Overlawyered

Judge Weinstein shepherds gun lawsuit

As if to confirm this website's worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a "public nuisance" suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein's previous opinions, the Ninth Circuit's unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20), and, while claiming that Sturm, Ruger supports it, ignores language (and related precedent) in that opinion that would preclude the City's theory of liability. (Tom Perotta, "Federal Judge Keeps New York City's Gun Suit Alive", New York Law Journal, Apr. 13; City of New York v. Beretta opinion).

(We presume Volokh and Cramer commentary will be up shortly, and will link then.)

Continue reading "Judge Weinstein shepherds gun lawsuit"

"The Erin Brockovich Effect"

Parachuting in without actually touching toe? This time it's a toxic-tort case in central Florida: "She has never set foot in Hillsborough County's rural Plant City, but her name alone is influencing news coverage, attracting clients and conferring credibility to illness reports." The suit alleges that Coronet Industries' phosphate plant is responsible for a wide range of ills, including those of the lead claimant's 3-year-old son, who suffers from autism and language disorders. (Ron Matus, "The Erin Brockovich effect: influence, inference", St. Petersburg Times, Apr. 11). For much more on Brockovich, see Mar. 16, Jan. 3 and links from there, and our Oct. 2000 treatment.

Wal-Mart: target

"Encouraged by the press criticism, entrepreneurial trial lawyers, eyeing Wal-Mart’s deep pockets with glee, have made it perhaps the biggest private-sector target of the nation’s plaintiffs' bar. In just ten years, the number of pending lawsuits against Wal-Mart has increased fourfold, to 8,000, and the company has tripled the size of its litigation department. ... Wal-Mart faces a growing number of potentially costly class action lawsuits, exemplified by a sex-discrimination suit brought by the Cohen, Milstein, Hausfeld & Toll firm, notorious for getting Texaco to pay $176 million to black employees in a discrimination suit." (Steven Malanga (Manhattan Institute), "What Does the War on Wal-Mart Mean?", City Journal, Spring). See Jul. 7-9, 2000 and more links: Feb. 1, 2004; Dec. 4, 2003; Jan. 11, Jun. 14, and Aug. 29-30, 2001; Sept. 6-7, Sept. 25-26, Nov. 15, and Dec. 13-14, 2000; and Dec. 2, 1999.

Boulder (& Orange County) publicity

Last week I took part in no fewer than eight panel discussions (these hosts work you hard) at the University of Colorado's 56th Conference on World Affairs. The Boulder Daily Camera covered the final panel, on taxes (Matt Branaugh, "Turning Up the Heat on Taxes", Apr. 10) while the student-run Colorado Daily ran a story on Tuesday's session, concerning the role of the media in court proceedings (Katherine Crowell, "'Trial by press' unjust", Apr. 7). Also, while I was speaking in Orange County, Calif. last month, Kyle Beckley interviewed me for the Chapman University Law School publication, the Esquirer; an excerpt appears at Beckley's website, OneL7 (Apr. 4).

"What the World Needs Now Is DDT"

"[W]hat really merits outrage about DDT today" is its underuse, as millions die annually of malaria for lack of the reviled pesticide, writes New York Times editorialist Tina Rosenberg. Commentators such as ABC's John Stossel got to the story first (see CEI, Todd Seavey), but the Times may be more effective at reaching those who can do something about the state of the law (New York Times Magazine, Apr. 11).

Med mal: around the blogs

Not that this exactly qualifies as news, but Sen. Tom Daschle says things to pro-tort-reform constituents back home that are rather different from what he says in Washington, notices the South Dakota Politics blog (Apr. 4, Apr. 7). And the departure of a surgeon in MedPundit Sydney Smith's home town, coinciding with a particularly obdurate sound bite from ATLA-admired Sen. Patrick Leahy, prompts her (Apr. 10) to give the Vermont Democrat an Open Secrets look-up (see also MedRants, Apr. 8, with comments section). Dr. Smith also notes (Apr. 6) that the med-mal crisis in famed Madison County, Ill., may play a role in the contemplated closure of Scott Air Force Base in Belleville.

"Dodgy Patents Rile Tech Industry"

Many techies are nervous if not aghast about the issuance of a number of patents by the U.S. Patent and Trademark Office in recent months, including one "awarded to security firm Network Associates that gives the company rights to technology that deletes 'undesired data' from a computer", and "another that gives Amazon.com the right to charge other website operators for using browser cookies that store data structures". (Amit Asaravala, Wired News, Apr. 5). Another controversial one: Frank Weyer and Troy Javaher of Beverly Hills were recently issued a patent for an Internet naming system. Earlier this year, they sued leading domain registrars Network Solutions and Register.com for alleged infringement of their patent. "The patent covers the method of assigning URLs and e-mail addresses of members of a group such that the "@" sign is the dot in the URL. For example, if a group used a so-called third-level URL, www.john.smith.com, the e-mail address would be john@smith.com." (Marguerite Reardon, "Domain registrars sued over URL patent", CNETNews.com, Jan. 15; "Nizza Group Sues Network Solutions and Register.com for Patent Infringement", news.webhosting.info, Jan. 11). Weyer and Janaver's Nizza Group issued a press release Jan. 8 about its success; its lawsuits have drawn much criticism in such places as The Register (Kieren McCarthy, "Patent lawyer puts claim to entire Internet", Jan. 17; Geek.com (Jan. 20); Slashdot).

Easter chocolate bunny lawsuit

Swiss confectioner Lindt has filed for an injunction against the Austrian company Hauswirth, claiming that chocolate bunnies in gold foil are a Lindt trademark. Hauswirth says it has been producing such bunnies in Austria since 1962, and that Lindt previously lost a similar lawsuit against German rival Riegelein. (AFP, Apr. 8).

Auto-seller sued for elderly test-driver's accident

William Cecil Weeks was test-driving a car when he ran a red light and hit Vicki Hiers's pickup, ejecting her from the vehicle and causing brain damage. This, the Hiers family claims in a lawsuit filed by Michael Strickland, is the fault of Ken Isaacs Chevrolet-Cadillac in Moultrie, Georgia, because they let the 86-year-old test drive a car alone. (Lori Glenn, "Lawsuit alleges negligence in wreck", Moultrie Observer, Apr. 10). Under Georgia law, Code 40-8-76.1, item D, the auto dealer is not allowed to defend itself at trial by alleging that Ms. Hiers might not have been ejected from her pickup had she worn her seat belt, but perhaps they will be able to note that auto salespeople are not imbued with the power to hit the brakes from the passenger seat.

"Lawyers Shift Focus From Big Tobacco to Big Food"

People may have laughed 16 months ago when obese teenagers unsuccessfully sued McDonald's, saying its food made them fat. But a well-honed army of familiar lawyers who waged war against the tobacco companies for decades and won megamillion-dollar settlements is preparing a new wave of food fights, and no one is laughing.

[...]

"I think it's a mistake, and I've told clients this, to underestimate the creativity and the imagination and very frankly the aggressiveness of the plaintiffs' bar," said Joseph McMenamin, a defense lawyer and doctor in Richmond, Va. "They have a hell of a track record, frankly. They kept slogging away on tobacco and eventually they prevailed, and the sums of money companies had to pay exceed the gross national product of some third-world countries."

(Kate Zernike, New York Times, Apr. 9) (via Bainbridge).

Movie theater pays $3M for relationship gone bad

You're looking at the headline and thinking that a victim of sexual harassment got a windfall, but the plaintiff was 52-year-old movie theater manager Gary Trepanier. Trepanier was dating a part-time concessions worker; the movie theater chain, National Amusements, found out about the relationship when he filed for a personal protection order against her phone calls after the relationship ended, and fired him for favoring the employee. Trepanier's lawyer, Glen Lenhoff, claimed this violated the Michigan Whistleblower's Act, and a jury awarded $1M in past and future wages and $2M for past and future mental anguish. (Ken Palmer, "Jury awards $3 million in cinema manager's firing", Flint Journal, Apr. 8).

Update: NJ $1.5M high school basketball verdict overturned

Superior Court Judge Paulette Sapp-Peterson threw out the $1.5M jury verdict Jennifer Besler had obtained against her basketball coach Daniel Hussong and the school district (Mar. 25), saying that Besler had not proven any real damages from the coach's yelling at her. The $100,000 verdict her father obtained for being gaveled into silence at a school board meeting stands. The Besler family and their attorneys have already promised to appeal. (Linda Stein, "Judge reverses verdict against coach", Trenton Times, Apr. 9; Lisa Meyer, "Judge nullifies jury’s decision", Trentonian, Apr. 9; AP, Apr. 9; Scott Frost, "Case opens coaches’ eyes", Trentonian, Apr. 9).

Update: (Linda Stein, "Coach longs for lost reputation", Trenton Times, Apr. 10).

Asbestosis testing scandal

The Mobile Register has a devastating expose of the asbestosis screening mills (Jan. 21 and links therein). Dr. David Egilman, who had testified for over 100 plaintiffs, has switched sides in the wake of abuses.

Over the years, he said, as the trial lawyers who hired him sent along the medical records of the plaintiffs, Egilman became increasingly troubled by what he saw.

"I realized at some point that some of these people are not really sick," Egilman said in a telephone interview last week. "From a policy perspective, I'm interested in justice. If all the people who are not sick get money, then there won't be enough money for the people who are sick -- that's the main issue."

Egilman said he believes that screening companies do two things that violate good public policy: They help generate tens of thousands of plaintiffs who aren't suffering from asbestos-related illness, thus draining billions of dollars from those who are ill; and they can create substantial health concerns on the part of those who get tested.

The Register also interviews Dr. Greg Nayden, who quadrupled his salary by returning a 100% hit rate in his asbestosis screenings, and uncovers a number of similar incredible tales. (Eddie Curran, "Diagnosing for dollars?", Mobile Register, Apr. 4). As Professor David Bernstein points out, the failure of judges to enforce existing standards for expert testimony in the asbestos context has made such abuses possible. ("Keeping Junk Science Out of the Asbestos Litigation", 31 Pepperdine L. Rev. 11 (2003)).

Inmate lawsuit scam busted

According to a recently filed indictment, three "maximum-security" inmates at the D.C. jail plotted to smuggle a gun in--not for reasons of revenge or escape, but, rather, to shoot themselves and then sue the city for failing to protect them from an "unknown" assailant. And, indeed, they did succeed in getting a gun into the jail, shooting themselves, and reporting themselves as victims of an unknown criminal. Unfortunately for these budding Professor Moriartys, they also shot a fourth inmate who now claims he did not want to be shot, and he broke up the scheme. A lawyer for one of the other three maintains that the shootings were the result of innocent bystanders being shot from a drug deal gone bad. (Henri E. Cauvin, "Inmates Charged With Plot to Get Shot, Sue D.C.", Washington Post, Apr. 8).

"Lawyers Bid Up Value Of Web-Search Ads"

Today's Wall Street Journal reports that online legal-ad spending has risen nearly 500% in the last year, as law firms pay $50 to $70 a click to have their web sites associated with search terms like "mesothelioma" -- because such cases can lead to quick settlements with asbestos-related defendants with low-risk contingent recoveries to attorneys of hundreds of thousands of dollars. As a result of other search-engine gaming efforts, "eight of the top 10 nonpaid listings in a recent Google search of 'mesothelioma' were for sites sponsored by law firms, pushing down nonlawyer sites such as the National Cancer Institute." (Carl Bialik, Wall Street Journal, Apr. 8 (subscription only)). Meanwhile, far less is spent each year on mesothelioma research than on lawsuits. (Wall Street Journal, Apr. 8 (subscription only)).

Texas court stops workers comp end-around

Workers' compensation laws generally prohibit workers from suing their employers, but three pipeline workers tried to circumvent this and supplement their workers' compensation payments by suing their employer's owner, a holding company. A trial court judge allowed the suit to proceed, and a jury awarded $122 million in 2000; the Corpus Christi appeals court has now reversed. ("El Paso wins appeal in plant blast", Houston Chronicle, Apr. 7; Coastal Corp. v. Torres, Mar. 25).

Teacher's relationship with 15-yo not grounds for firing

Australia is in an uproar after a New South Wales teacher, Jeff Sinclair, won a A$28,000 payout for "psychological injury" for being fired for starting a relationship with a 15-year-old student a third of his age. The Department of Education has been ordered to pay him an additional A$317 a week until he finds "suitable" employment. The government is appealing. (Bruce McDougall, "Teacher's cash over student love", news.com.au, Apr. 5; Miranda Devine, "The teacher who played victim", Sydney Morning Herald, Apr. 8) (via Jacobs).

Update: PetsWarehouse case

Latest chapter in the ongoing PetsWarehouse saga (Dec. 28, Oct. 5 and links from there): Robert Novak's lawsuit against Google and two other search engines was allowed to stand. Novak accused the search engines of violating the law by selling advertising tied to his trademarked phrase "pets warehouse". (Declan McCullagh, "Judge won't toss out Google, Overture suit", CNet News, Apr. 6; Mar. 25 opinion).

Eligible for "I Sued" sticker?

Stamford resident Robert Bonoff was handed an "I Voted" sticker on election day, and promptly ruined a suede coat by placing the sticker on it. He's asked the city to pay to replace the coat, and, so far, the city has said no. (AP, Apr. 7).