Mark Gottlieb, executive director of the Boston-based Public Health Advocacy Institute, said a handful of groups are looking at the potential for a broad product liability lawsuit over the addictive nature of the machines. …

“There are some similarities [with tobacco],” Gottlieb says. “We are talking about a product that is engineered to make people do something that is basically destructive and causes an economic injury.”

Portland attorney Greg Kafoury says he is part of “a team of national lawyers” looking at a potential class-action suit. He wouldn’t go into detail but called it “a major, long-term project.”

There is nothing new, however, about lawyers’ yearning to crack open this particular well-guarded vault. See our reports from May and September 2002, for example. Hope springs eternal?

Video slots as next-tobacco? is a post from Overlawyered - Chronicling the high cost of our legal system

Missouri hospitals’ tobacco-recoupment suit is a post from Overlawyered - Chronicling the high cost of our legal system

The U.S. Chamber-backed stable of publications that includes Legal NewsLine has been digging into these topics. At the SE Texas Record, Steve Korris relates details of Scruggs’s lengthy and bitter dispute over asbestos fees with attorneys William Roberts Wilson Jr. and Alwyn Luckey, in which Scruggs was represented by John Griffin Jones. Jones’s associate Steve Funderburg in March of this year confronted Scruggs in dramatic fashion in an email over his sense of having been done out of Katrina fees:

“I have looked in the mirror all weekend and tried to figure out how I could be so stupid,” he wrote. “John and I DEFENDED you in fee dispute litigation for God’s sake.”

He wrote, “We DEFENDED you when people said you were greedy, or were a back stabber, or a liar, or anything else.”

He wrote, “You have developed a good routine. It worked. But go to your grave knowing that you have shaken my belief in everything I hold dear.”

He wrote, “I did not believe that people like you really existed. I am ashamed and will always be ashamed of having defended you and protected you.”

See also Y’All Politics for discussion.

In a separate piece, Korris gives a brief sampling (anything but exhaustive) of the other ethical controversies that have followed Scruggs around over his career. They include Scruggs’s repeated involvement in the obtaining and dissemination of internal documents from adversaries in breach of confidentiality requirements; his firing of attorney Juliet Jowett, who claimed fee-denial and sex discrimination and was eventually awarded $420,000; his dispute with Northeastern lawprof Richard Daynard over Daynard’s claim to a contingency share of the tobacco loot (settled by Scruggs after the First Circuit ruled Daynard’s suit could go forward); Judge Acker’s criminal contempt referral in the Katrina litigation, and a rebuke by Judge Senter on a Katrina procedural issue; and a judge’s ruling that corporate shell games were engaged in to permit Scruggs to obtain Mississippi venue for a patent case. Several of these episodes are familiar to readers of this site, especially that of Prof. Daynard, who’s been a favorite of ours over the years (start here).

The relationship that really vaulted Scruggs onto the stage as a leading national player, of course, was that with his old law school chum and Mississippi Attorney General Mike Moore (discussed here by Korris and here by David Rossmiller). I’ve been writing about this relationship for so long — at this site and in my 2003 book The Rule of Lawyers, where it served as the book’s virtual centerpiece — that it’s easy for me to forget that any number of readers are arriving here for the first time who know little or nothing of this history. I’ll try to do a separate post at a later date recounting its high points, and the related Scruggs co-optation during the tobacco affair of much of the Mississippi (and not just Mississippi) political class.

In the meantime, however, Rossmiller picks out a relevant quote from Michael Orey’s book Assuming the Risk: The Mavericks, the Lawyers and the Whistle-Blowers Who Beat Big Tobacco. Orey is far more sympathetic than I to the tobacco suits, but perhaps for that very reason was able to get an insider’s view of some of the litigators’ thinking, resulting in the following not undamning passage from pages 266-67:

Even though Johnson’s stealthy maneuvering proved unnecessary, it indicates the lengths to which Scruggs was willing to go to pave the way for success. And throughout late 1993 and early 1994, he took other steps to defuse possible opposition to the Medicaid suit in political circles, holding discussions with various movers and shakers around the state to ensure they would not make any trouble. Sometimes it took more than a discussion. “There were [some] people who had political connections, that I’m not even at liberty to tell you who they are, that had to be touched, that had to be talked to, that had to be given a stake in [the litigation],” Scruggs says. He retained two or three of these mystery consultants to run political interference. “These guys have lots of friends and connections with the legislature,” he explains. “These are people who are lobbyists, but they’re not really registered lobbyists. It’s really sort of the dark side of the force.” Over the course of the litigation, Scruggs says, he paid these individuals well over $500,000.

As mentioned the other day, Moore recently turned up assisting the Katrina Litigation Group (formerly Scruggs Katrina Group), and Y’All Politics and Folo are both buzzing about a deposition (PDF) David Rossmiller has publicized which, among other things, raises questions about whether Moore was playing a dual role in Katrina matters and how he was being compensated.

Scruggs indictment VII is a post from Overlawyered - Chronicling the high cost of our legal system

One detail yet to be decided is whether the group will seek financial damages. Under Massachusetts’s consumer protection law, successful plaintiffs are entitled to $25 per violation, which could mean $25 for every time a student has purchased a soda in a public high school in Massachusetts over the past four years.

Mr. Gardner said he and the other lawyers realize that damages could run into the billions. “We haven’t decided about this yet,” he said. “We don’t want this to come off looking like a greedy-lawyer lawsuit.”

(Melanie Warner, New York Times, Dec. 7). Comments: Volokh.

“Lines Are Drawn for Big Suit Over Sodas” is a post from Overlawyered - Chronicling the high cost of our legal system

For more on the search for ways to blame business for our collective struggle with the waistline, see many entries in our Eat, Drink and Be Merry section. More on caffeine “addiction” theories: Aug. 18-20, 2000, Jun. 1, 2004. More on vending machine suits: Jul. 3, 2003. And as regular readers know, we’ve been covering Prof. Daynard’s activities for a long time; see Apr. 21-23, 2000 and many others.

Lawyers preparing soft-drink suit is a post from Overlawyered - Chronicling the high cost of our legal system

Update: U.K. court rejects smoker’s lawsuit is a post from Overlawyered - Chronicling the high cost of our legal system

Schaeffer goes on to suggest that the several states that have enacted laws protecting the fast-food industry have wasted their time. But of course the states that bar obesity lawsuits aren’t seeing obesity lawsuits. The plaintiffs’ bar bragged about how they used the media to change the playing field for tobacco litigation, and the fast-food industry stepped forward to prevent an instant replay, and won the public debate–thus discouraging many lawyers from spearheading these actions so far ahead of public opinion, especially when state law prevented recovery. But Richard Daynard, speaking at an AEI conference on the subject last month, certainly didn’t sound like he was going to give up: “I think these cases in the long term may have viability.” And John Banzhaf complained just yesterday that a 93% downward revision by the CDC of the estimated effects of obesity was a corporate conspiracy that wouldn’t affect lawyers’ plans for future lifestyle litigation. (Joyce Howard Price, “CDC says obesity deaths overestimated”, Washington Times, Apr. 20). It’s to the credit of the plaintiffs’ bar that many recognize that the lifestyle litigators may have bitten off more than they can chew; one suspects that the true concern is that such litigation could create a backlash against the compensation culture that funds Trial Lawyers Inc.

There’s a strange disconnect in Schaeffer’s argument. He suggests that reformers are deliberately exaggerating the risk of lifestyle litigation to get legislation passed — but what would be the motivation for achieving that goal if the risk is exaggerated? If the plaintiffs’ bar is really opposed to lifestyle litigation, as Schaeffer suggests, why not score some cheap political points by supporting the legislation instead of fighting it so hard? A cynic might suggest that they’re trying to keep the door open for copycat litigation in case the pioneers find a jurisdiction that will let the claims proceed. As it is, the Pelman decision (Jan. 27) will likely cost McDonald’s shareholders millions of dollars in litigation costs.

“U.S. Lawyers Have Little Stomach for Obesity Cases” is a post from Overlawyered - Chronicling the high cost of our legal system

AEI: Who Is to Blame for Obesity? is a post from Overlawyered - Chronicling the high cost of our legal system

Next week I’ve giving talks on Tuesday (Nov. 16) at two law schools in New York City, in both case sponsored by Federalist Society chapters. I’ll speak at Fordham in Manhattan at 12:30 and then at Brooklyn Law School at 4 p.m.

Upcoming D.C. and NYC appearances is a post from Overlawyered - Chronicling the high cost of our legal system

One activist quoted in the new coverage is Ben Kelley, who in cooperation with Prof. Richard Daynard has taken a prominent role in organizing conferences advising lawyers on how to sue the food industry (see Elizabeth Lee, Andrew Mollison, “Food fans weigh in”, Atlanta Journal-Constitution, Mar. 10). It turns out that this is none other than the same Ben Kelley we covered ten years ago when we examined how litigation consultants working with trial lawyers have successfully promoted bogus media coverage of alleged auto hazards, including NBC’s famous use of hidden incendiary devices to portray GM trucks as prone to explode (Walter Olson, “It Didn’t Start With Dateline NBC”, National Review, Jun. 21, 1993.) The pro-foodmaker Center for Consumer Freedom has more on Kelley’s recent activities: see Dan Mindus, “McLawsuit Lies”, National Review, Oct. 29; “Trial Lawyers Up Demands On Food Companies”, Oct. 30; “Update: Obesity War Loses Discredited General”, Nov. 4.

MedPundit Sydney Smith thinks (Mar. 10) that the much-headlined new study purporting to find that obesity claims more lives than smoking “is, all things considered, a very weak study. Certainly too weak to be the foundation of sweeping public policy.” For more of our coverage of obesity litigation, see Aug. 11, Jun. 20, Sept. 4, Aug. 6, Jul. 21, Jul. 3, Jul. 3 again, Jul. 1, Jun. 24, and a great deal more here. More: Radley Balko dissents from the bill on federalist grounds (Mar. 11)(& letter to the editor, Mar. 18).

Cheeseburger bill passes House is a post from Overlawyered - Chronicling the high cost of our legal system