A few weeks ago (see Oct. 27, Oct. 29) a jury decided to hold the Port Authority of New York and New Jersey 68 percent to blame for the first World Trade Center bombing, and the terrorists themselves only 32 percent responsible. Now the authority has filed court papers declaring that the verdict “shocks the conscience” and urging that it be set aside. According to the motion, the outcome in the case “stemmed directly from the court’s jury instructions and verdict sheet interrogatories that violated the Port Authority’s fundamental right to a fair trial.” The authority also faults Judge Nicholas Figueroa for “banning testimony from terrorism experts called by the authority,” and for asserting that he would be justified in overturning a defense verdict should the jury return one. (Anemona Hartocollis, “Port Authority Seeks Voiding of Jury Verdict”, New York Times, Dec. 7). Andy MacCarthy has a comment at National Review Online.
Are you reading Point of Law regularly? If not, you’re missing
- extensive analysis of the Alito nomination;
- the meaning of the New Jersey Vioxx verdict;
- the plaintiffs’ lawyer who asked for $60 million because he had successfully forum-shopped for a court with judges he helped elect;
- Eliot Spitzer bullying competitors of the Postal Service;
- multiple refutations of the plaintiffs’ bar’s attempt to lie about medical malpractice insurance;
- ongoing coverage of the silicosis litigation scandal;
- an extensive discussion of what it means to be an ethical litigator; and much, much more.
Continuing a trend toward the protection of “gripe sites” as free speech, a Manhattan judge has ruled that a New Jersey man’s website assailing an auto warranty company did not constitute actionable defamation. Penn Warranty Corp. sued Ronald DiGiovanni over eight allegedly libelous statements posted on his site, including assertions that it is a “blatantly dishonest company” that has been “running scams,” “committing fraud on a grand scale,” and “ripping off its contract holders for quite a while.” The judge granted DiGiovanni’s request for a summary judgment dismissing the action, however, ruling that “the web site, when viewed in its full context, reveals that defendant is a disgruntled consumer and that his statements reflect his personal opinion based upon his personal dealings with plaintiff. They are subjective expressions of consumer dissatisfaction [and] are not actionable because they are defendant’s personal opinion.” (Mark Fass, “Court Finds ‘Gripe Site’ Is Protected Free Speech, Not Defamation”, New York Law Journal, Nov. 1).
New Jersey: “A $50 million lawsuit is being filed against Hoboken and its police department by the parents of a 16-year-old boy who drowned in the Hudson River shortly after escaping from Hoboken Police Headquarters.” On Oct. 5, 2004 Vincent “Woody” McConnell Jr. was arrested on an outstanding warrant and on being taken in asked if he could use the public rest room at the station house. According to police, he then unscrewed the security grate on the small window in the rest room and escaped; with cops in pursuit, he climbed a railing, “escaped from an officer holding his arm and jumped into the water,” which has dangerous currents at that point in the river. Friends of McConnell say they don’t believe he would have jumped. He’s being represented by attorney Robert Bianchi. (Michelangelo Conte, “Suit Blames Cops”, Jersey Journal, Oct. 12).
No need for a public accounting dept.:
In a rare case of thievery at a large New Jersey firm, tobacco litigation pioneer Alan Darnell admitted that he misappropriated money from his partners and clients at Woodbridge’s Wilentz, Goldman & Spitzer and has volunteered for disbarment.
The reporter’s description of thievery in Garden State legal circles as “rare”, in case you were wondering, turns out to mean it’s not often the lawyers are caught misappropriating their own partners’ or clients’ funds in prohibited ways.
By bowing out of the profession before the investigation was complete, Darnell saved himself and 140-lawyer Wilentz Goldman from a public airing of the details of what money he took, whom he took it from and what he did with it.
Oh, well then that’s okay. Mustn’t risk giving the general public a peek at such matters, after all.
Darnell, who was known for filing asbestos and pharmaceutical claims, “was a leading member of the Wilentz Goldman team that represented plaintiffs in mass tort and product liability cases. …Big tobacco was his biggest target.” Wilentz, Goldman & Spitzer is perhaps the state’s best-known plaintiff’s firm (one of its ads) and is also renowned for its political connections, which have brought it much lucrative state business.
The state’s Office of Attorney Ethics will also be sealing the records of its investigation of Darnell, and it doesn’t appear that there are further legal proceedings against him in the offing. Remember this story next time lawyers denounce the alleged conspiracy of silence regarding doctors’ misconduct (Henry Gottlieb, New Jersey Law Journal, Oct. 6).
A classic application of the assumption-of-risk doctrine was the rule that ballpark owners were not liable when a foul ball hit into the stands injured a fan. But assumption of risk has been less than popular in the law schools for a long time, and is under constant pressure from the plaintiff’s bar, which would like to curtail or eliminate it. Now, per Law.com, the New Jersey Supreme Court has rolled back the foul-ball rule as regards parts of a stadium devoted to concessions, mezzanines and so forth, though apparently not (yet) seating areas. One likely result: more installation of netting and other screening, even if it impairs fans’ viewing experience. (cross-posted from Point of Law)
Eugene Volokh (Aug. 29) finds particularly egregious — and at odds with the First Amendment — the practice of courts in various states of “discrimination in favor of religious parents and against irreligious ones, or in favor of more religious parents and against less religious ones, in child custody cases, on the theory that it’s in the child’s ‘best interests’ (that’s the relevant legal test) to be raised with a religious education.” For more on civil disabilities of freethinkers, see Jan. 21-23, 2000.
P.S. Reader John Steele Gordon writes to say, “It seems to me that the ACLU could much more profitably direct its jihad against religion at these cases, which do a great deal of harm to real people, than at carvings of the Ten Commandments on public property, which do not.” And here’s quite a bit more from Eugene.
Yet more: Reader Carl Fink, in response to John Gordon’s comment above, defends the ACLU:
The ACLU is just as likely to assist a religious person whose right to practice has been denied, as a nonreligious person whose tax money is being spent to promote a religion. To name one recent case, in State of New Jersey v. Lloyd Fuller, an ACLU attorney submitted a friend-of-the-court brief arguing for the rights of potential jurors to wear traditional Muslim (or by extension other religious) dress without being excluded from juries (see link).
What we object to is government enforcement of any religious policy, including religious EXCLUSION.
Management-side lawyers are predicting a further drying up of reference-giving in response to a New Jersey appellate court’s ruling “appl[ying] the tort of negligent misrepresentation to a situation where an employer allegedly gave false information in an employment reference.” Marsha Singer said she was fired after a manager called her previous employer and was given an incorrect job title for the post she had held there; a court dismissed her claims for defamation and wrongful interference but allowed the negligent misrepresentation claim to go forward. Richard J. Reibstein of the New York office of Philadelphia’s Wolf, Block, Schorr and Solis-Cohen called the ruling a “dramatic shift in the law of post-employment references everywhere” and said it would influence employers outside the Garden State. (Dee McAree, “Ruling Could Lead to Restrictions on References”, National Law Journal, Aug. 5). For more on the chill on reference-giving, see Aug. 7, 2003; as it happens, New Jersey is a state that figured prominently in the widely noted case of alleged killer nurse Charles Cullen (Dec. 18, 2003; Jan. 29, Mar. 3 and Mar. 30, 2004), in which litigation-shy hospitals did not give each other frank warnings of their doubts about Cullen.
It’s a distraction, the same as using a cell phone while driving, claim state reps John McKeon (D-Essex) and Loretta Weinberg (D-Bergen), who are co-sponsoring a bill that would impose $250 fines on those caught with lighted cigarettes behind the wheels of their own cars. The bill is given scant chance of passage — this year, at least (“No butts behind wheel? N.J. moves on smokers”, AP/MSNBC, Jul. 25; “Jersey going too far with anti-smoking bill” (editorial), Camden Courier-Post, Jul. 27; Reason “Hit and Run”, Jul. 25; Outside the Beltway, Jul. 25). Blog reaction has been overwhelmingly negative. Mark at Curious Character (Jul. 27) believes “it’s bad policy to pass laws that you can’t (and won’t) be able to enforce”. Functional Ambivalent (Jul. 26) points out that a study of drivers’ distraction-related accidents shows drivers’ fumbling with climate controls and stereo systems causes many more accidents than fumbling with cigarettes, but no one is proposing to ban music in cars (yet). Jeff Goldstein (Jul. 25) sees a Kelo angle, while KipEsquire (Jul. 25) points out that smokers allowed to indulge in their habit make calmer drivers than those suffering from prolonged nicotine deprivation. For more on the ever-widening reach of smoking bans, see our tobacco page, including Jul. 12, 2005 and Jul. 29, 2004 (smoking in apartments and condos), Jun. 24, 2004 (on the beach), and May 29, 2004 (in cars when children are present).
As New Jersey Law Blog summarizes the case (May 19): “Cynthia Idleman claims that after her husband [Douglas] lost his job and suffered a disabling medical condition his parents have supported their family for the last two years by giving them about $20,000 per month. She claims that by having done so, ‘they have stepped into the shoes of their son’ and, thereby, assumed a continuing obligation to support not only their grandchildren, but also her.” See “Divorce Case Focused On In-Law Support”, WINS, May 17; Lisa Brennan, “Lawyers Wince at Grandparental Alimony Claim”, New Jersey Law Journal, May 26. Among those commenting: Enlighten-NJ, Michael Capanzzi, and the Michigan Medical Malpractice blogger.