Tort Reform

InJustice: Tort Reform’s High Cost Documentary Infomercial

By Staci Zaretsky

In Above the Law’s last film review, we spoke about Hot Coffee, a documentary film about the evils of tort reform in America. The film, which received rave reviews from publications like the New York Times and the Washington Post, was produced by former trial lawyer Susan Saladoff.

Now, just two weeks later, InJustice, a documentary film that is being hailed as the “anti Hot Coffee,” made its small screen debut on the ReelzChannel — a channel I’d never heard of and do not receive. Luckily enough, in the two weeks since we reviewed Hot Coffee, I had earned enough street cred to get an advance copy of the film.

While Hot Coffee presented the plaintiff’s side of the tort reform debate, InJustice attempts to present the defendant’s side in a more favorable light by exposing the evils of lawsuit abuse and the greed of attorneys involved in “America’s lawsuit industry.” Those are some pretty high aspirations for the film’s producer, non-lawyer Brian Kelly.

All that being said, I have no idea why I waited to release my review of InJustice until after the film had aired, because I’m not sure if anyone was even able to watch it. And if they had been able to do so, I’m pretty sure they would have changed the channel pretty quickly….

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Hot Coffee: Spilling Our Way to the ‘Evils’ of Tort Reform

By Staci Zaretsky

You mean to tell me that this coffee is going to be hot? Are you kidding me?

Most people associate the Liebeck v. McDonald’s case, better known as “the hot coffee lawsuit,” with the very worst of our justice system: namely, frivolous actions brought by greedy plaintiffs with the hopes of winning the lawsuit lottery.

It is commonly believed that the plaintiff in Liebeck was a young woman who decided to sue Mickey D’s because while driving, she spilled her drive-thru coffee all over herself and sustained minor burns. This woman is usually not thought of as the sharpest tool in the shed, because she needed to be warned that her hot coffee would actually be hot and would burn her.

This woman was somehow able to convince a jury of her peers (who apparently weren’t that intelligent, either) that she didn’t realize her hot coffee would be so hot, so they decided to award her with a $2.7 million verdict.

This is the story that most people believe when they think of the hot coffee lawsuit, but it couldn’t be further from the truth. And thanks to this widespread misconception, Hot Coffee, a documentary film directed by Susan Saladoff, explains how corporations were able to promote the “evils” of tort reform….

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Is Anybody Else Sick of Disgruntled ‘Seatgate’ Super Bowl Fans?

By Elie Mystal

In case you haven’t been following along, the National Football League has been dealing with a little controversy from 1,250 fans who went to the Super Bowl. It’s been labeled “Seatgate.” These people bought tickets to the Super Bowl, but when they arrived in Dallas, their temporary seats were not completed. It appears that Super Bowl organizers knew there was a chance the seats would not be ready in time, but didn’t tell the fans. It turns out they had to watch the game in a standing-room area, on a television, or from different locations in the stadium.

The fans got screwed; no doubt about that. And, like an airline that bumps people because they oversold the plane, the NFL is trying to make it up to the fans. It’s not out of kindness; the NFL is just trying to mitigate the public-relations damage from Super Bowl ticket holders not having seats. So the NFL has offered the fans a number of “make good” options.

But the fans are not satisfied, and now there’s talk of lawsuits. Why? Because people are dumb and greedy and trying to milk their hardship for everything it’s worth.

To tell you the truth, I really want these super fans to go away already…

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Will the Great Blizzard of 2010 Lead to a Storm of Lawsuits?

By David Lat

Here in New York City, the headquarters of Above the Law, we’re still dealing with the aftermath of the Great Blizzard of 2010. Check out our slideshow for some images (like the one at right).

Although the snowstorm ended on Monday, and it’s now Wednesday night, many streets remain unplowed and many sidewalks uncleared. Mayor Michael Bloomberg, generally praised for his tremendous competence, is taking a lot of flak for the city’s inadequate response.

And that’s just in terms of politics and public relations. Wait until the lawyers get involved!

What possible causes of action could arise out of the snowstorm? Let’s discuss….

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Non-Sequiturs: 12.15.10

By David Lat

* Here’s a list of America’s Worst Bosses for 2010. Shocker: some of them are lawyers. [eBossWatch]

* Is this a legal and/or fair way to get a flaking eBay auction winner to pay up? Maybe all is fair in love and war e-commerce — although that approach didn’t work out well for Vitaly Borker. [Reddit via Consumerist]

* Remember the Syracuse Law satirical blog controversy? Well, now the administration is playing with FIRE. [Foundation for Individual Rights in Education]

* Filing a lawsuit against McDonald’s over Happy Meals makes me sad — and Walter Olson mad. (Disclosure: I once worked at McDonald’s.) [New York Daily News]

* Speaking of delicious things — and readers, please note my use of “delicious” to refer to food — how do you overcome the “cupcake challenge”? A panel of experts, including my law school classmate, Georgia state legislator Stacey Abrams, tackled this question in a panel discussion at the U.S. Chamber of Commerce. [The ChamberPost]

* Single D.C. lawyers, there’s still time to entrust your love life to Kashmir Hill. We have many responses, but there’s gender imbalance right now. Kash needs men — please help! [Above the Law]

Lawsuit of the Day: Woman Breaks Hand Trying to Wipe Bum

By Elie Mystal

I don’t remember the moment I first learned how to wipe my ass without hurting myself. I don’t think I received a special present or accolade for that momentous life event. But perhaps my parents did take notice in this way:

MOM: Our little boy just successfully wiped himself without incident!
DAD: Good. Maybe you were right when you prevented me from taking him out back and shooting him.

The point is that successfully using toilet paper is a basic skill in civilized society. If you have an accident while administering toilet paper to yourself, it’s the kind of thing you really want to keep to yourself.

Unless, of course, you think you can get money out of the mishap. America baby, the only place where hurting yourself while performing basic hygienic practices can lead to a tort payday.

A Michigan woman broke her hand while trying to get toilet paper out of a dispenser in a restaurant bathroom. And now the Michigan Supreme Court has ruled that her case can be presented to a jury….

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Bullying Shouldn’t Be A Crime, No Matter How Many Kids Kill Themselves Because of It

By Elie Mystal

This zone... does not exist.

They had to set the Karate Kid remake in China. If they had set it in modern-day America, Daniel-san would have been mercilessly bullied by the kids from Cobra Kai, he would have killed himself, and the rest of the movie would have been a courtroom drama where Daniel’s parents sought to bring the evil sensei to justice in the form of a multi-million dollar civil suit.

You see, American children apparently have become so fragile, and Americans parents so litigious, that schoolyard bullying is as likely to be settled in a court of law as it is behind a dumpster out back where boys used to handle their disagreements. I used to tell my mother that nobody ever died from embarrassment, but apparently I was wrong. The ABA Journal reports that there’s been a veritable outbreak of children committing suicide in Ohio because they were hounded by mean kids. And that story doesn’t even take into account the Tyler Clementi situation.

And when kids kill themselves, parents are increasingly turning to the courts to stand up to the bullies in a way that used to be accomplished via a flush crane-kick to the face.

It needs to stop. No, not the bullying — which is unavoidable when more than one male competes for whatever status/prestige/sex is on offer — but the tragic overreactions to the bullying, and the accompanying rush to the courthouse steps.

I say this not as an alpha-male with a caviler attitude towards the feelings of others. I say this as a former omega-male who got the crap beat out of me like I stole something from the age of 7 through the point I realized that no girl would ever mate with a guy who couldn’t basically stand up for himself….

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Elie on Fox Business: Do I Sound Republican to You?

By Elie Mystal

Yesterday, after whining about law schools on NPR, I motored over to the Fox headquarters on Sixth Avenue. They wanted me on to to talk about a post I did a couple of weeks ago, encouraging oil-spill victims to take their BP money from the $20 billion fund being administered by Ken Feinberg, instead of pursuing private lawsuits against BP. For the debate, they brought on a plaintiff’s lawyer.

I thought it was a good segment, and I do believe the BP fund will be better for the victims (and the justice system) than a slew of plaintiff’s lawyers jumping on BP — and taking a sizable cut out of whatever damages a judge (most likely) reduces.

But a commenter noted something that a few people have told me privately:

Ellie [sic], I think you are on the brink of finally embracing the fallacy of prudential regulation and the idea that government or semi-government programs are ever going to be able to take care of someone who refuses to take the most basic steps of self-preservation. I saw you on Fox News and I bet you vote Republican this November.

I don’t think I was accessing my inner elephant. But check out the clip and tell me what you think…

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Lawsuit of Fifteen Years Ago a Few Days Ago: Inanli v. Starbucks

By David Lat

Exciting news. Starbucks has just launched its new However-You-Want-It Frappuccino® product, “allowing customers to create a blended beverage that is uniquely their own…. the same way they customize their favorite Starbucks espresso beverage.”

Sounds delicious! But if you order your Frappuccino with extra ice, and then experience brain freeze, don’t turn around and sue Starbucks.

Or maybe do turn around and sue Starbucks? Even though lawsuits based on allegedly unreasonable beverage temperatures have become national jokes, memorialized in popular culture (e.g., Seinfeld episodes), they still keep getting filed — and, presumably, settled.

The latest lawsuit has been filed against Starbucks, for excessively hot tea….

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Judge to Mitigate Damages Out of Pity For Philip Morris Counsel

By Elie Mystal

Philip Morris logo.jpgA Florida state court judge, Jeffrey Streitfeld, has decided that the largest individual award to a former smoker is excessive. The Daily Business Review (gavel bang: ABA Journal) reports on the good news for tobacco peddler Philip Morris:

Calling the $300 million jury verdict “excessive” and “shocking,” Judge Jeffrey Streitfeld said he would determine a lower award later against tobacco giant Philip Morris USA. He gave no indication when he would rule.
The landmark verdict was reached in November for Cindy Naugle, an emphysema patient who quit smoking in 1993.

There are few things that bother me more than smokers blaming tobacco companies for becoming addicted to their products. Does Philip Morris sell an illegal product? No. Do you need to be galactically stupid to smoke yet not know that smoking is dangerous? Yes. So what is the rationale for suing a company that produces a legal product you’d have to be epically dumb to not know is potentially dangerous?
As a smoker, I feel particularly qualified to say: it’s not Philip Morris’s fault if I get sick. It’s my fault. I take personal responsibility for my own health choices.
Personal responsibility. Seems like a winning argument, doesn’t it? Well, it’s pretty much the argument pursued by Philip Morris’s lawyers. And … it horribly backfired.
Judge Streitfeld has decided to step in to correct the lawyers’ mistake.

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Do Baseball Bats Need Warning Labels?

By Elie Mystal

Louisville slugger aluminum.JPGAt first blush, the judgment awarded to the parents of a fallen baseball player is enough to make a tort reformer vomit. The Helena Independent Record reports (gavel bang: Overlawyered):

After 12 hours of deliberation, a jury sided with the parents of former Miles City American Legion baseball pitcher Brandon Patch in a civil suit over the player’s death during a 2003 game in Helena.

Aluminum bat maker Hillerich & Bradsby Co. failed to provide adequate warning as to the dangers of the bat used by a Helena Senators player during the game, at least eight of the 12 Lewis and Clark County jurors agreed Wednesday.

Hillerich & Bradsby Co. was ordered to pay $792,000 to Patch’s estate, which is represented by his mother, Debbie Patch, who filed the suit.

The jury felt the bat makers should have had some kind of warning about the dangers of batted balls at high speeds.
Seriously? On first blush, this verdict makes me want to hunt down jury members, scream “warning, terrible judgments could result in you getting hit with a bat,” and play pepper using their eyeballs.
But in my homicidal fantasy, I’m hitting eyeball grounders with a wooden bat, not an aluminum one. Are aluminum bats different, in a way that might partially explain the verdict?
More details after the jump.

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Lawsuit of the Day: Defective Underwear Causes Penis Pain

By Elie Mystal

Albert Freed penis pain.jpgLet’s get the boring stuff out of the way. Albert Freed (pictured) won a trip to Hawaii (not pictured). As part of the vacation celebration, Mrs. Freed bought her husband some new Hanes brand briefs. But Mr. Freed is a husky gentleman, and apparently the new trunks couldn’t contain all of his junk. He sued Hanes, claiming they made “defective” underwear.
Let me turn it over to Escambia County (FL) Judge Pat Kinsey:
Freed v Hanes 1.jpg
A question for the guys out there: How long would it take you to correct a problem involving sandpaper and your penis? Don’t you think penis chafing is something that requires immediate attention and decisive action?
And while we’re here, how long does it take for you to notice your stuff hanging out where it is not supposed to be?
Check out Albert’s excuse after the jump.

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Trial Lawyers Lobby in Trouble?

By Elie Mystal

American Association for Justice debt trial lawyers.JPGThe tort reformers among you are going to love this story. Just as it looks like there might be an opening to enact significant medical malpractice reform, it appears that one of the most powerful lobbying arms against reform is hemorrhaging money (gavel bang: Overlawyered). The Washington Times reports:

The American Association for Justice, the most prominent group representing plaintiffs’ attorneys, has seen a shake-up in its executive suite and has struggled to deal with what appears to be a mounting budget shortfall. To help it fight congressional efforts to make it harder for patients to sue doctors and lawyers, it recently sent out an extra solicitation to its members, asking them to fork over money for a lobbying campaign.
The most striking evidence of its financial woes is a swift decline in income, which resulted in a more than $6.2 million deficit in its operating budget for the fiscal year ending July 31, 2008, the most recent year for which data are available.

The reason for the shortfall appears to be fewer members. Details after the jump.

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Lawsuit of the Day: Don’t Lie About Brain Tumors

By Elie Mystal

Stupid lying plaintiff.jpgThe Connecticut Employment Law Blog reports on the kind of plaintiff that gives other plaintiffs a bad name:

In the middle of trial, a plaintiff (who is claiming his employment was terminated, among other reasons, in retaliation of his exercise of FMLA rights) drops a bombshell:

“[In the prior October], I learned that I had — have stage III prostate cancer with a metastatic brain lesion.”

What kind of client just blurts out “metastatic brain lesion” in open court? What kind of counsel allows that to happen?
Not surprisingly, defense counsel moved for a mistrial. The judge called a hearing, and then the idiot plaintiff had something else to say:

During the hearing, however, there’s another another unexpected development: The medical records show that the employee did not have (and never had) a metastatic brain lesion.

The plaintiff knew he didn’t have a brain lesion — though it seems self evident that something upstairs is not working properly in this guy’s head.
Is this a situation that demands more than a mistrial?

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Lawsuit of the Day: Model Files Suit Over Super-Sexy Spot
(No, Not That Spot. Jeez. You’re Such a Sicko.)

By David Lat

Szul Jewelry web ad orgasm cunnilingus Above the Law blog.jpgWe weren’t surprised to see this case get a shout-out on I Am Lawsuit Abuse. From the AP:

A model who says she has worked hard to maintain a wholesome image has filed a $5 million lawsuit complaining that a jewelry company’s video advertisement in which she writhes and moans looks pornographic.

The commercial, seen on the Internet in a clip entitled “Rock Her World,” shows a woman wearing blue lacy lingerie and a diamond necklace while moaning and stroking her face and neck. It ends with the Web address for the jewelry company, Szul.com.

The 37-year-old woman claims in her lawsuit that she did not “consent to or authorize the use of her likeness, picture, image or name to simulate a female having an orgasm or otherwise experiencing sexual pleasure.”

Actually, we prefer the description of the New York Daily News:

The 35-second “Rock Her World” spot features the model rubbing her teal teddy and purring with pleasure to the hard-grinding sounds of a guitar as the slogan, “Jewelry works every time” pops up onscreen.

But look, no need to rely on print descriptions of the ad. One of the beauties of the internet as a medium is that, when it comes to audio or video, you can judge for yourself. So check out the clip — which, we warn you, is quasi-NSFW (at least with the sound turned on) — over at Blogonaut.
Done watching? Okay. We concur with our fellow blogger:

[W]e find it hard to believe that Jane Doe’s behavior on the ad could be taken for anything resembling the “wholesome” persona she claims was maligned. What could she have been thinking when she made the ad?

Indeed. What exactly did she think she was advertising when she consented to be filmed, clad in pastel lingerie, writhing on a bed? Anti-epilepsy drugs?
Anyway, casting directors, consider yourselves warned. If the woman from the Szul Jewelry ad shows up for your casting call, don’t even think of using her in that Herbal Essences ad.
Oh, and the “I’ll have what she’s having” scene from When Harry Met Sally? NOT FUNNY.
Update: Ted Frank has written about the case at Overlawyered. We like the title of his post, as well as this quip: “And, of course, she didn’t have to roll around on the bed in the first place.”
But he notes, in fairness, that the model-plaintiff is claiming no release (hehe). That might be a legitimate basis for a lawsuit.
Model’s suit: You used the video you took of me [Overlawyered]
NY Model Sues Jewelry Co for $5M Over R-Rated Web Ad [Blogonaut]
Model sues Szul Jewelry over Web ad [New York Daily News]
NY Lawsuit: My Commercial Looks Lewd [Associated Press]
Rock Her World [YouTube (mildly NSFW)]

Morning Docket: 11.27.07

By Billy Merck

* Apparently the President of the United States is somehow involved in the judicial nomination process. [The Weekly Standard via How Appealing]
* Too much litigation? Blame all those conservative trial lawyers. [WSJ Law Blog]
* Vick’s state trial date will be set today. [Atlanta Journal-Constitution]
* Nevada tries to smoke out some justice. [Reno Gazette-Journal]
* How tough can you be on protestors at a free speech debate? [BBC]

Nationwide Layoff Watch: Roy Pearson

By David Lat

Roy Pearson Judge Roy L Pearson Abovethelaw Above the Law legal blog.jpgOkay, it’s not a “layoff,” since it’s not due to economic pressures. Rather, it’s due to his being a total asshat judicial record and temperament — and maybe a certain infamous lawsuit he filed.
From the Washington Post:

Roy L. Pearson Jr., whose $54 million lawsuit against a Northeast Washington dry-cleaning shop was rejected in court, is about to lose his job as an administrative law judge, sources said last night.

A city commission voted yesterday against reappointing Pearson to the bench of the Office of Administrative Hearings, which hears cases involving various D.C. boards and agencies. Pearson, who was up for a 10-year term, had tried to hold on to the job.

Expect the litigious Pearson to fight any refusal to reappoint him:

If the panel carries out its decision against reappointing him, Pearson, 57, could take the case to the D.C. Court of Appeals. In a separate filing, he is asking the appellate court to overturn the decision in the dry-cleaning case.

The sources said that had Pearson’s term not ended this May, at the height of his battle with the dry cleaners, he might have kept the job. His term has expired, but Pearson has remained on the payroll, making $100,000 a year as an attorney adviser for the Office of Administrative Hearings.

Judge Set to Lose Job, Sources Say [Washington Post]

Are You There God? Yes, I Am

By David Lat

Ernie Chambers Omaha Nebraska senator suing God Above the Law blog.jpgTime for a quick update on a recent Lawsuit of the Day — the case filed by Nebraska state senator Ernie Chambers, against God. Yes, God.
From the AP (via TaxProf Blog):

A legislator who filed a lawsuit against God has gotten something he might not have expected: a response.

One of two court filings from “God” came Wednesday under otherworldly circumstances, according to John Friend, clerk of the Douglas County District Court in Omaha.

“This one miraculously appeared on the counter. It just all of a sudden was here — poof!” Friend said.

Or maybe the court clerks didn’t notice when it was dropped off, since they were too busy gabbing about why Tyra picked a chick with Asperger’s for America’s Next Top Model.
More after the jump.

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Lawsuit of the Day: Are You There God?

By David Lat

Ernie Chambers Omaha Nebraska senator suing God Above the Law blog.jpgIt’s me, Ernie — Nebraska state senator Ernie Chambers. And I’m suing your divine ass! From the AP:

The defendant in a state senator’s lawsuit is accused of causing untold death and horror and threatening to cause more still. He can be sued in Douglas County, the legislator claims, because He’s everywhere.

State Sen. Ernie Chambers sued God last week. Angered by another lawsuit he considers frivolous, Chambers says he’s trying to make the point that anybody can file a lawsuit against anybody.

Chambers says in his lawsuit that God has made terroristic threats against the senator and his constituents, inspired fear and caused “widespread death, destruction and terrorization of millions upon millions of the Earth’s inhabitants.”

And he pledged allegiance to Al-Qaeda, and microwaved a few pooches. Jonathan Lee Riches, holla!
What relief is Chambers seeking? The WSJ Law Blog reports:

The lawsuit seeks a permanent injunction against God, ordering him to cease certain harmful activities. Chambers asked the court to waive personal-service requirement. Because God is omniscient, he argues, he will have actual knowledge of the action.

And you thought the $54 million pants lawsuit was crazy. If God’s deposition ends up being taken, can someone ask him about the proper construction of this contractual provision?
P.S. Props to the AP reporter who conferred a Jesus-like halo upon Senator Chambers. You win the prize for Most Creative Use of an Electric Fan as a Background Element.
[AP via WSJ Law Blog]

Weird Al Song Becomes Tort Reform Anthem

By Billy Merck

From the National Examiner:

The American Tort Reform Association has posted Weird Al’s “I’ll Sue Ya” on its Web site, suggesting that the tune be “adopted as a theme song by America’s personal injury lawyers.”
“It’s been awhile since I’ve personally kept up with Weird Al’s work, but it’s nice to know he hasn’t lost his genius,” ATRA director of communications Darren McKinney said.
“Like all good comedy, Weird Al builds on a foundation of truth,” he added.

What foundation of truth, that there are too many lawsuits in this country, or that Korn sucks?
Check out the music video for Weird Al’s tune after the jump.
Related:
American Tort Reform Association
“Weird Al” Yankovic

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