• Joe Nocera’s recent column on the Vioxx settlement infuriated loyalists of the plaintiff’s bar, and they won’t like his new one on lead paint litigation much better [NY Times]
• Trial of Overlawyered favorite Jack Thompson over ethical charges leveled by Florida bar wraps up, but judge won’t rule right away [GamePolitics earlier, more recent posts]
• Two joggers hit by driver alongside Pacific Coast Highway will share $49 million from city of Dana Point — allegedly the bike lane was too wide — so now here come the concrete barriers [LA Times]
• Do makers of anti-PC documentary “Indoctrinate U.” owe cash to Indiana U. for infringing on its logo? [Maloney, OpinionJournal, Coleman] Update Dec. 11: settled.
• Casselberry, Fla. cop who sued parents after boy’s near-drowning in pool has now lost her job following public outcry over the incident [Orlando Sentinel; earlier]
• Lawyer who says he was defamed by commenters on DontDateHimGirl.com is back in court [Pittsburgh Post-Gazette, Ambrogi, On Point; earlier here, here, etc.]
• Outspoken blog of BU prof Dr. Michael Siegel ticks off “tobacco control” activists [Beam, Globe]
• Warning label alert: old Sesame Street episodes unsafe for children? [Stier, Wash. Times]
• Furor mounts in and out of Canada over “human rights” complaint against Maclean’s over Mark Steyn book excerpt [Wente, Globe and Mail; Eteraz, UK Guardian; Steyn, NRO; Kimball]
• Judge rejects lawsuit by animal rights group challenging UCSF animal testing [SF Chronicle]
• New at Point of Law: How do all those big cases wind up in Judge Jack Weinstein’s court, anyway?; latest Richard Epstein podcast is on antitrust, Microsoft, AT&T, etc.; abuse of the Family and Medical Leave Act; welcome new contributor Marie Gryphon; Yale Law clinic sues Yale-New Haven Hospital; bar official dismisses concerns about cy pres slush funds; breastfeeding accommodation on the job, via lawsuit?; just what New York needs, a new state law school at Binghamton; and much more.

December 10 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.

Bloomberg gun lawsuits will go on is a post from Overlawyered - Chronicling the high cost of our legal system

First Lawful Commerce in Arms Act challenge is a post from Overlawyered - Chronicling the high cost of our legal system

Vietnamese Agent Orange case dismissed is a post from Overlawyered - Chronicling the high cost of our legal system

And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either — the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.

Update: N.Y. high court derails Blue Cross anti-tobacco suit is a post from Overlawyered - Chronicling the high cost of our legal system

Update: Clayton Cramer comments.

Applicable language from the Appellate Division of New York:

However, even if such a legal duty were held to exist so as to hold these defendants accountable in the context of a common-law public nuisance claim, and, further, assuming plaintiff has sufficiently pleaded that element ? i.e., that by their manufacturing and marketing decisions and practices defendants created and maintain a common-law public nuisance in violation of a duty to the public at large ? plaintiff still falls short.

We so hold because (1) the harm plaintiff alleges is far too remote from defendants’ otherwise lawful commercial activity to fairly hold defendants accountable for common-law public nuisance; and (2) defendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm [FN3].

Footnote 3:The Courts of Appeals in at least eight circuits have dismissed lawsuits by union health benefit funds against tobacco companies to recover the costs of smoking-related illnesses on the ground that the harm to the fund participants is too remote from the companies’ wrongdoing to permit recovery under federal statutory and state common-law claims. Illustrative of the rationale behind these dismissals is the “tortured path” that must be followed from the tobacco companies’ wrongdoing to the union health benefit funds’ increased expenditures, which further demonstrates that plaintiff’s claims are exactly the type of indirect claims that proximate cause requirements are intended to weed out (Steamfitters, Local Union No 420 Welfare Fund v Philip Morris Inc., 171 F3d 912 [3d Cir 1999], cert denied 528 US 1105 [2000]; see also Service Employees International Union Health and Welfare Fund v Philip Morris, Inc., 249 F3d 1068 [DC Cir], cert denied 534 US 994 [2001]; Lyons v Philip Morris, Inc., 225 F3d 909 [8th Cir 2000]; United Food and Commercial Workers Unions, Employers Health and Welfare Fund v Philip Morris, Inc., 223 F3d 1271 [11th Cir 2000]; Texas Carpenters Health Benefit Fund v Philip Morris, Inc., 199 F3d 788 [5th Cir 2000]; Intl Bhd. Of Teamsters, Local 734 Health and Welfare Trust Fund v Philip Morris, Inc., 196 F3d 818 [7th Cir 1999]; Laborers Local 17 Health and Benefits Fund v Philip Morris, Inc., 191 F3d 229 [2d Cir 1999], cert denied 528 US 1080 [2000]; Oregon Laborers-Employers Health & Welfare Trust Fund v Philip Morris Inc., 185 F3d 957 [9th Cir 1999], cert denied 528 US 1075 [2000]).

Update: Nov. 9, 2005.

Judge Weinstein shepherds gun lawsuit is a post from Overlawyered - Chronicling the high cost of our legal system

Judge Weinstein’s ruling follows by a month a Manhattan appellate court’s decision affirming the dismissal of state Attorney General Eliot Spitzer’s lawsuit against gun manufacturers, also brought on public nuisance grounds.

Another New York gun lawsuit dismissed is a post from Overlawyered - Chronicling the high cost of our legal system

[P]laintiff would have us summarily ignore: […]

2) the importance and fairness of considering such concepts as remoteness, duty, proximate cause and the significance of the indisputable intervention of unlawful and frequently violent acts of criminals — over whom defendants have absolutely no control — who actually, directly, and most often intentionally, cause the cited harm;

3) the significance and unfairness of holding defendants accountable even though their commercial activity is wholly lawful and currently heavily regulated, and that their products are non-defective; and

4) the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.

An identical federal suit filed by the NAACP is pending before Judge Jack Weinstein in Brooklyn. (Samuel Maull, “Appeals court affirms dismissal of state’s lawsuit against gun makers,” AP, June 24).

Weinstein is perhaps best known for his work on the Agent Orange class action settlement, which the U.S. Supreme Court recently allowed to be reopened when it split 4-4 in its review of a Second Circuit opinion holding that the settlement did not preclude veterans from seeking additional damages. There are obvious implications, since now class action defendants risk losing the benefits of finality in the Second Circuit. (Tony Mauro, “Vets Win Chance At Agent Orange Damages,” Legal Times, June 10).
(Full disclosure: My firm filed an amicus brief on behalf of the Product Liability Advisory Council in Dow Chemical v. Stephenson.)

New York gun suits is a post from Overlawyered - Chronicling the high cost of our legal system