- Eminent domain on the silver screen: “Wild River” (1960) starring Montgomery Clift and Lee Remick tells story of TVA’s taking of the last parcel for a dam [Gideon Kanner]
- Berkshire Hathaway: up to now, climate change has not produced more frequent insured weather-related events [Tyler Cowen]
- Erin Brockovich goes on the Dr. Oz show to spread doubts about fluoride in drinking water [Hank Campbell, ACSH; more Brockovich follies]
- California declares relatively unprocessed “aloe vera whole leaf extract” to be a dangerous chemical, which means it can be added to the Prop 65 list; note however that the refined aloe vera used in consumer products is not so included [Conkle Law]
- Some environmentalists plan to sue fund managers who don’t act against global warming [The Guardian, Nature]
- A tale of Superfund joint and several liability: “How tort reform helped crack down on polluters” [Ross Marchand, R Street Institute]
- “Great Moments in US Energy Policy: In the 1970’s, The US Government Mandated Coal Use For New Power Plants” [Coyote]
Reader Dave Westheimer writes, regarding a news item that we briefly noted earlier:
Of course she’s not hearing “Fridley’s concerns” — she’s hearing the concerns of novices who’ve never heard of the Texas Sharpshooter Fallacy.
FWIW, “one of the worst Superfund sites in the country” refers to the old FMC plant in the southwest corner of the city by the Mississippi, well away from the closest residential neighborhood and more likely to affect Minneapolis than Fridley, if it affected anything at all. Fridley’s biggest industry is Medtronic’s headquarters. It’s a typical postwar residential suburb, mostly built in the 50s and 60s.
The neighborhood newspaper ran what I thought was a fawning article about her appearance here, written by an intern, along with a separate article about how the intern who wrote the article was so excited to meet her. So much for objectivity.
As the city’s water report (PDF) says, Fridley has never been in violation of the cancer causing agents standards in the Federal Safe Drinking Water Act.
Now if you’ll excuse me, I’m going to pour myself another tall glass of city water.
I’ve got a post up at Cato at Liberty expressing some doubts about the President’s new talk of smarter regulation. Stuart Shapiro points out that the “only truly new thing in” the regulatory reform package, the greater publicity that will be given to enforcement records, “could be somewhat revolutionary in its ability to force regulatory compliance.” From a perspective diametrically opposed to mine, Rena Steinzor confirms that the only example Obama gave of actual excessive regulation reversed on his watch — the former classification of saccharin as hazardous waste — is of at most trivial significance (& welcome Matthew Continetti/Weekly Standard, Frum Forum, Aaron @ Patterico, Point of Law, AllahPundit, ShopFloor readers).
Around New England, thousands of owners of gas stations and auto repair shops are being billed tens of thousands of dollars apiece for a $65 million Superfund cleanup. Their offense? They were the ones “who made the effort to properly dispose of waste oil and antifreeze by sending it to the sprawling Beede Waste Oil Co. in Plaistow, N.H. Now they are being punished for their conscientious ways.” [Boston Globe]
Wildlife management, species protection, 2003: “U.K. roundup” (licensing of exotic pet fish), Jun. 12-15. 2001: “False trail of missing lynx“, Dec. 18; “Pricing out the human species“, Aug. 22-23; “Stories that got away“, Jul. 23; “Bush’s environmental centrism“, Apr. 24. 2000: “Endangered list“, Dec. 4; “Snakes’ rights not always paramount” (man killed snake in self-defense), Aug. 18-20; “‘Imperfect laws add to danger of perfect storms’“, Aug. 10. 1999: “Property owners obliged to host rattlesnakes“, Oct. 12; “Knock him over with a feather” (migratory bird contraband laws), Sept. 11; “Mow’ better ADA claims” (claim of “exotic prairie plants” by resident who didn’t want to mow her lawn), Jul. 26.
“Bounty-hunting in New Jersey“, Jun. 10-11, 2003.
“‘State is suing ex-dry cleaners’” (Calif., Superfund), May 27, 2003.
“Suing ’til the cows come home“, May 20, 2003.
“U.K. roundup” (global warming suits), Jun. 12-15, 2003; “Tort suits over global warming“, Feb. 6-9, 2003; “Global warming suit?“, Jul. 31, 2001 (& Aug. 10-12); “Plus extra damages for having argued with us“, Aug. 19, 1999.
“California’s hazardous holiday” (fireplaces), Dec. 27-29, 2002; “Chestnuts-roasting menace averted“, Dec. 24-27, 2001; “Put out that match” (agricultural burning, residential wood burning), Feb. 28-Mar. 1, 2001.
“Right to know” laws, 2002: “California’s hazardous holiday” (acrylamide), Dec. 27-29; “‘Lawyers who sue to settle’“, Nov. 4-5; “Chocolate, gas-pump fumes, playground sand and so much more“, Oct. 15; “‘Greedy or Just Green’“, Mar. 13-14. 2001: “There’ll always be a California” (chocolate and Prop 65), Dec. 4; Letter to the editor (lutefisk exempted from toxic-substance status in Wisconsin), Nov. 29; “Be somewhat less afraid” (nuclear plant terrorism), Nov. 30-Dec. 2; “‘U.S. Debates Info on Chemical Hazards’” (“right to know” and terrorism), Nov. 12; “Chemical-plant vulnerabilities: read all about them“, Oct. 1. 1999: “Lockyer vs. keys” (California attorney general declares brass a toxic hazard), Nov. 2.
“How much did you say that Indian legend was worth?“, Sept. 25-26, 2002; “Final innings for Kennewick Man“, Sept. 27-28, 2000; “Free Kennewick Man!” (pre-Columbian remains), Oct. 11, 1999.
Low exposures, 2002: “A breast-cancer myth“, Sept. 3-4; “‘Unharmed woman awarded $104,000’” (Canada), May 6. 2001: “There’ll always be a California” (chocolate and Prop 65), Dec. 4; “‘Incense link to cancer’“, Aug. 27-28; “‘Candles might be polluting your home, EPA says’“, Jun. 19; “While you were out: the carbonless paper crusade“, Apr. 25 (& letter to the editor, May 18); “Hunter sues store over camouflage mask“, Jan. 12-14. 2000: “‘Airbag chemical on trial’“, Aug. 14; “Multiple chemical sensitivity from school construction“, Jul. 3-4; “Feelings of nausea? Get in line” (Baton Rouge chemical spill), Jan. 26-27. 1999: “Lockyer vs. keys” (California attorney general declares brass a toxic hazard), Nov. 2.
Zoning, land use, 2002: “How much did you say that Indian legend was worth?“, Sept. 25-26; “‘Preserving’ History at Bayonet Point“, Feb. 15-17; “Planners tie up land for twenty years“, Jan. 18-20. 2001: “Columnist-fest” (John Tierney on NYC battle over IKEA site), May 25-27; “Lessons of shrub-case jailing“, May 17; “Perils of regulatory discretion“, Jan. 24-25. 2000: “Cornfield maze as zoning violation“, Oct. 30. 1999: “Great moments in zoning law” (rescued pets from storm, charged with running unlawful animal shelter), Nov. 22.
“Going to blazes” (logging and Western fires), Jul. 1-2, 2002; “Credibility up in smoke?” (same), Jul. 12-14, 2002; letter to the editor, Oct. 23.
Industrial farming: “‘Tampa Judge Tosses Out Class-Action Suit Against Hog Company’“, Jul. 3-9, 2002; “RFK Jr. blasted for hog farm remarks“, Apr. 15, 2002 (& Apr. 17, Apr. 19-21, letter to the editor and editor’s response, Apr. 19); “Chickens are next“, Feb. 6-7, 2002; “Judge throws out hog farm suit“, May 7, 2001; “Trial lawyers vs. hog farms“, Dec. 7, 2000; “This little piggy got taken to court“, Sept. 12, 2000; “Not so high off the hog“, Oct. 4, 1999.
“‘San Francisco Verdict Bodes Ill for Oil Industry’“, Jun. 11-12, 2002.
“‘Legal fight over chemical spill ends with whimper’” (W.V.), Jun. 7-9, 2002.
“Flowers, perfume in airline cabins not OK?” (Canada), May 17-19, 2002; “Scented hair gel, deodorant could mean jail time for Canadian youth“, Apr. 24, 2000.
“The mystery of the transgenic corn“, May 14-15, 2002.
“Erin Brockovich”, 2002: “‘Erin Brockovich, the Brand’“, Apr. 29-30. 2001: “Exxon Brockovich vs. Erin Valdez“, Nov. 15; “NBC mulls Brockovich talk show“, Nov. 6, 2001; “Brockovich a heroine? Julia really can act“, Mar. 23-25. 2000: “Errin’ Brockovich?“, Dec. 21, 2000; “‘All about Erin’“, Oct. 12; “More woes for ‘Brockovich’ lawyers“, Jun. 22-25; “Brockovich story, cont’d: the judges’ cruise“, Apr. 18; Brockovich story breaks wide open“, Apr. 17; “Plume of controversy“, Apr. 14-16; “Hollywood special“, Mar. 30. 1999: “A Civil Action II?“, July 7.
Trial lawyer/enviro alliance? “RFK Jr. blasted for hog farm remarks“, Apr. 15, 2002 (& Apr. 17, Apr. 19-21, letter to the editor and editor’s response, Apr. 19); “‘Working’ for whom?” (Environmental Working Group), May 23, 2001; “Judge throws out hog farm suit“, May 7, 2001; “‘Bogus’ assault on Norton“, Jan. 18, 2001; “Trial lawyers vs. hog farms“, Dec. 7, 2000.
“‘Former clients sue attorney O’Quinn’” (Kennedy Heights case), Apr. 8-9, 2002.
“Arsenic: one last dose?“, Mar. 22-24, 2002; “The view from Arsenictown“, Sept. 11, 2001; “‘The arithmetic of arsenic’“, Aug. 17-19; “Bush’s environmental centrism“, April 24; “Tempest in an arsenic-laced teacup?“, Apr. 18; “‘Bogus’ assault on Norton“, Jan. 18; “The Times vs. Gale Norton“, Jan. 15; “Ecology and economy“, Jan. 5-7, 2001.
“Liability concerns fell giant sequoia“, Mar. 12, 2002.
“Environmental lawsuits vs. military readiness“, Jan. 2-3, 2002.
“Overlawyered schools roundup” (environmental impact statement for teacher layoffs?), Dec. 7-9, 2001.
“Infectious disease conquered, CDC now chases sprawl“, Nov. 9-11, 2001.
“States lag in curbing junk science“, May 29, 2001.
“‘Family awarded $1 billion in lawsuit’” (Louisiana land contamination), May 24, 2001.
“Prospect of $3 gas“, May 10, 2001.
Who needs power anyway?: “Sweetness and light from Bill Lockyer“, Jun. 1-3, 2001 (& see June 8-10, June 22-24); “California electricity linkfest“, Mar. 26, 2001; “Brownout, Shivers & Dim, attorneys at law“, Oct. 11, 2000; “Worse than Y2K?” (EPA/DOJ suit against coal-burning utility plants), Nov. 18-19, 1999.
“Seventh Circuit rebukes EPA” (Superfund search and seizure), Apr. 23, 2001.
Attorneys’ fees: “Stories that got away” (Endangered Species Act suits), Jul. 23, 2001; “Losers should pay” (columnist Thomas Sowell; injunctions, bonding requirements), Aug. 4-7, 2000; “Marbled Murrelet v. Babbitt: heads I win, tails let’s call it even” (“one-way” fee shifts), Sept. 8, 1999 (& see National Law Journal, Dec. 14, 1999).
“Enviro litigator: debate belongs in Congress, not courts“, Dec. 29, 2000-Jan. 2, 2001.
“Federal power over mud puddles?” (wetlands case), Nov. 28, 2000.
“From the evergreen file: cancer alley a myth?“, Nov. 8, 2000.
“‘A Civil Action’ and Hollywood views of lawyers“, Jun. 20, 2000.
“Don’t cooperate” (lawyers’ advice re local health survey), Jun. 9-11, 2000.
“This side of parodies” (“dihydrogen monoxide” parody), May 10, 2000.
“Emerging campaign issue: ‘brownfields’ vs. Superfund lawyers“, Apr. 4, 2000; “Mayors: liability fears stalling ‘brownfields’ development“, Feb. 26-27, 2000.
“Lawyers for famine and wilderness-busting?” (anti-biotech), Jan. 3, 1999.
“Weekend reading: evergreens” (Race car great Bobby Unser’s snowmobiling rap), Dec. 3-5, 1999.
“Leave that mildew alone” (EPA considers mildew-proof paint to be pesticide), Nov. 30, 1999.
“Flag-burning protest requires environmental permits” (one for smoke, one for fire), Nov. 3, 1999.
“A mile wide and an inch deep” (EPA considers Platte River impaired because sun heats it up), Oct. 15, 1999.
“Careful what you tell your lawyer” (feds demand waiver of lawyer-client confidentiality in environmental cases), Sept. 14, 1999; “Overlawyered skies not always safer” (environmental audits and other “self-critical analysis”), Jul. 19, 1999.
“Tainted cycle” (class action over infectious bacterium in Milwaukee water supply), Sept. 2, 1999.
Articles by Overlawyered.com editor Walter Olson:
“Hollywood vs. the Truth” (“Civil Action” movie), Wall Street Journal, December 23, 1998.
“Lawyers with Stethoscopes: Clients Beware“, Manhattan Institute Civil Justice Memo # 26, June 1996.
Recount battles, 2002: “Campaign roundup“, Nov. 4-5. 2000: “O’Quinn a top Gore recount angel“, Dec. 15-17 (& letters, Dec. 20); “Supreme Court: forget that recount“, Dec. 13-14; “What was the Florida court thinking?” (Boies-submitted affidavit), Dec. 11-12; “Florida lawyers’ day jobs, cont’d“, Dec. 11-12; “Florida’s legal talent, before the Chad War“, Dec. 8-10; “Welcome Mother Jones readers“, Nov. 30; “Follow instructions, please“, Nov. 27; “Votes only lawyers can see“, Nov. 26; “Gore lawyers mishandled Illinois precedent“, Nov. 24-26; “Gore’s point man argued against dimples in 1996“, Nov. 22-23; “Descent into the lawyerclysm” (parody), Nov. 22-23; “The O.J. trial of politics“, Nov. 21; “Flow control“, Nov. 20; “Punch-outs, Florida style“, Nov. 17-19; “Palm Beach County ‘under control’“, Nov. 16; “Foreign press on election mess“, Nov. 15; “Election hangs by a chad“, Nov. 13; “Elections special: litigating our way into a constitutional crisis?“, Nov. 10-12; “Lawyers descend on Florida“, Nov. 9.
White House 2000, campaign: “Mickey Kaus on constitutional activism“, Nov. 10-12; “Election roundup“, Oct. 23; “George W. Bush on lawsuit reform“, Oct. 16-17; “Presidential debate“, Oct. 4; “I know [you] will give $100K when the president vetoes tort reform, but we really need it now“, Sept. 14, 2000 (& more coverage of call-sheet affair: Sept. 15-17, Sept. 19, Sept. 27-28); “The Veep that got away” (Sen. John Edwards, D-N.C.), Aug. 15; “Bush-Lieberman vs. Gore-Nader?“, Aug. 14; “Litigation reform: the Texas experience“, Aug. 11-13; “Senator Lieberman: a sampler“, Aug. 8-9; GOP convention coverage (Aug. 4-7, Aug. 3); “CSE event in Philly” (“Sharkman”), Aug. 3; “Clinton’s trial-lawyer speech, cont’d“, Aug. 1 (& “a footnote”, Aug. 2); “Clinton’s date with ATLA“, Jul. 31; “No diaries for Cheney“, Jul. 31; “Veeps ATLA could love“, July 7-9; “Not with our lives you don’t” (gun suits as campaign issue), May 9; “Gore among friendly crowd (again)“, April 12; “Emerging campaign issue: ‘brownfields’ vs. Superfund lawyers“, Apr. 4; “Al Gore among friendly crowd“, Mar. 30; “Bush unveils legal reform plan“, Feb. 18; “Bill Clinton among friendly crowd“, Feb. 14; “GQ on Gov. Bush, Karl Rove and litigation reform“, Jan. 7; and see Ralph Nader coverage.
“Monitor vote fraud, get sued for ‘intimidation’“, Oct. 24, 2000.
May 30-June 1 — “Judge Allows Lawyer to Add Shell Oil as Nightclub Fire Defendant”. Rhode Island: “Attorney Ronald Resmini, who sued for damages in federal court last month, said he added Shell Oil and its affiliate, Motiva Enterprises LLC, to his lawsuit because The Station nightclub owners distributed tickets to their club from a Shell gas station they owned. ‘They were giving away free tickets if you bought so much merchandise,’ Resmini said.” Lawyers’ quest for deep pockets has already resulted in the naming of brewer Anheuser-Busch and the town of West Warwick, among other defendants. (AP/MSNBC/7 News Boston, May 29). (DURABLE LINK)
May 30-June 1 — “Diet Drug Litigation Leads to Fat Fees”. “A federal judge in Philadelphia has awarded interim fees of more than $150 million to 83 plaintiffs’ law firms for their work in the massive fen-phen diet drug litigation that led to a $3.75 billion class action settlement. The interim fees are just a fraction of what the plaintiffs’ lawyers could ultimately earn, since it covers only work up to June 30, 2001. In their fee petition, the lawyers asked for $567 million.” (Shannon P. Duffy, The Legal Intelligencer, May 21)(see Sept. 27-29, 2002, and links from there). And, reports Texas Lawyer: “A group of Houston plaintiffs’ lawyers who were major players in fen-phen litigation in the late 1990s are now jumping into the ephedra arena and plan to use many of the tactics they learned in fen-phen suits in the new litigation.” Ephedra, an herbal remedy, promotes weight loss and energy but can have serious side effects. (Kelly Pedone, “Lessons Learned in Fen-Phen Suits Factor Into Ephedra Cases”, Texas Lawyer, Apr. 15)(see Sept. 10, 2001). (DURABLE LINK)
May 30-June 1 — “Buchanan & Press”. Viewers who tuned into the popular MSNBC debate show last night (Thurs.) saw our editor debate former ATLA president Barry Nace on the merits of Common Good’s “early offers” proposals for limiting lawyers’ contingency fees (see May 29) A full transcript is likely at some point to be posted here. (DURABLE LINK)
May 29 — Hold the gravy? Common Good, the reform organization headed by author Philip Howard, has launched a new campaign to limit the fees plaintiff’s lawyers can charge in cases that settle promptly. “The proposal would require plaintiffs’ attorneys to submit a notice of a planned lawsuit to defendants in contingency fee cases. If a settlement offer is made and accepted within 60 days of the notice, the attorney must charge an hourly rate that cannot exceed 10 percent of the settlement amount.” (Elizabeth Neff, “Plan Would Cap Contingency Fees”, Salt Lake Tribune, May 25). Petitions to this effect have been filed in recent weeks by lawyers working pro bono in Alabama, Arizona, California, Colorado, Maryland, Mississippi, New Jersey, New York, Ohio, Oklahoma, Texas, Utah and Virginia. (Daniel Wise, “Attorney Fees in Personal Injury Cases Targeted”, New York Law Journal, May 8; Adam Liptak, “In 13 States, a Push to Limit Lawyers’ Fees”, New York Times, May 26). (DURABLE LINK)
May 29 — Decorating for reconciliation. Okay, for a change, here’s a vignette that made us think maybe there’s hope for the profession: “Though hardly sentimental in the courtroom, Ms. Gold-Bikin [divorce attorney Lynne Z. Gold-Bikin of Philadelphia’s Wolf, Block, Schorr & Solis-Cohen LLP] says she often urges settlement and, even, reconciliation…. Coupons for free marriage-counseling sessions are set out on the coffee table. … ‘I’m a divorce lawyer who believes in marriage. So I started collecting old wedding photos and licenses. Then I found that if I put them up around the office, clients would have to walk past them and, hopefully, think twice about what they were about to do. There are plenty of marriages we’re never going to save. But there are a lot we can work on. Many people who come here shouldn’t be getting divorced. They’re just stuck, and I hope this makes them reconsider.'” (Nancy D. Holt, “The rite of matrimony”, CareerJournal.com (WSJ), May 15; also appeared in Wall Street Journal, May 14, as the “Workspaces” column). (DURABLE LINK)
May 28 — Vitamin class action: some questions for the lawyers. Last month “appeal court justices in San Francisco did something unusual: They mailed out a letter asking lawyers in a massive vitamin price-fixing class action to explain a few things. Why, the 1st District Court of Appeal wanted to know, are so many law firms involved? How did the number of coordinated cases grow by 12 in one six-month period? How many out-of-state law firms are involved? Which of the defendants previously entered guilty or no contest pleas to criminal charges?” At least fifty class action law firms nationwide are hoping to split a $16 million fee pot, but Oakland, Calif. attorney Larry Schonbrun, the nation’s best-known objector to class actions, says there’s “no reason why much fewer law firms could not have handled this case”. And: “This is a money machine. It’s feeding at the trough.” (Mike McKee, “Enriching the Record”, The Recorder, May 27). (DURABLE LINK)
May 28 — “Sex, God and Greed”. Forbes on the priest scandals and the associated “litigation gold rush” which could leave the Roman Catholic Church facing $5 billion in payouts. “The lawyers who are winning settlements from Catholic dioceses are already casting about for the next targets: schools, government agencies, day care centers, police departments, Indian reservations, Hollywood. … The lawyers are lobbying states to lift the statute of limitations on sex abuse cases, letting them dredge up complaints that date back decades.” (Daniel Lyons, Forbes, Jun. 9). Sidebars: “Battle of the Shrinks” (role of recovered memory in some cases); “Heavenly Cash” (questionable claims). Our editor weighed in a couple of years ago on the practice of lifting statutes of limitation. (DURABLE LINK)
May 27 — “State is suing ex-dry cleaners”. California Attorney General Lockyer is suing retired owners of Mom-and-Pop dry cleaners in the town of Chico under the federal Superfund law, accusing them of pouring dry-cleaning chemicals down their drains decades ago. “Bob and Inez Heidinger — he’s 87, has Alzheimer’s disease and is blind in one eye; she’s 83, has bone marrow cancer and needs shoulder surgery” — are being sued for $1.5 million on charges (which they deny) of disposing of PCE in such a manner between 1952 and 1974, when they sold the business. Also being sued is “Paul Tullius, a 57-year-old retired Air Force pilot, and his wife, Vicki, who own a warehouse that last housed a dry cleaner in 1972 — 16 years before they bought the building without knowing its entire history.” “This is the most draconian law you could ever imagine,” says Tullius. “…Can you imagine what that does to your life? I’m sort of thinking this isn’t the country I thought it was.” (Gary Delsohn, Sacramento Bee, Apr. 28). (DURABLE LINK)
May 27 — Courtroom assault on drugmakers. A week or two ago the New York Times somewhat belatedly discovered that trial lawyers have ginned up a large amount of well-organized litigation against pharmaceutical makers over alleged side effects. (Alex Berenson, “Giant drug firms may face lawsuits”, New York Times/Oakland Tribune, May 18). Some reactions: Derek Lowe (“Because That’s Where the Money Is”, Corante, May 16), Ernie the Attorney (May 18), MedPundit (May 19), MedRants (May 19), William Murchison (“Lawyers Who Make You Sick”, syndicated/TownHall, May 20) (the last of these via SickofLawsuits.org, a new health-focused site associated with the Citizens Against Lawsuit Abuse tort reform groups). (DURABLE LINK)
May 24-26 — “‘Trial Lawyers Get Spanked'”. Our editor had an op-ed Friday in the Wall Street Journal celebrating the Florida appeals court’s striking down of the absurd $145 billion class action verdict in the Engle tobacco case. (Walter Olson, WSJ/ OpinionJournal.com, May 23). Other columns on the decision include Jacob Sullum, “Appealing Price”, syndicated/Reason.com, May 23, on the appeals bond issue; and George Will, “The States’ Tobacco Dilemma”, syndicated/Washington Post, May 23, on the hypocrisy of state governments. (DURABLE LINK)
May 24-26 — Hitting the jack-potty. “A city worker has hit the jack-potty. Cedrick Makara, 55, scored a $3 million jury verdict last week because he hurt his thumb trying to get out of the john of a Manhattan building where he works.” The building’s manager and owner are on the hook. The stall in question “had a missing doorknob. [Attorney Sheryl] Menkes said Makara reached his hand through a hole where the knob should have been and pulled the door toward him just as someone entering the bathroom pushed the door in,” causing him to injure tendons in his thumb and miss six months of work as a city claims examiner. (Helen Peterson, “He’s flush after $3M potty suit”, New York Daily News, May 21). More: Boots and Sabers comments on the case (May 25). (DURABLE LINK)
May 22-23 — Court overturns $145 billion Engle award. Not to say “we told you so” about yesterday’s Florida appellate decision reversing the tobacco-suit atrocity, but, well, we did tell you so back in 1999: “The smart money is betting last week’s Miami anti-tobacco jury verdict will be overturned on the issue of class certification — whether every sick Florida smoker should have been swept into a class suing cigarette makers despite vast differences among individuals on such issues as why they decided to smoke or quit.” We had more to say about the case, also in the Wall Street Journal, a year later (July 18, 2000), as well as on this site. The latest decision is on FindLaw in PDF format and a very fine decision it is indeed — if this keeps up, the Florida courts may start getting their reputation back (Manuel Roig-Franzia, “$145 Billion Award in Tobacco Case Voided”, Washington Post, May 21). (DURABLE LINK)
May 22-23 — Must be why the show has so many fans. Received recently from the publicity department at St. Martin’s Press, publisher of our editor’s latest book: “The Rule of Lawyers by Walter Olson will be a prop in the show, Sex and the City! It will be a prop in Miranda’s apt. thoughout the season. The pilot airs early June.” (DURABLE LINK)
May 21 — Update: McMahon’s mold claim worth $7 mil. “Entertainer Ed McMahon reaped a $7 million settlement from several companies he sued for allowing toxic mold to overrun his Los Angeles home and kill his beloved dog, a national mold litigation magazine reported”. (“McMahon Gets $7 Mln in Toxic Mold Lawsuit – Report”, Yahoo/Reuters, May 7)(see Apr. 25, 2002). Addendum: blogger Stu Greene writes, “I wonder if the Prize Patrol delivered one of those oversized novelty checks with balloons tied to it.” (May 21) (DURABLE LINK)
May 21 — Auto-lease liability: deeper into crisis. Honda has become the latest automaker to announce that it will stop leasing new cars to buyers in New York, Connecticut and Rhode Island (see Mar. 12-14, 2003, Aug. 26, 2002). The problem is 1920s-era “vicarious liability” laws in those three states, fiercely guarded by the trial lawyer lobby, which expose leasing and rental car companies to unlimited personal injury claims when their customers get into accidents. Honda’s pullout follows withdrawals this spring by GM and Ford as well as by J.P. Morgan Chase, a major provider of auto financing in the Northeast. (“Industry report: Honda to stop leasing in 3 states”, Detroit Free Press, May 20 (scroll down); “American Honda Finance Corp. to Suspend All Leasing In Three States”, PR Newswire, May 19; “Auto lease fleece” (editorial), New York Daily News, Apr. 22 (scroll down); SaveLeasing.com; “Ford Blames Liability Law for Decision to Stop Leasing Cars in NY”, Insurance Journal, Apr. 7; Zubin Jelveh, “Leasing Companies Exit Left and Right”, Newsday, May 4). “More than $1.5 billion in such claims are pending in New York, said Elaine Litwer, legislative coordinator for the National Vehicle Leasing Association…. [Proponents of easing the law] received a big boost last month when the 75,000-member New York State Bar Association split from the trial lawyers and said the vicarious liability law was never meant to apply to leases and supported changes.” (Barbara Woller, “GMAC leaves New York’s auto leasing market”, Journal News (Gannett, Westchester County), May 1; John Caher, “State Bar, Trial Lawyers Part Ways on Tort Reform”, New York Law Journal, Apr. 8). More: Jun. 9, 2003; Sept. 5, 2004. (DURABLE LINK)
April 30 — Michigan prisoner sues for recognition as Messiah. “A prisoner who claims he is God has sued the U.S. government, the state of Michigan, a book publishing company, a radio program and several others.” The case of inmate Chad De Koven, 43, reflects a more serious problem: in spite of reforms at both the federal and state level that have aimed at curbing unmeritorious suits by those behind bars, “Michigan Assistant Attorney General Leo Friedman heads a division of 19 lawyers who do nothing but handle prison litigation.” (Crystal Harmon, Bay City Times, March 28). Update May 14: judge dismisses case in 22-page opinion.
April 30 — “States Mull Suit Against Drug Companies”. Latest nominee for Next Tobacco designation are the folks who’ve allegedly charged too much for saving our lives: “In an action modeled on their 1998 class action lawsuit against the tobacco industry, at least six states are poised to go to court to try to force pharmaceutical companies to lower prescription prices … Attorneys general in Florida, Georgia, Maine, Massachusetts, Nevada and Texas are among those considering legal action, officials from some of the offices said. … A catalyst for state legal action is Florida businessman Zachary Bentley, who is going from state to state urging state attorneys general to sue drug manufacturers.” Bentley, himself a disgruntled competitor of the drug companies, says they overstate the average wholesale price of many drugs so as to boost what Medicare and Medicaid programs will pay for them. “Under whistleblower and federal False Claims laws, Bentley gets a portion of any settlement that results from what he’s revealed.” (Mary Guiden, Stateline.org, April 2)(more on False Claims Act: July 30).
April 30 — “Radio ad pulled after lawyers object”. Following protests from the state bar association, the Kentucky transportation department last month agreed to stop airing a traffic-safety radio ad based on a well-worn lawyer joke. The joke? “A car full of lawyers turned over right in front of old man Jenkins’ place. He comes out and buries them all. The sheriff asked old man Jenkins, ‘You sure they were all dead?’ ‘Well,’ says Jenkins. ‘Some said they weren’t. But you know how them lawyers lie.”’ The ad urged motorists to slow down so as not to meet a similar fate. (Jack Brammer, Lexington (Ky.) Herald-Leader, March 27).
April 27-29 — Victory in Albany. Unanimous, long-awaited, and devastating: by a 7-0 vote New York’s highest court yesterday rejected the most important elements of the much-hyped lawsuit Hamilton v. Accu-Tek, which seeks retroactively to tag gun manufacturers with liability for criminal misuse of their products. Answering two questions certified to them by the federal Second Circuit, the jurists of the New York Court of Appeals declined to impose a new legal duty of gun manufacturers toward anyone who might fall victim to post-sale misuse of guns, and also ruled out the application of “market-share liability”, the adventurous theory by which plaintiff’s lawyers were attempting to impose liability on gunmakers without having to show that their guns figured in particular shootings. Both rulings stand as a reproof to activist federal judge Jack Weinstein, who had kept the Hamilton suit alive despite many indications that it had no grounding in existing law. (Joel Stashenko, “Court says gun manufacturers not liable”, AP/Albany Times-Union, April 26; “N.Y. Gun Ruling Could Have National Impact”, AP/FoxNews.com, April 27; John Caher, “New York Rules Gun Manufacturers Not Liable for Injuries”, New York Law Journal, April 27; read full opinion (PDF) — Firearms Litigation Clearinghouse site).
Other judges have lately thrown out of court municipal antigun suits filed on behalf of New Orleans and Miami (Susan Finch, “N.O. gun suit shot down”, New Orleans Times-Picayune, April 4; Susan R. Miller, “Appeals Court Halts Miami-Dade Suit Against Gun Industry”, Miami Daily Business Review, Feb. 15). And the Florida legislature has voted on largely partisan lines, with Democrats opposed, to join 26 other states in spelling out explicitly that cities, counties and other subdivisions of state government have no authority to file recoupment actions against gun makers and dealers over criminals’ misdeeds (“Florida Legislature Votes to Insulate Gunmakers”. Reuters/Yahoo, April 25; see also Charlotte Observer, April 26) (N.C. bill). Unfortunately, judges have recently allowed novel anti-gunmaker suits to proceed in Chicago and Atlanta; and as the gun-control-through-lawyering crowd knows too well, even a few eventual breakthroughs for their side may be enough to ruin this lawful industry (Todd Lighty and Robert Becker, “Gun victims’ lawsuit against firearms industry can move forward”, Chicago Tribune, Feb. 15).
MORE: Jeff Donn, “Maker of the .44 Magnum turns to golf putters and teddy bears”, AP/Minneapolis Star Tribune, April 14 (after the failure of its attempt to cut a deal with its legal tormentors, S&W struggles to stay afloat; one lawsuit had cost the company $5 million just to be dropped from the case); Tanya Metaksa, “Smith & Wesson’s Deal With the Devil”, FrontPage, April 12; Kris Axtman, “Gunmakers not about to run up white flag”, Christian Science Monitor, Dec. 15. Politicians have begun to move away from reflexive antigun sloganeering as election results have made clear that the supposed antigun consensus in American public opinion is no consensus at all (Michael S. Brown, “Gun Control: What Went Wrong?”, FrontPage, April 26).
April 27-29 — “Iowa Supreme Court says counselors liable for bad advice”. “A high school guidance counselor can be held responsible for giving wrong advice to a student that damages the student’s educational goals, the Iowa Supreme Court ruled Wednesday.” Katie, bar the door! (AP/CNN, April 26).
April 26 — “Legal action prolongs whiplash effects: experts”. Yet another study, this time from researchers at the University of Adelaide, Australia, finds that after auto accidents people experience more pain and quality-of-life deterioration if they are pursuing litigation (Australian Broadcasting Corporation, April 12) (see April 24, 2000). Also see Kevin Barraclough, “Does litigation make you ill?” British Medical Journal, March 31.
April 26 — Judge offers “court phobia” defense. Court-appointed special masters found that Los Angeles County Judge Patrick Murphy took more than 400 days of unjustified sick leave at taxpayer expense since 1996. They were not “impressed with what they called his ‘evolving defense,’ which began with claims that his political opponents were behind the accusations and ‘matured’ into a defense that he was disabled because of a ‘phobic reaction to judicial activities.'” (Sonia Giordani, “Los Angeles Judge’s ‘Court Phobia’ Defense Falls Flat”, The Recorder, April 12).
April 26 — The law must be enforced. In St. Cloud, Florida, 12-year-old Derrick Thompson tried to cross a street against the traffic and got hit by a truck, to onlookers’ horror. Dazed and bleeding, Derrick got another surprise minutes later when town police handed him a ticket for jaywalking. (Susan Jacobson, “Ticket seen as insult to injury”, Orlando Sentinel, April 13).
April 25 — While you were out: the carbonless-paper crusade. Some people are convinced their health has been damaged by ordinary workplace exposure to the chemicals present in carbonless paper, the material used in pressure-sensitive memo slips and similar office supplies. (“Carbonless Copy Paper — The Injury and Information Network”, carbonless.org). Although the product’s makers, such as Appleton Papers and the Mead Corporation, deny that there’s anything to be feared from working with receptionist’s pads or other multiple forms, a number of news reports have uncritically accepted the idea of a causal link between the paper and the ills complained of — to MSNBC’s Francesca Lyman, for example, “probably thousands” have fallen victim to the scourge, showing how “a seemingly benign product could leave a trail of damage”. (“The carbonless paper caper”, MSNBC, Jan. 17 (page now removed, but GoogleCached); see also Keith Mulvihill, “Sick of Paperwork? Some Office Workers Say It’s the Paper”, New York Times, Sept. 26, 1999 (reg); Tracy Davidson, WCAU-TV Philadelphia “Consumer Alert“). Inevitably, those who feel victimized are filing suits against companies that manufacture the product.
None of the activists have figured more prominently in news stories than Brenda Smith of Virginia Beach, Va., who filed suit in 1993 over a variety of symptoms including “headaches, sinus and allergy problems, skin and eye irritation, sore throats, respiratory infections, bronchitis,” and others, which she believes resulted from exposure to the chemicals in carbonless paper at her job. “The potential for litigation from worker’s compensation to product liability is huge,” she told The American Enterprise. However, the magazine also unearthed one extra little fact which the earlier press reports had neglected to mention: that “the health-afflicted Brenda Smith was addicted to cigarette smoking, which she admitted to TAE when we bothered to ask. Apparently some reporters didn’t think that fact advanced their story.” (“Scan”, The American Enterprise, April/May (scroll down to “Smoking Gun”)) See also Bob Van Voris, “Scents or Nonsense?”, National Law Journal, Nov. 6, 2000. NIOSH review (PDF — very long)(& see letter to the editor, May 18).
April 25 — Value of being able to endure parody without calling in lawyers: priceless. When MasterCard sent its lawyers to do a cease and desist routine on rec.humor.funny over a tasteless parody of its “Priceless” ad campaign, list founder Brad Templeton posted this tart riposte on NetFunny.com (April).
April 24 — Put the blame on games. The lawyer for survivors of a murdered Columbine teacher has sued 25 media companies, mostly makers and distributors of video games whose violence he says incited the perpetrators of the crime. Attorney John DeCamp claims to be “100 percent on the side of the First Amendment” when he isn’t filing actions like this, and equally predictably says it’s not really about the money, which isn’t keeping him from demanding that the defendants fork over $5 billion-with-a-“b”. (Kevin Simpson, “Slain teacher’s family launches suit aimed at media violence”, Denver Post, April 21). Update Mar. 6, 2002: judge dismisses case.
April 24 — Pennsylvania MDs drop work today. “Hundreds of physicians from Southeastern Pennsylvania plan to shut down their offices and leave their hospital posts [Tuesday] to go to Harrisburg to insist that lawmakers enact insurance-tort reforms and give them relief from soaring malpractice-insurance premiums. … According to the Pennsylvania Medical Society, obstetricians in the Philadelphia region pay an average of $84,000 yearly in malpractice insurance, while the same doctors in New Jersey pay about $58,000, and in Delaware, $52,000. Neurosurgeons pay $111,000 for coverage in Philadelphia. If their practices were in New Jersey, the rate would be about $75,000.” (see Jan. 24-25). Timothy Schollenberger, president of the state trial lawyers’ association and evidently a man given to bold denials, says the protest is misplaced: “tort law is not a significant factor in making [malpractice] premiums rise or fall”. Kind of like an oil sheik denying that OPEC crude price hikes have anything to do with the cost of gas at the pump, isn’t it? (Ovetta Wiggins, “Doctors to protest premium increases”, Philadelphia Inquirer, April 23).
April 24 — Bush’s environmental centrism. The press has decided to make President Bush’s supposed anti-environmentalism the story du jour, but in fact “on almost every environmental issue, Bush has upheld the Clinton-Gore position.” (Gregg Easterbrook, “Health Nut”, The New Republic, April 30).
Among Bush proposals to meet with support from many centrists and Democrats is the one for a year-long moratorium on pressure groups’ use of endangered-species lawsuits to drive the agenda of the Fish and Wildlife Service; see Bruce Babbitt, “Bush Isn’t All Wrong About the Endangered Species Act,” New York Times, April 15 (reg); Michael Grunwald, “Bush Seeks To Curb Endangered Species Suits”, Washington Post, April 12 (“The litigation explosion has been so bad, we couldn’t even list species that were going over the edge,” said Jamie Rappaport Clark, who directed the service under Clinton. “We asked the courts to let us set our own priorities, but they wouldn’t budge.”)(see Dec. 4, 2000).
April 24 — Washington Post editorial on cellphone suit. We’ve appended highlights from yesterday’s refreshingly blunt Post editorial (“More Dumb Lawsuits”) to the item below on the Angelos onslaught against mobile telephony. Is it too much to hope that the New York Times or L.A. Times will someday start being even half as editorially sensible about litigation issues as the Post is?
April 23 — Sorry, wrong number. As expected, Baltimore tort tycoon Peter Angelos filed suit against 25 defendants including Nokia, Motorola, Ericsson, Verizon, Sprint and Nextel accusing them all of concealing the brain-frying horrors of cellular telephone use. “The suits do not claim that anyone has actually suffered an illness.” (Peter S. Goodman, “Angelos Suits Allege Cellular-Phone Danger”, WashTech.com/ Washington Post, April 19). In an editorial bluntly titled “More Dumb Lawsuits”, the Washington Post declares, “There is now a new way to satisfy the bemused foreigner who asks why a nation so proudly founded upon the rule of law is marked by such contempt for lawyers. Just tell the foreigner about the litigation against cell-phone makers that Peter Angelos began on Thursday.” Moreover, Angelos is demanding a remedy (free headsets) that “makes no sense … Mr. Angelos is seeking to replace a situation in which consumers are free to buy headsets if they choose with one in which they indirectly are forced to pay for them — and to pay Mr. Angelos’s fees into the bargain.” (April 23). Update Oct. 1-2, 2002: court dismisses case.
April 23 — Seventh Circuit rebukes EPA. A U.S. Court of Appeals has rebuked the Environmental Protection Agency, dismissing the Superfund suit in which the agency sought permission to enter and dig up the 16-acre property of John Tarkowski, a disabled and indigent building contractor in Wauconda, Ill. Tarkowski’s habit of accumulating surplus materials, from which he has constructed his house, has annoyed many of his upscale neighbors, but repeated investigations have failed to find any serious contamination on his property. Rejecting the government’s arguments, the appeals court held that EPA “sought a blank check from the court. It sought authorization to go onto Tarkowski’s property and destroy the value of the property regardless how trivial the contamination that its tests disclosed.” And: “In effect, the agency is claiming the authority to conduct warrantless searches and seizures, of a particularly destructive sort, on residential property, despite the absence of any exigent circumstances. It is unlikely, even apart from constitutional considerations, that Congress intended to confer such authority on the EPA.” (“U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy Elderly Wauconda Man’s Property”, press release from Mayer, Brown & Platt (whose Mark Ter Molen represented Tarkowski pro bono), Yahoo Finance/Business Wire, April 20).
April 23 — If I can’t dance, you can keep your social conservatism. The town of Pound in Virginia’s coal-mining western corner has an ordinance on the books that bans public dancing without a permit. Bill Elam is defying the law by operating his Golden Pine nightclub, while local clergy hope the town sticks to its guns: “I can never see a time when dancing can be approved of, especially with people who are not married,” said one. (“Virginia town outlaws dancing”, Nando Times, April 16).