Coyote Blog

A portion of my novel BMOC was satire of oddball lawsuits.  In that book, for example, I had a woman suing Disney because she found that the characters at Disney World were people in costumes rather than the actual animated characters she had expected.  I thought that was enough beyond reason and reality to constitute satire, but I guess I was wrong:

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased “Cap’n Crunch with Crunchberries” because she believed “crunchberries” were real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said “berries” were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit. She sued, on behalf of herself and all similarly situated consumers who also apparently believed that there are fields somewhere in our land thronged by crunchberry bushes.

I haven’t written that much lately about tort law, but it certainly has not gotten better.  Here is an example set of facts:

19-year-old Sidney Odom happily went along when 20-year-old Travis Kirby and 18-year-old Riley Strickland asked “Who wants to go to the Beacon?”—a bar in Terry, Mississippi. A long night of drinking and driving came to an end at about 3 am when Kirby’s Camaro hit a tree at about 90 mph. As none of the three were wearing seatbelts, all were ejected from the vehicle. Kirby, whose blood-alcohol level was three times the legal limit at 0.25%, died at the scene; the other two were injured.

Think for a moment about who you reasonably believe to be at fault for the accident.  Now, here is who actually was forced to accept liability:

• The dealer who sold them the car
• The shop that installed their tires
• Goodyear tire company

All you can say is, huh?  When looking at modern tort outcomes, a much better predictor of legally assigned liability than trying to decide who was trully at fault is to look at the net worth of everyone who had any relation to the victims, and assuming those with the highest net worth will end up being heald “liable.”

Via Overlawyered:

How “safety” news gets shaped: a litigation consultant “at the request of trial lawyers … combed through hundreds of coroner’s reports and media accounts” and before long ABC had an alarming story to run.

There is a symbiosis between tort lawyers (who want to inflame a jury into giving large awards, or better yet create a mass tort), the media (who want scare stories to boost circulation) and government (populated with legislators just itching to ban or regulate something to show they “care”).  Someone should write a book about that.

Forget for a moment the real scientific questions about the future magnitude of anthropogenic global warming.  Just imagine the abuse of this new proposed statute, given that incredibly difficult nature of causality in a complex, chaotic system like climate:

An under-the-radar provision in a House climate bill would give plaintiffs who claim to be victims of global warming a way to sue the federal government or businesses, according to a report Friday in The Washington Times.

The Times reported that Democratic Reps. Henry Waxman of California and Edward Markey of Massachusetts added it into a bill they authored.

The provision, which was just released, reportedly would set grounds for plaintiffs who has “suffered” or expect to suffer “harm” attributable at least in part to government inaction. The provision defines “harm” as “any effect of air pollution (including climate change),” according to the Times. Plaintiffs could seek up to $75,000 in damages a year from the government, with $1.5 million being the maximum total payout.

Remember that it was just weeks ago that the President of the United States blamed flooding in North Dakota on global warming.  If flood damage that resulted from a colder-than-average winter and near record snowfall can be blamed on anthropogenic global warming, then anything can.

Here is a real journalistic triumph — the story of a multi-party conflict in which I immediately dislike absolutely everyone in the story on all sides of the conflict, up to and including the jury and the third parties quoted.  Via Overlawyered.

Update: I failed to make clear that what really makes the article special is that the writer herself is at least as bad as everyone involved.  She writes in the first paragraph, “If you are black, you probably call the act of disciplining a child with corporal punishment ‘a whupping.’”  Really?  What’s next, is she going to tell us that they all like watermelon too?  Is this kind of blanket unsupported supposition about the habits of a particular race really in the the Chicago Sun-Times style manual on how to open a news feature?  I grew up in Texas and “getting a whupping” was a term favored right across racial lines.  Anyway,  I gotta go now and chase some varmints away from my cement pond out back.

Update #2: I just got an email that said “If you are white, you probably trade jars of Grey Poupon out the windows of your Rolls Royce.”  LOL.

from the AZ Republic:

A Yale University student is suing US Airways for $1 million because of the loss of a video game system he claims was taken from his luggage.

Ohio resident Jesse Maiman, 21, claims his Xbox 360 console was taken from his bag during a December flight from New Haven, Conn. to Cincinnati.

He is suing for $1,700 for the video game system and for the maximum damages allowable by law, or $1 million.

You can read the article all day and you will not find any extenuating circumstances to justify this arbitrarily absurd number.   Even $1,700 for the game system itself is absurd.  One hour of legal time on this would be worth more than the machine.

I haven’t written for a while about lawsuits, in part because our company was in the process of being sued for hundreds of thousands of dollars in two cases for a) allowing a customer to get a splinter in his/her foot from walking barefoot on a wooden deck and b) allowing a guy who just had a knee operation and jumped from a height of six feet to hurt his knee.   I really didn’t want to throw any more fuel on the discovery fire.

Anyway, that is all behind me, and just in time to post on a funny story via Overlawyered.  I have written a number of times about lawyers whose clients get coupons while they harvest millions in fees from a class action.  As I wrote here:

It used to be that clients would suffer some sort of injury and seek redress in the courts.  To do so, they would hire an attorney to help them.  The attorney was the hired help, compensated either hourly or via a percentage of any awards.

Today, the situation is often reversed.  It is the attorney who is identifying lawsuit targets for class actions and shareholder suits, and then seeking out clients who can maximize his chances of success.  Clients, who typically make orders of magnitude less than the attorney in class actions (think 50-cent coupons and $8 million attorney fees) are selected because they are sympathetic, or give access to a particularly plaintiff-attractive jurisdiction, or, in cases such as ADA suits in California, because they have effectively become partners with the attorney in serial torts.

So I had to laugh when I saw this story in Overlawyered yesterday:

The client class members were to receive only gift cards, not cash, in the settlement with Windsor Fashions, a clothing retailer, so Los Angeles Superior Court Judge Brett Klein thought it only fair to provide that Yorba Linda attorney Neil B. Fineman be paid his fee with “12,500 ten-dollar Windsor Fashions gift cards.”

Via the Liberty Papers:

U.S. states have not lived up to their commitment to devote a major portion of their huge legal settlement with the tobacco industry a decade ago on anti-smoking efforts, health advocacy groups said on Tuesday.

In the 10 years since the landmark deal, the states have received $79.2 billion of the settlement and another $124.3 billion from tobacco taxes, but have spent only about 3 percent of it — $6.5 billion — on tobacco prevention and cessation programs, the groups said in a report.

Gee, I really thought the settlement was about health care and tobacco education, and now I find out it was just a crass money grab?  Who could have ever predicted that?

Those who have read my novel will recognize the sarcasm.

WSJ, via Libertarian Leanings:

One of the worst places, in
term of frivolous lawsuits, was Jefferson County. It became renowned as
the lawsuit capital of the country, with more plaintiffs than
residents. This is the infamous county where one pharmacist was named
in more than 1,000 lawsuits. In one legendary case against a
pharmaceutical company that sold the diet pill Pondimin (part of the
weight-loss combination known as fen-phen, which was later banned), a
Jefferson County jury awarded $1 billion to the family of a woman who
had taken the drug.

But four years ago, Mississippi transformed itself
from judicial hell hole to job magnet, a story that is instructive for
other states trying to attract jobs in turbulent economic times. The
lessons here are especially timely, because the pro-growth tort reform
trend that was once spreading across the country may soon reverse
course….

Almost overnight, the flow
of lawsuits began to dry up and businesses started to trickle in.
Federal Express invested $1 billion in a new facility in the state.
Toyota chose Mississippi over about a dozen other states for a new $1.2
billion, 2,000-worker auto plant. The auto maker has stipulated that
the company would pull up stakes if the tort reforms were overturned by
the legislature or activist judges.

That hasn’t happened. About 60,000 new jobs have
arrived in four years – not a small number in a workforce of about 1.3
million – and a sharp improvement from the 30,000 jobs lost in the four
years before Mr. Barbour took office. Since the law took effect, the
number of medical malpractice lawsuits has fallen by nearly 90%, which
in turn has cut malpractice insurance costs by 30% to 45%, depending on
the county.

TJIC links to this great story about the engineer for the Citicorp building who realized, after the building was erected and occupied, that he had made a mistake that could make the building unsafe in high wind loads.  He raised his hand, called a penalty stroke on himself, and got the thing fixed when many others might have rationalized away taking action.  Fortunately, he was respected for doing so:

Before the city officials left,
they commended LeMessurier for his courage and candor, and expressed a
desire to be kept informed as the repair work progressed. Given the urgency
of the situation, that was all they could reasonably do. "It wasn’t a case
of ‘We caught you, you skunk,’" Nusbaum says. "It started with a guy who
stood up and said, ‘I got a problem, I made the problem, let’s fix the
problem.’ If you’re gonna kill a guy like LeMessurier, why should anybody
ever talk?"

I continue to worry, though, that we are actively aligning incentives against having a quality, open engineering dialog.  In any engineering discussion, I don’t think there has been a good safety dialog unless someone takes the position that the design (or drug, or whatever) is still unsafe.  Someone needs to advocate the position that the plan is unsafe even if that position is a straw man.  An open process encourages everyone to raise potential issues, even if these issues turn out not to be problems.

Unfortunately, in court, the very existance of such a discussion is used as evidence of liability.  Plaintiff’s lawyers wave internal memos at juries showing them that concern existed about safety.  The very healthy definition of a good safety engineering process - a concern and discussion about safety - is turned into evidence of its lack.  More here.

Despite seeing all kinds of major problems in tort law today, I have never been a huge proponent of many tort law reforms (though I support loser pays).  I don’t see why my ability to pursue legitimate damages in court should be curtailed.  What all these tort law reforms never get at is this:

A Glendale jury on Friday cleared an emergency room doctor of
negligence and liability in John Ritter’s death, holding he did
everything he could to save the comic actor. … Jurors, who voted 9 to
3 against liability for Lee and Lotysch, said they were torn between
sympathy for Ritter’s wife and children and their conviction that the
doctors were blameless.

The fact that the jury is at all conflicted on this point represents a huge miscarriage of justice, but this goes on every day in court.  In fact, if the doctors had worked for Exxon, you can bet Exxon would have been paying despite being blameless.

What patients (and juries) really seam to want is bad outcomes insurance rather than malpractice insurance.  This is in part born out by the fact that researchers can usually find little statistical relationship between truly bad doctors and the size of court malpractice payouts.  Maybe the answer to malpractice insurance is to convert it to a workers-comp-like no-fault insurance systems that pays off on bad/unexpected outcomes following a fixed schedule and keeps everything out of court.  The reduction in legal costs alone would be staggering.

The lawyers want $695 million

OK, perhaps it is a guilty pleasure, but I enjoy downing a couple of Mike Hard Lemonade’s on a hot afternoon.  Now, it seems, the Food Nazi’s at the Center for Science in the Public Interest want to stop me"

Public Citizen’s blog announced that CSPI
plans to sue the beverage sellers, asking for disgorgement of profits
from flavored malt beverages, unless they agree to take them off the
market. Their theory? By making flavored alcoholic beverages that taste
good, they are effectively marketing to children. (Because, after all,
adults don’t like beverages that taste good.)

The AP does a great job in this story reporting absolutely everything but the most important fact:

The Supreme Court has refused to offer help to Hurricane Katrina
victims who want their insurance companies to pay for flood damage to
their homes and businesses.

Wow, those insurance companies suck, and they have the Supreme Court in their pocket.  The only teeny-tiny fact missing is that the people suing had policies that very explicitly did not cover flood damage.    They sortof acknowledge this but say the insurance companies should pay anyway, because the flood was caused by a broken levee and that somehow is not really the same kind of flood, sort of.  Or whatever. 

From Overlawyered:

I was very amused by Brockovich’s remark "It is no coincidence that
thousands on Avandia now have heart attacks." Really? Thousands of
people who saw Erin Brockovich in the theaters have had heart
attacks, and many others have had strokes. Some even contracted cancer!
Coincidence, or has Ms. Brockovich put movie royalties ahead of safety?

I think the term "judicial restraint" is often used in another context, but for me, it aptly describes how the Third Circuit avoided calling this guy a f*cking moron.

I have not been able to read a Grisham lawyer novel since "the Runaway Jury,"  which was an absolutely amazing ode to the joys of jury tampering.  Seldom does one see an author treat so many abuses of due process and individual rights so lovingly, all because it is OK to take away a defendant’s right to a fair trial as long as the defendant is an out-of-favor corporation.  (On the other hand, Grisham’s "the Painted House," about growing up on a small cotton farm in the south, is wonderful).

Grisham’s biases in the Runaway Jury become clearer to me now that I now he pals with Dickie Scruggs, notorious Mississippi tort lawyer who is soon to be sharing a cell next to Jeff Skilling, that is unless they can delay his investigation until Jon Edwards is attorney general.

Anyway, it seems Grisham may be up for the bad timing award:

With what might seem like startlingly bad timing, Scruggs chum/novelist (and campaign donation co-bundler,
if that’s the right term) John Grisham is just out with a new fiction
entitled The Appeal, whose thesis, to judge by Janet Maslin’s oddly favorable review in the Times,
is that the real problem with the Mississippi judicial system is that
salt-of-the-earth plaintiff’s lawyers are hopelessly outgunned in the
task of trying to get friendly figures elected to judgeships to sustain
the large jury verdicts they win. One wonders whether any of Maslin’s
editors warned her about recent news events — she doesn’t seem aware
of them — that suggest that the direst immediate problems of the
Mississippi judiciary might not relate to populist plaintiff’s lawyers’
being unfairly shut out of influence. Of course it’s possible she’s not
accurately conveying the moral of Grisham’s book, and if so I’m not
likely to be the first to find out about it, since I’ve never succeeded
in reading more than a few pages of that popular author’s work. By the
way, if you’re wondering which character in the novel Grisham presents
as the "hothead with a massive ego who hated to lose,” yep, it’s the
out-of-state defendant.

If you would prefer a novel that make villains of tort lawyers and treats Mississippi as a trial-lawyer run legal hellhole, my novel BMOC is still on sale (and actually selling pretty steadily) at Amazon.

Because of the all-to-prevalent theory (which may become even more common if Jon Edwards becomes our next AG) that every accident must be the fault of the nearest person with deep pockets, I wasted an hour today.

I visited the NFL experience today with my son.  The NFLX is a kind of football-themed fair or amusement park that the NFL sets up near the site of each Superbowl  (HA HA NFL — I said it.  I said "Superbowl" and not "the big game."  Come and get me).  After waiting in a reasonable line to enter, we found that to play the games (e.g. throw the football through a hoop) every participant (read 10,000+ people) had to individually fill out and sign a liability waiver and get a wristband attesting to the fact.  There were about 16 clerks at work, but it still was about an hour-long wait. 

It struck me that the NFL could have come up with a much better process.  Why not have people with Internet access (about everyone, since almost 98% seemed to be there with tickets they bought on the internet) print out the waiver and bring it with them already filled out?  The manager on-site claimed that Arizona state law and the Arizona AG required that the process proceed the way it did.  I give that explanation about a 50-50 between being correct and just covering their butt for something stupid.

Anyway, once signed, we had a good time at the event, and it was well worth the effort.

More absurd legal theories from the RIAA:

[I]n
an unusual case in which an Arizona recipient of an RIAA letter has
fought back in court rather than write a check to avoid hefty legal
fees, the industry is taking its argument against music sharing one
step further: In legal documents in its federal case against Jeffrey
Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000
music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry’s lawyer in the case, Ira Schwartz, argues in a brief
filed earlier this month that the MP3 files Howell made on his computer
from legally bought CDs are "unauthorized copies" of copyrighted
recordings.

"I couldn’t believe it when I read that," says Ray Beckerman, a New
York lawyer who represents six clients who have been sued by the RIAA.
"The basic principle in the law is that you have to distribute actual
physical copies to be guilty of violating copyright. But recently, the
industry has been going around saying that even a personal copy on your
computer is a violation."

In the earlier days of this blog, I used to post links to a lot of insane lawsuits.  The lawsuits just keep coming, but I have lost the energy to keep posting such stupidity.  And besides, Overlawyered does such a good job and seems to have infinite patience. 

But it was worth noting a silly shareholder suit that the media actually seems to have sniffed out for what it is:  Pure garbage.  For those who are not aware, there are a group of law firms who immediately file suit against any company whose stock drops by more than a few percent.  Bill Lerach, soon to be taking up residence in jail, used to keep a whole bullpen of folks on a sort of retainer to hold shares in numerous companies, so he instantly had someone close at hand who could file suit when any stock drops.  And since stocks go up and down, often in ways that the company itself has no control over, this leads to a lot of lawsuits.

Recently, the maker of Crocs sandles apparently had an IPO, had its stock price shoot up, and then had its stock price fall back when the company could not sustain its previous torrid growth pace.  Al Lewis of the Denver Post takes it from there:  (HT Overlawyered, of course)

Anybody who purchased stock in
Niwot-based Crocs Inc. between July 27 and Oct. 31 should not join the
class-action shareholders lawsuit that was recently filed against the
company and its stock-dumping executives.

Instead, they should look themselves in the mirror and admit two things:

      

I look ridiculous in these plastic shoes.

      

Anybody
who would pay an average of more than $60 a share for a company that
makes ugly plastic shoes deserves to take a hit in the stock market.

He continues:

Crocs and its officers also allegedly
misrepresented or failed to disclose their distribution problems in
Europe and their rising inventory levels, the lawsuit alleges. They
also failed to disclose that sales of their hole-riddled plastic clogs
were suddenly becoming more of a seasonal item. Imagine that! Sandals
seasonal? Who knew?

By the way, if you really want your head to explode, take a minute a think about shareholder lawsuits.  A group of shareholders are suing the company for a fall in the stock price.  Who do you think pays?  Why, current shareholders!  Though I do not accept the "logic" of these suits, if one were to accept their logic, then the most guilty party is the stockholder who sold the plaintiffs their stock just before the drop.  But these folks are exactly who will NOT owe any money on the suit.  They are no longer owners.  The people who will pay will be the owners of the stock at whatever time the suit settles, likely many people who bought in after the plaintiffs did.  The only real winner when the shareholders pay themselves such a verdict are the lawyers, who rake off 30%.  More on this bizarre situation here.

Update:  I will have to think about this more, but it kind of reminds me of a prisoners dilemma game in which the prosecutor gets a monetary bonus that increases with longer prison terms.

It’s been a while since I posted any tort pr0n, so here are a couple of juicy onces:

From West Virginia:

Joe Meadows was drunk. Very drunk. 0.296 percent blood-alcohol content
drunk, 12 or 13 beers worth. Fortunately, he didn’t drive in that
state. Unfortunately, he chose to sleep it off by resting under a
parked 18-wheel truck. More unfortunately, the driver, Doug Rader, who
didn’t check to see whether there might be drunks lying under his truck
at 1:40 a.m., ran over Meadows. Rader had EMT training, and was able to
save Meadows’s life, but Meadows lost a leg, and sued both the truck
company and the store that owned the parking lot. A Kanawha County jury
decided that Meadows was only a third responsible for his injury, which
means he "only" gets two thirds of the three million dollars they
awarded.

And from Florida:

"A police officer has sued the family of a 1-year-old boy who nearly
drowned because she slipped and injured a knee responding to their
9-1-1 rescue call." Andrea Eichhorn, a police sergeant in Casselberry,
Florida, responded to the pool accident, and now "claims the boy’s
family left a puddle of water on the floor, causing her fall during the
rescue efforts. She broke her knee and missed two months of work." So
she’s suing the Cosmillo family. "It’s a situation where the Cosmillos
have caused these problems, brought them on themselves, then tried to
play the victim," says her attorney, David Heil. Joey Cosmillo, the
infant in question, suffered severe brain damage and lives in a nursing
home now.

West Virginia and Florida — who’d have thought it?

This may be my new favorite tort:  (via Overlawyered)

A Pennsylvania man has sued search giant Google
for $5 billion, claiming that when his Social Security number is turned
upside down, "it is a scrambled code that does spell the name Google."
The handwritten complaint filed in the U.S. District Court in Scranton
alleges that the U.S. Justice Department "is heading the investigation
into allegations of crimes against Humanity" involving Google’s
founders and that the plaintiff’s "safety is in jepordy."

Up next, the owner of Social Security number 71077345 sues Shell Oil for the same reason.

Unfortunately, in other tort news, this is not a laughing matter.  It is just plain stupid AG megalomania:

For a while now, lawyers in Minnesota, Oklahoma and elsewhere have been suing companies that make over-the-counter cold remedies containing ephedrine and pseudoephedrine on the grounds that they were aware
some buyers were using the drugs as raw material for illegal
methamphetamine labs. Now such litigation appears to be gaining
momentum in Arkansas, where many county governments have signed up to
sue Johnson & Johnson, Pfizer, and other companies. "If successful,
it could open up litigation against manufacturers of other produce used
in making meth, such as drain cleaners and acetone."

One local judge discusses the case in a way that sounds like a commercial for the Publishers Clearing House Sweepstakes:

"What more could we have done with a million dollars a year for our
county? Would that have meant a half dozen more police officers? Would
that have meant a better solid waste program? Who knows, what could
your county have done with an extra million dollars," asked Judge Bill
Hicks of Independence County, a backer of the suits.

Chris Horner reports that the next mass-state-AG-tort, modeled after their fairly succesful efforts against tobacco companies, will be against oil companies over global warming:

A little birdie recently chirped about some
usual-suspect state attorneys general preparing a litigation strategy
document for/with environmental pressure groups, providing a roadmap
for cooperatively replicating the tobacco litigation of a decade ago in
the "global warming" context, substituting that projected catastrophe
for cancer and "big energy" for tobacco companies.

The point of
such exercise would not be to litigate the matter to conclusion — ever
more challenging what with forced corrections of the temperature
record, recent exposure of the woeful reliability of our own world’s
most reliable surface measuring network, and of course no global
warming in a decade (or, we now know, since 1900 for that matter) — but
to extract massive settlements from the energy industry to further fund
the trial lawyers, greens and the greens’ pet projects. Just imagine
the anti-energy campaign that this model would yield! And at no cost,
really, except to anyone who uses energy and/or invests in these sleepy
"granny stocks". Oh, and the economy.

He goes on to include a copy of the memo making the rounds of the AG offices.   This will certainly be a circus, and generally an expensive time-waster that will just serve to line the pockets of tort lawyers and the politically connected.  If things turn out like the tobacco settlement, the oil companies may jump on board early, since the tobacco settlement has turned into a state-enforced oligopoly for the major tobacco companies.  On the bright side, this might be an opportunity to subpoena the details of a bunch of climate work that is currently kept secret.

Via Overlawyered:

Score another one for personal responsibility: 29-year old St. Louis
Cardinals pitcher Josh Hancock killed himself in April when he drove –
faster than the speed limit, drunk, on a cell phone, and not wearing a
seat belt — into a tow truck stopped on the side of a road. Obviously,
we ought to blame… everyone except Josh Hancock for this. Three and a
half weeks after the accident, his father has filed suit
in St. Louis against: the restaurant where Hancock was drinking, the
manager of the restaurant, the tow truck driver, the towing company,
and (!) the driver of the stalled vehicle that the tow truck was
assisting, for having the temerity to get his car stuck on the side of
the road.

So far, he hasn’t sued the Cardinals or Major League Baseball, but, while praising the team, his lawyer pointedly refused to rule out suing them.

Absolutely hilarious interaction between TJIC and an attorney looking for class actions in all the wrong places.  Extra marks for gratuitous Conan reference. 

And while we are on the subject of class actions, note this case in Overlawyered  where the class itself received a sum total (not average per person, but cumulative total) of $2,402 while their lawyers received $1,000,000.  Once a useful tool for redressing fraudulent behavior, class actions now have become primarily either 1) a profit-making-through-extortion tool for lawyers or 2) a way to legislate without actually going to the legislature.