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Overlawyered — Chronicling the high cost of our legal system
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Chronicling the high cost of our legal system
Overlawyered
August 21st, 2008 at 8:02 am
No conscience clause for California fertility doctors
» by Walter Olson
They’ll have to assist unmarried women in giving birth even if doing so violates their religious scruples, according to a new California Supreme Court decision involving a lesbian applicant. As Bookworm Room points out (Aug. 19), and as we noted in the earlier Bay Area conscience controversy over gender-switch breast surgery, it makes a practical difference (if not one of libertarian principle) that there are plenty of other fertility clinics around San Diego that would be happy to step into the gap. The doctors in the case at hand might still escape liability because a ban on marital-status discrimination as such was not yet part of state law at the time they rejected Guadalupe Benitez; Benitez will win if she shows that the true motivating factor was her lesbianism. (Egelko, SF Chronicle, Recorder). The ruling also allows doctors to excuse themselves on the basis of religious scruples if there is a second doctor within the same practice — but not, apparently, a doctor across town at a different practice — willing to perform the work in question. And of course the legislature in Sacramento could readily help bring peace to the culture war by inserting into the law a generously drafted conscience clause — if it wanted to. In California; hospitals; medical
 Comments (1)
August 20th, 2008 at 9:49 pm
Station nightclub fire: government defendants settle
» by Walter Olson
The state of Rhode Island and town of West Warwick, the last major defendants left in the lawsuits over the Station/Great White fire, agreed to throw $10 million apiece into the settlement pot, which now reaches $175 million, to compensate the 200 injured and survivors of the 100 killed in the 2003 blaze. The town of West Warwick, population just under 30,000, is expected to have to borrow heavily to enable its payment; it has a $4 million insurance policy, but defense litigation costs will be deducted before any of that money is made available for the settlement (RedOrbit/ProJo, more, AP/Firefighting News via Childs). Dozens of private companies named in the suits had settled earlier, including many with peripheral or remote connections to the calamity, such as beer sponsor Anheuser-Busch, which together with a beer distributor agreed to pay $21 million, and radio operator Clear Channel, which paid $22 million. West Warwick will wind up paying much less than that, although its negligent contribution to the disaster (in failing to enforce key provisions of its own fire code) would appear immeasurably greater. Earlier posts here. In Anheuser-Busch; Clear Channel; deep pocket; fires; Rhode Island; Rhode Island Station nightclub fire; taxpayers
Comments (2)
August 20th, 2008 at 10:32 am
Requiring family social workers to report animal abuse
» by Walter Olson
Setting spies and informers against us in our houses dept.: I’m quoted about a bad idea under consideration by the New York legislature (Benjamin Sarlin, “Child, Animal Abuse Linked Under Albany Bill”, New York Sun, Aug. 20). In animals; child abuse; New York
Comments (11)
August 20th, 2008 at 9:25 am
Touch-a-car-for-the-longest contest
» by Walter Olson
In Longview, east Texas, the Patterson Nissan dealership held a contest awarding prizes to the participants who could hold their hands on a car the longest. One contestant dropped out, ran to a nearby store where he broke a gun out of its case, and shot himself. The dealership has now settled the lawsuit by Richard Thomas Vega II’s widow claiming that the stress and sleep deprivation of the event amounted to “brainwashing” and that the sponsors failed to make allowances for temporary loss of sanity. (AP/FoxNews.com, Aug. 17). In advertising; autos; guns; personal responsibility; suicide; Texas
Comments (6)
August 20th, 2008 at 6:32 am
August 20 roundup
» by Walter Olson
Lawyers’ contingency fee is temptation to ethical corner-cutting in consumer debt collection, too [Miami Daily Business Review, Popehat; Orlando's Palmer Reifler & Associates, mass mailing of demand letters to accused shoplifters]Discussion continues on loser-pays with me and many others at NewTalk, and note comment from Ontario lawyer [through today]Age bias suit by Hollywood writers gains traction. Next, actors? [Ink Slingers via Class Action Blawg weekly review]Class action against Quebec lottery on behalf of problem gamblers finally set for trial [CP/Yahoo, Lee Distad via Class Action Blawg, earlier]Should we and other commentators avoid mentioning litigants’ real names so as not to intrude on their Google legacy? [comments at Ron Miller/Md. Injury]California lawmakers OK feel-good “Donda West Law” but it won’t do much to keep impulsive clients from rushing into plastic surgery [GruntDoc, Cameron Turner/EURWeb, Truth in Cosmetic Surgery Blog]Probably not a swift career move for lawyer to tell bar disciplinary panel “Go to hell.” [ABA Journal]Class action forces HUD to allocate more to some Indian recipients, so it cuts other programs, bad news for North Carolina’s Lumbee tribe [Fayetteville, N.C. Observer courtesy US Chamber]Environmental authorities won’t press charges against man who shot protected rattlesnake that had just attacked and bitten him [eight years ago on Overlawyered] In age discrimination; California; Canada; compulsive gambling; contingent fee; debtor-creditor law; endangered species; Indian tribes; legal discipline; medical; movies film and videos; North Carolina
Comments (0)
August 19th, 2008 at 7:12 pm
“Divorce, Connecticut-Style”
» by Walter Olson
One Westport split cost the divorcing couple an estimated $13 million. It differed in degree, but not really in kind, from many lesser domestic catastrophes: “Divorcing couples in Connecticut regularly rack up bank-busting legal bills that can put the lesser earning party — and there often is an economic imbalance between warring couples — into bankruptcy. … the most expensive and sought-after divorce attorneys are commonly referred to as ‘junkyard dogs.’” Then there are the hefty sums you may be forced to hand over to lawyers who get themselves appointed guardians ad litem, to represent your kids against, well, you and your ex (Daniel D’Ambrosio, Hartford Advocate, Jul. 24). In children's rights; Connecticut; divorce; family law
Comments (1)
August 19th, 2008 at 5:37 pm
Lowering drinking age to 18
» by Walter Olson
A good idea. And from college presidents! (Baltimore Sun, Seattle P-I blog). MADD, of course, is having a fit. (Philadelphia Inquirer). More (via comments): Adler @ Volokh. In alcohol; colleges and universities; eat drink and be merry; MADD
Comments (17)
August 19th, 2008 at 9:59 am
“New Talk” discussion of loser-pays
» by Walter Olson
Philip Howard’s new online discussion series, New Talk, is back today with a discussion of loser-pays, moderated by Rebecca Love Kourlis. I’m one of the discussants, as is Marie Gryphon of the Manhattan Institute’s Center for Legal Policy, and a galaxy of others, including several law professors who can be expected to oppose the idea strongly. You can tune in here (cross-posted from Point of Law). More: publicity from Kevin Williamson at NRO Media Blog. In loser pays; WO writings
Comments (7)
August 19th, 2008 at 7:41 am
Mirapex jackpot justice - literally
» by Ted Frank
Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19). In compulsive gambling; failure to warn; jackpot justice; Mirapex; overwarning; pharmaceuticals; preemption; product liability; punitive damages; Supreme Court; Ted Frank
Comments (10)
August 19th, 2008 at 12:05 am
August 19 roundup
» by Walter Olson
Two topics of recent interest on the site — cremation and service monkeys — together in one post [The Urn Garden]Please don’t tell us an aggressive stance by music copyright holders is going to kill Pandora radio, one of the bright stars of the Internet [WaPo, more]“Citizens in Chains: The High Cost of Prisoner Lawsuits to California Taxpayers” [CALA, PDF]Navajo plaintiffs: spraying artificial snow on our sacred mountain is spiritually injurious [Volokh]Remember those anti-poverty non-profit groups that were going to represent the culmination of John Edwards’ life work, aside from running for you-know-what? Him neither [Silverstein, Harper's via Folo]Toxic tort class action in Saudi Arabia proves unsuccessful [Arab News]Fending off patent trolls has been expensive for high-tech Massachusetts firm Cognex [NLJ]Arizona law professor’s creative denials in paternity suit have furnished faculty-lounge chuckles for years [Caron/TaxProf, Jack J. Rappeport]New at Point of Law: big ruckus over proposal to compel accounting projections of lawsuit exposure; guestblogger Peggy Little on Connecticut vs. Countrywide, the ABA in judicial selection and more; cy pres litigation slush funds assailed as constitutionally dubious; Trial Lawyers Inc. series tackles the state of Ohio; MBIA mulls suing hedge fund that’s sniped at its stock; more on med-mal “loss of a chance”; and much more. In accounting; Arizona; copyright; Countrywide; cy pres; Indian tribes; John Edwards; law schools; music and musicians; Ohio; patent trolls; prisoners; Saudi Arabia
Comments (3)
August 18th, 2008 at 3:16 pm
Bill Lerach: Power lawyer to prisoner
» by Ted Frank
Via Point of Law, today’s DC Examiner has a big package of stories on trial-lawyer felon William Lerach:How the mighty Lerach has fallen: Power lawyer to prisonerWho lost when Lerach won?Lerach in short form (timeline)Nate Beeler caricatureThe “Who lost when Lerach won?” piece quotes me. In Bill Lerach; class actions; scandals; securities litigation; Ted Frank
Comments (0)
August 18th, 2008 at 12:07 pm
White Coat Rants on “never events”
» by Walter Olson
Blood should never clot, microorganisms should never happen, and one doc-blogger is on a tear (Aug. 14, more, Aug. 17) over the sometimes absurd hype being given to the concept: “Never events” are and always have been “all about the Benjamins.” Look at this news release. The “background” section states that the “never events” were “required” pursuant to Section 5001(c) of the Deficit Reduction Act. Medicare wants to stop paying for things not because they “should never happen” but because it’s trying to save money. The whole “never event” moniker is just a spin they put on the cuts to make it look like someone else’s fault. Do “never events” never occur at government run hospitals? We’ll never know because CMS doesn’t even include government run hospitals on the “hospital compare” list. In hospitals; medical; Medicare; never events
Comments (10)
August 18th, 2008 at 10:22 am
Red Sox fan: Yankee fans beat me up
» by Walter Olson
And it’s the fault of Yankees management and a stadium security firm, as well as the two men who actually knocked him around, says Charles Hillios of Chicopee, Mass., of the Aug. 29, 2007 incident at Yankee Stadium. (”Red Sox fan from Chicopee takes legal swing at New York Yankees”, Springfield, Mass. Republican, Aug. 6 via TortsProf weekly roundup). P.S. In comments, Curt Cutting calls our attention to a lawsuit arising from another fracas between fans of the two teams, this one in Carlsbad, Calif. In that one a jury awarded $25,000 to the Yankees fan “for injuring his hand when he punched” the Red Sox fan. In baseball; New York
Comments (1)
August 18th, 2008 at 10:05 am
Guestblogger thanks
» by Walter Olson
Thanks to Jason Barney for holding the fort in my absence last week. We’re expecting another guestblogger along soon as well. In guestbloggers
Comments (0)
August 18th, 2008 at 8:49 am
“The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?”
» by Ted Frank
Lester Brickman has a new must-read paper on an under-reported problem:Lawyers obtain the “mass” for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These “litigation screenings” have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers’ offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate “medical” evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants’ products. Usually a handful of doctors (”litigation doctors”) provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on “diagnoses” of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were “manufactured for money.”Despite the considerable evidence I review that most of the “medical” evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system. In asbestos; ethics; expert witnesses; fen-phen; mass screenings; mass tort fraud; scandals; silicone breast implants; silicosis; welding
Comments (0)
August 17th, 2008 at 10:29 pm
Coordinating the Edwards story
» by Walter Olson
Thursday’s New York Times investigates Fred Baron’s role (Serge F. Kovaleski and Mike McIntyre, “Lawyers’ Ties Hint at Extent of Hiding Edwards’s Affair”, Aug. 14; AP/L.A. Times; commentary at Deceiver, Jeralyn Merritt/TalkLeft, Greg Pollowitz/NRO Media Blog, DBKP; earlier). And more from DBKP here and here. P.S. And I didn’t realize until reading USA Today’s profile that scandal figure Andrew Young has served not only as a loyal Edwards foot soldier, but also as a lobbyist for the North Carolina trial lawyers’ association. In Fred Baron; John Edwards; North Carolina; Rielle Hunter; state trial lawyers groups
Comments (3)
August 17th, 2008 at 4:03 pm
Suit: Untimely cremation should net us $3.5M
» by Jason Barney
Or, so says a family’s suit against a funeral home and crematorium. It never ceases to crack me up how some people can take a modest, legitimate claim and blow it up into a claim for financial independence.53-year-old Pamela Grant died unattended, was autopsied and later cremated despite a fax by the funeral home to the crematorium instructing it to hold off. You see, the family says they wanted to view the body before cremation and place mementos with it. They were deprived of that chance and filed suit against the funeral home for $3M and the crematorium for $450K.Now, there’s certainly a legitimate complaint here but I see little to justify the sky-high demand. Naturally, the plaintiffs’ attorney is high-minded saying “his clients sued because they wanted to send a message to the businesses that their behavior was unacceptable.” Translation: it’s not about the money.The jury got it right, awarding $48K from the crematorium to the Grant children and nothing from the funeral home. That’s a far cry from the $3.5M demand and right in line with what the crematorium’s defense counsel suggested to the jury. (“Missed goodbye to cost crematory, not Oregon City funeral home”, OregonLive.com, Aug. 15).I’ve finished my week as guest blogger and will pass the torch back to Walter Olson. Walter, thank you again for the opportunity here on Overlawyered. In not about the money
Comments (3)
August 17th, 2008 at 1:07 pm
Ungoogle me, please
» by Jason Barney
Seattle attorney Shakespear Feyissa was accused of attempted sexual assault while attending Seattle Pacific University in 1998. He was never charged with a crime and naturally, not convicted. But since the allegations were covered in the school paper’s online edition they are cached in Google and easily uncovered for anyone who searches his name.SPU agreed to remove the story from the school paper but when administrators approached the student editors they said no way. Chris Durr, editor of The Falcon Newspaper said:We explained to them, if they wanted to start down a path of removing historical archives and pulling it from the public sphere, what they’re doing is censorship. We basically said, sorry, we have principles in journalism that don’t allow us to put stuff in the memory hole and pretend it never happened.(“Seattle attorney finds that the Internet won’t let go of his past”, Seattle Times, Aug. 15). In bloggers and the law; Google
Comments (9)
Previous Entries
No conscience clause for California fertility doctors on Transgender patient’s right to surgeryMark on No conscience clause for California fertility doctorsNo conscience clause for California fertility doctors on Catholic hospital won’t perform transgender-related surgeryWalter Olson on Station nightclub fire: government defendants settleTed Frank on Station nightclub fire: government defendants settlegitarcarver on Requiring family social workers to report animal abuseBumper on Requiring family social workers to report animal abuseWalter Olson on Requiring family social workers to report animal abuseStation nightclub fire: government defendants settle on Deep Pocket Files: beer defendants kick in $21 million in R.I. fireRon Miller on Requiring family social workers to report animal abuse No conscience clause for California fertility doctors Station nightclub fire: government defendants settle Requiring family social workers to report animal abuse Touch-a-car-for-the-longest contest August 20 roundup “Divorce, Connecticut-Style” Lowering drinking age to 18 “New Talk” discussion of loser-pays Mirapex jackpot justice - literally August 19 roundup Grand jury and Scruggs scandalIn case you thought the Mississippi saga was over, there are signs of impending action in the scandal's (thus far unresolved) Peters-DeLaughter branch.... Walter Olson"The rush to reregulate"AEI's Robert Hahn and Peter Passell: "Tighter regulation of the financial markets is almost certainly in the cards. But reregulation could have unintended consequences, bolstering the power of well-organized interest groups, reducing access to capital, and undermining America's competitive position.... Walter OlsonOhio's reform-tolerant Supreme Court, in the balance"In stark contrast with the past," notes David Owsiany, "Ohio's highest court recently upheld caps on non-economic and punitive damages in Arbino v. Johnson & Johnson and a ten-year product liability statute of repose in Groch v. General Motors Corp."... Walter Olson"Redlining" and the subprime bubble, cont'dA failure of the free market? Not exactly (via Bader, emphasis added): Internal documents show that even late in the housing bubble, [federal-government-sponsored] Fannie Mae was drawn to risky loans by a variety of temptations, including the desire to increase... Walter OlsonAt policyholders' expenseThe trial lawyers' answer for New York's tanking medical malpractice fund: raise premiums on property, casualty, and health-insurance policyholders to keep the money flowing. At least that's the position attributed in this story to familiar Litigation Lobby figure Joanne Doroshow,... Walter OlsonOut of Iraq in 2011?:From the Wall Street Journal:... Orin KerrJudicial Biography Needed:Every modern Supreme Court Justice becomes the subject of one or more judicial biographies. It's a different picture in the court of appeals. Circuit Court Judges occasionally become the subject of... Orin KerrMichigan Appeals Court Voids "Reform" Initiative:A state appellate court voted unanimously to remove a sweeping and controversial government reform initiative from the ballot, the Detroit News reports.... Jonathan AdlerHow Dangerous is the Russian Bear?I agree with much of what new Conspirator Eric Posner says about Russia in his recent post. Under Putin, Russia has clearly turned against Western liberal values and reasserted an... Ilya SominGood grief:This just means yet another person much smarter than I will be writing for this blog.... Dale Carpenter
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