid v. yielding seatback lawsuit news, the Illinois Court of Appeals released on the web the Mikolajczyk v. Ford Motor Co. opinion for the case we discussed Dec. 1, 2006 and March 21, 2005. The same issues apply in that case, except there, the accident was caused by a drunk driver plowing into the back of a stopped car at over 60 mph.
Updates
Recent developments on past stories:
* Remember Shannon Peterson, the Denver condo owner who got sued by a neighbor who complained that she was taking baths too early? (Feb. 27). The case is still dragging on the better part of a year later, a judge having refused so far to throw it out. David Giacalone has the details (Nov. 30).
* Glamourpuss lawsuit-chaser Erin Brockovich, fresh from the humiliating dismissal (Nov. 18) of suits she fronted against California hospitals alleging Medicare overbilling, has been rebuffed in another high-profile case. This time a judge has dismissed twelve lawsuits brought by her law firm of Masry & Vititoe alleging that exposure to oil rigs at Beverly Hills High School caused cancer among students there (Martha Groves and Jessica Garrison, “School oil-rig lawsuits dismissed”, Los Angeles Times, Nov. 23) (via Nordberg who got it from Legal Reader). For more on the case, see Jul. 15 and Nov. 19, 2003, and Mar. 16, 2004. The New Republic has marked the occasion by reprinting its revealing 2003 article on the affair by Eric Umansky. P.S. More from Umansky, who has his own blog, here.
* Reader E.B. writes in to say:
Remember the group of parents (Oct. 23) who threatened litigation over their daughters’ playing time on the girl’s basketball team? The ones who demanded a six-person panel to oversee the selection of the players?
None of the parents’ daughters made the team. And they’re not happy about it. See C.W. Nevius, “Castro Valley hoops coach can’t win”, San Francisco Chronicle, Nov. 30.
* A court has dismissed the action (Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, Jun. 28, 2006) by fair housing activists against Craigslist over user ads that expressed improper preferences or mentioned forbidden categories in soliciting tenants, apartment-sharers and so forth. (Anne Broache, “Craigslist wins housing ad dispute”, CNet, Nov. 17). However, blawger David Fish says the court’s reasoning was highly unfavorable to many other Internet companies generally, and may expose them to future liabilities (Nov. 15). Craigslist now has an elaborate page warning users that it is unlawful for them to post preferences, etc. in most situations not involving shared living space. Update: David Fish’s name corrected, apologies for earlier error.
* 3 pm update to the updates from Ted: “An Illinois intermediate appellate court overturned the $27 million verdict in Mikolajczyk v. Ford (which we reported on last year), ordering the lower court to replace the arbitrary jury verdict with a lower arbitrary number. Why the jury’s damage award is considered the product of passion and prejudice, but the same jury’s liability award is kosher, remains unclear. (Steve Patterson, “Court says $27 million crash award too much”, Chicago Sun-Times, Nov. 23).”
November 29 roundup
- Tennie Pierce takes his dog-food settlement to the LA City Council (Nov. 22). I repeat my offer to LA politicians: I’ll eat dog food for a lot less than $2.7 million plus severance pay. [LA Times]
- Bogus $20 million asbestos verdict in NY; Chrysler had previously won 14 consecutive asbestos trials in a row; jury found Chrysler 10% liable, which made it responsible for 80% of the damages under New York law. Studies show no relationship between automotive products and asbestos illnesses. [Point of Law; Bloomberg; AP]
- “Madison County Gets $17.6 Million Windfall Despite Philip Morris’ Escape From $10 Billion Judgment.” Earlier: Jun. 20 and links therein. [Alton Telegraph via Products Liability Prof Blog]
- How tenant-friendly courts hurt tenants. [Point of Law]
- Murnane on Justice Bob Thomas libel verdict. [Illinois Justice Blog]
- One year ago on Overlawyered: $60.9 million cerebral palsy verdict. Arbitrary bench verdict arbitrarily reduced to $40.5 million; case on appeal to Eleventh Circuit. [West’s Medical Malpractice Law Report]
- One year ago on Point of Law: Ray Harron, asbestos doctor and Connecticut decision against freedom of contract.
- The unpersuasive case for judicial activism. [Whelan @ Weekly Standard]
- Federalist Society Convention podcasts beginning to be posted. [Federalist Society]
- Are African-Americans “lagging” at major law firms, and if so, why? [Point of Law; New York Times; Lat; Sander]
- Nice PETA expose video. [Penn & Teller @ Google Video]
Tarheel heartbalm, cont’d
Newsweek looks at North Carolina’s cottage industry of tort actions by wronged spouses against the cads, hussies and assorted homebreakers who put an end to their domestic felicity (see May 22, 2005, Nov. 16, 2004, and May 18-21, 2000). “Although alienation of affection is rarely invoked in most states, a series of high-profile judgments in North Carolina, including one in 2001 for $2 million, have inspired more than 200 suits annually in recent years. Lawyers say people typically file these claims as leverage in divorce and custody disputes. ‘A wife says I’m going to sue your girlfriend if you don’t give me $50,000 more in property settlement. That’s an improper use of the [law], and it shouldn’t take place,’ says A. Doyle Early Jr., former chair of the North Carolina Bar Association’s family law section. … Conservative [i.e., Religious Right] groups like the North Carolina Family Policy Council say the law should stay on the books”. (Julie Scelfo, “Heartbreak’s revenge”, Dec. 4).
When a judge sues for defamation, cont’d
Reacting to the recent case in which a jury awarded Illinois chief justice Robert Thomas $7 million against a suburban newspaper, the Kane County Chronicle (Jun. 22, Jul. 19, Nov. 3, Nov. 7, Nov. 14, Nov. 19). the New York Times recalls a 1983 case in which “a Supreme Court justice in Pennsylvania sued The Philadelphia Inquirer for defamation. The case was finally dismissed this summer — a full 23 years after it began. … [Reporter Daniel R.] Biddle, who is now an editor at The Inquirer, said he had learned through lawyers that some of the biggest law firms in Philadelphia declined to represent the paper, in part ‘because they were afraid’ that fighting a Supreme Court justice might jeopardize their other clients.” (Katharine Q. Seelye, “Clash of a Judge and a Small Paper Underlines the Tangled History of Defamation”, New York Times, Nov. 20). More: Mar. 16, 2004. The Times piece also discusses a lawsuit’s silencing of the Alton Telegraph, which once was an outspoken voice in Madison County, Illinois; Ted covered that episode on Point of Law Dec. 28, 2004.