Tort Reform

* Having your cake — and screwing it, too? [Overlawyered]
* If your cake contains trans fats, Judge Posner — who’s rumored to enjoy grapefruit for dessert — will take it away from you, and dump it in the trash. [Becker-Posner Blog]
* Marty Lipton’s theory of executive compensation: “I make tons of money, and I’m just the hired help. So client CEOs should make even more!” [Reuters]
* Chief Justice John Roberts: the boy who cried “constitutional crisis”? [Slate via How Appealing]
* This is lame. If everyone’s a name partner, then no one’s a name partner. [WSJ Law Blog]
* We suspect that the percentage of bad bosses is higher in the legal profession. Lawyers aren’t trained to be managers. And suck at it. [Workplace Prof Blog]
* The New York Court of Appeals: some tricky picking for Eliot Spitzer. [Judicial Reports]
* It’s about time that we had a litigatrix in the White House! [New York Times]

We recently asked for your views on Ward v. Arm & Hammer, the civil action brought by a pro se prisoner against a leading baking soda manufacturer. If you don’t remember what the case was about, here’s the caption:
pro se Ward 0.JPG
The District Court didn’t think highly of the case. And neither did you:
atl poll results ward arm hammer.JPG
One additional interesting point, made by David Giacalone of Shlep: the Self-Help Law ExPress:

“Thanks to Ted Frank’s coverage, I learned that 28 U.S.C. 1915, the federal law covering prisoners seeking to file a case as a poor person, does not prevent a legally frivolous suit from being appealed in forma pauperis, unless the district court judge certifies that the appeal is not being taken in good faith, or the prisoner has had three prior suits that failed to state a valid claim, or were found to be frivolous or malicious.”

So even if you thought Ward was “the most frivolous lawsuit ever,” it’s hard to fault Judge Chesler for permitting an in forma pauperis appeal to the Third Circuit, given the applicable law.
Pro Se Recycling Goes Over and Above [Shlep: the Self-Help Law ExPress]
Because we all love wacky pro se suits: Ward v. Arm & Hammer [Overlawyered]
Earlier: Ward v. Arm & Hammer: What Do You Think?
The Fine Line Separating Pro Se Litigants, Plaintiffs’ Lawyers, and Law Professors

arm & hammer crack cocaine.jpegAs one of you has noted, our favorite pro se lawsuit, filed back in 2003, has already been decided.
Interested in seeing how the case was resolved? Check out the published opinion: Ward v. Arm & Hammer, 341 F.Supp.2d 499 (2004).
Ted Frank has the link, plus commentary. Click here to satisfy your curiosity.
Because we all love wacky pro se suits: Ward v. Arm & Hammer [Overlawyered]
Earlier: Ward v. Arm & Hammer: What Do You Think?
The Fine Line Separating Pro Se Litigants, Plaintiffs’ Lawyers, and Law Professors

* Pity the petty, Tommy Bahama-wearing victims of the defectively long and narrow armrests of Metro-North commuter trains. [New York Times]
* Dr. Daniel goes to prison after lubing up the Beverly Hills ladies… in a bad way. [Los Angeles Times]
* Small firms are great and all, but can they afford the luxury of a Holiday Extravaganza in the cafeteria? [Build a Solo Practice, LLC]
* A crime against the Christmas spirit? No, just a mom charging her kid with petty larceny. [The Smoking Gun via CrimLaw]
* Remember that ninth-grade health ed presentation on the dangers of smoking, with the gross photos of cancerous lungs? That is when the statute of limitations should start running. (The SOL in trans-fat cases, because it’s only a matter of days now, should run the day you realize you can’t see your penis anymore.) [Point of Law]

* Thesauruses can still do the trick. Who knows if I would have passed AP English without one? On the other hand, one of the perks of public high schools is having your Cliffs Notes-cribbed essay graded by a teacher qualified only to teach woodshop and coach girls’ softball. [New York Times]
* What would the Supreme Court say about McDonald’s plans to patent its sandwich-making process? [CNN Legal Pad]
* Ah, law school flirting is just so cute. [Overheard in New York]
* While the poodles seem to be safe, babies, sadly, are not. [WCSH Portland]
* Blood money, in a way. Because someone killed my will to love. [Newsweek via Overlawyered]

breast implant breasts Above the Law.jpgLast Friday, something happened that made Walter Olson, the distinguished scholar and “intellectual guru of tort reform,” a very happy man:

“The government on Friday rescinded a 14-year ban on silicone gel implants for cosmetic breast enhancement, a decision praised by some for providing women with a better product but criticized by others who still question their safety. … After rigorous review, the [Food and Drug Administration] can offer a ‘reasonable assurance’ that silicone implants are ‘safe and effective,’ said Donna-Bea Tillman, director of the FDA Office of Device Evaluation.” (Ricardo Alonso-Zaldivar and Daniel Costello, Los Angeles Times, Nov. 18).

Silicone breast implants, available to consumers in most other countries, were driven from the market after a campaign of speculation and misinformation by trial lawyers and allied “consumer” groups, particularly Dr. Sidney Wolfe’s Public Citizen Health Research Group. The campaign resulted in billions in legal settlements over nonexistent autoimmune effects from the devices, none of which had to be repaid even after more careful scientific studies dispelled the early alarms.

We suspect Mr. Olson isn’t the only American male who was gladdened by this news.
FDA ends ban on silicone breast implants [Overlawyered]
F.D.A. Will Allow Breast Implants Made of Silicone [New York Times]
Memorable Quotes from Seinfeld (1990) [IMDb]

Shakira Above the Law Legal Tabloid Nude Pictures Naked Pictures Nude Pics Shakira Shakira Shakira.JPGIf we were counsel to MTV, we’d advise them to include a warning each time they play the mesmerizing music video for “Hips Don’t Lie.” As Shakira’s hips undulate hypnotically to the beat, a warning should scroll across the bottom of the screen: “Don’t try this at home.”
Why? A failure to warn could subject MTV to a wave of lawsuits. If the 15-year-old daughter of a plaintiff’s lawyer pulls her groin while trying to “get her Shakira on,” expect MTV and Shakira to get served the next day.
If you find this far-fetched, consider this wacky lawsuit:

A New Jersey woman who fell off a wet bar and injured herself while dancing in a “Shake-It-Like-Shakira” contest is suing the Manhattan bar that sponsored the shake-off.

Megan Zacher, 22, of Delanco, N.J fell inside Calico Jack’s Cantina on 42nd Street at Second Avenue on July 8, 2006. Her lawyer, Lawrence Simon, said the fall caused a torn ligament in her left knee and required surgery.

And what’s the plaintiff’s theory of liability?

[Zacher] has filed suit against Calico Jack’s Cantina, saying the bar “knew or should have known that the ‘Shake It Like Shakira’ promotion was dangerous and likely to lead to injury.”

We’re of two minds here. On the one hand, the plaintiff bears some of the responsibility: she may have been negligent (or drunk) herself, or at least assumed much of the risk. On the other hand, any reasonable barkeep “knew or should have known” it could be dangerous to let a bunch of drunken bridge-and-tunnel girls dance, on top of a wet and crowded bar, in a contest to imitate a talented terpsichorean.
Remember, dramshop owners: Coyote Ugly was only a movie.
Earlier: Previous Lawsuits of the Day (scroll down)
Those Hips May Not Be Judgment-Proof [TortsProf Blog]
Hips Don’t Lie For Injured Lady In Wet Bar Contest [WCBS - NY]
GAL $HAKES HER FIST AT HIP BAR [New York Post via WSJ Law Blog]
Shakira: Hips Don’t Like [YouTube (click through and enjoy now, before it gets yanked)]

apple pie.jpgThis is one sure way to cut down on frivolous litigation. The Code of Hammurabi could be pretty badass.
And how would the Code treat unjustified lawsuits alleging overly hot coffee? Here’s our guess:

If any one bring an accusation of negligence against makers of hot coffee, and does not prove what he has charged, he shall be forced to eat TEN fried McDonald’s apple pies, straight out of the fryer.

Yes, McDonald’s phased out the fried apple pie with the super-hot filling. But surely they had it in ancient Babylon, given their advanced civilization.
(And you can still find this delicacy at a few other restaurants. Check out the McDonald’s Fried Apple Pie Locator for an establishment near you.)
Loser Pays, Babylonian-Style [Point of Law]
Two more hot coffee lawsuit data points [Overlawyered]

* Senate approves broad new rules to try detainees. [New York Times; Bashman linkwrap]
* Senate House grandstands over Hewlett-Packard as most witnesses take Fifth; libertarians celebrate that time wasted is time not spent passing new appropriations. [New York Times; WaPo]
* Verizon Wireless piles on against H-P. [WSJ Law Blog]
* Observers suggest Supreme Court cases over abortion might be contentious. You think? [Legal Times]
* Dozen Iraqi journalists arrested under new law against criticism of government. See? They’re already following in our footsteps up to the Alien and Sedition Acts! [New York Times]
* Belgium rules sifting of bank data illegal. [WaPo]
* California court hearing testimony over how many angels can dance on the pinhead of an anesthesized Death Row inmate. [Bashman linkwrap]
* Louisiana appellate court strikes down med-mal damages cap for failure to index to inflation, providing another excuse for doctors not to return to post-Katrina New Orleans. [Point of Law]
* New York Times writes thumbsucker on the Pirro marriage. [New York Times]

dr evil pinky finger.jpgIt’s been kind of a slow week, what with the upcoming Labor Day holiday and all. So today’s Lawsuit of the Day — by the way, these “of the Day” features aren’t exactly daily, just whenever we feel like it — isn’t that ridiculous.
Here it is (via the New York Law Journal):

A medical student who injured his pinky horsing around in the snow and then sued a state hospital for malpractice has lost his case in the Court of Claims.

Judge S. Michael Nadel said David Kern could not establish a prima facie case of malpractice, in part because his own expert — a neurologist on the faculty of SUNY Downstate Medical Center in Brooklyn, where the claimant was studying — gave the court next to nothing to work with.

The weakness of plaintiff’s expert testimony was the biggest problem with the case. But this didn’t exactly help matters:

Mr. Kern admitted that he had taken part in a SUNY talent show just weeks after the injury–a videotape introduced by the defendant showed him playing the piano and singing a rendition of Lynyrd Skynyrd’s “Free Bird” at the show…

“Free Bird”? It’s all over. That’s a pretty challenging song. Remember when Bo Bice sang it on “American Idol”?
(Any Beverly Hills 90210 fans out there? This reminds us of the time that Brenda (Shannen Doherty) got into a car accident with the lady who claimed she got a serious case of whiplash. Brenda goes over to the lady’s house to apologize, and sees the lady aerobicizing in her living room — sans neck brace!!! That episode was classic…)
Hey look, don’t get us wrong; the main problem here was with plaintiff’s expert testimony. We’re not belittling all lawsuits over injured pinky fingers. After all, we’d be screwed without ours; we love the semicolon!
And don’t forget Dr. Evil. If you injured his pinky finger, the compensatory damages could amount to… 1 MILLION DOLLARS!!!
Claim Over Med Student’s Hurt Pinky Denied [New York Law Journal]

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