Lawsuit Abuse Fortnightly #1-8

Published August 31, 2002

Udder Madness

Reversing a lower court decision, the Wyoming Supreme Court ruled in July after three vehicles consecutively hit a Black Angus cow wandering on a state highway, the only person who could be sued for the two deaths that occurred in car #3 was the driver of car #2, who had reportedly sent her son to warn oncoming cars of the cow. Completely cleared of liability by both courts was Two Dot Ranch, the owner of the cow. Noting the cow was roaming in an “open-range” area, the state Supreme Court ruled holding the ranch liable would mean “Livestock owners would no longer be able to graze their livestock without being exposed to liability based on the limited intellect and behavioral vagaries of the animals they raise.” Okay, but why would the driver of car #2 be considered liable? From the National Law Journal

Maybe They Should Re-file the Suit in Wyoming

Always a creative bunch, a group of four plaintiffs’ law firms sought to use the “bounty hunter” provision of a 1980 amendment to the federal Medicare statute to achieve a double recovery from tobacco companies. The firms claimed the provision allowed them to sue the industry to recover double any amount expended by the Medicare program for the treatment of smoking-related diseases. If the suit were successful, the government would be reimbursed for what it had spent and the “bounty” firms bringing the suit would get an equal amount. New York Federal Judge Jack Weinstein gave them an “A” for imagination but an “F” for law, and threw out their class action lawsuit. Shamefully, the federal government was a strong supporter of the law firms’ position. From the National Law Journal

Lawyer Barbie Loses Her Case

In late July the 9th U.S. Circuit Court of Appeals ruled “Barbie Girl,” a 1997 hit by the Danish pop group Aqua, did not “dilute” the trademark value of Mattel’s ever-popular Barbie doll. Mattel had argued the song, which included such lyrics as “I’m a blonde bimbo girl” and “Kiss me here, touch me there, hanky-panky,” tarnished the doll’s good name, and thus the trademark, with risqué lyrics inappropriate for young girls, the doll’s target market. The court ruled, in essence, that the song was social commentary on Barbie’s image and the cultural values she represents and stifling parody and satire would violate the First Amendment. From the National Law Journal

OK, What Do You call 300 Lawyers Anchored at the Bottom of the Sea?

A personal injury lawyer who is the new head of the Florida bar association is asking lawyers throughout the state to send in an extra $45 with their association dues to defray a $750,000 public relations campaign to improve the profession’s image in the state. He is also asking them to object loudly when others tell derogatory lawyer jokes. From the National Law Journal

Maybe He Should Have Sued Himself for Incompetence

A Philadelphia construction worker settled with his employer for $950,000 after he slipped on ice at a job site and broke his ankle. His assignment at the time of the accident was to spread rock salt on the ice to prevent workers from slipping and injuring themselves. From the National Law Journal

Bowler Strikes Gold, Facts Still Slippery

An elderly Pennsylvania woman who fell while bowling and broke her hip was awarded nearly $480,000 in a jury trial. She alleged that on her approach to the foul line she slipped on an oily substance the bowling alley had failed to clean up properly. The alley pointed out in its defense that the woman had put a powdery substance on the bottom of her shoes to help her slide even better. From the National Law Journal

From the State that Brought You Enron

Texas Attorney General John Cornyn is having a heck of a time getting anywhere with his multi-year ethics investigation into how five prominent Texas plaintiffs’ attorneys were selected to run the state’s tobacco litigation. The settlement in that case netted the so-called Tobacco Five a cool $3.3 billion. Cornyn believes the lawyers may have breached their fiduciary duties to a client – the state of Texas. He has affidavits from three other lawyers – including Joe Jamail, the so-called “King of Torts” – alleging former Texas AG Dan Morales told them each of the lawyers hired for the tobacco litigation would have to give $1 million to Morales’ campaign fund. Jamail and the other two turned him down. Morales denies it all, but attorneys for the Tobacco Five are seeking to delay the investigation until after the next election, when a new AG might be less interested in pursuing the case. From Texas Lawyer and Forbes

If They Try to Secede Again, Let’s Let Them Go

Mississippi has long been considered a “judicial hellhole” where out-of-state companies are routinely eviscerated by class-action litigation in plaintiff-friendly state courts. Now comes the proof. In the National Law Journal’s annual survey of the 50 winningest law firms in the United States, seven Mississippi plaintiffs’ firms made the list. Only Texas, with nearly 10 times Mississippi’s population, had more, and, according to the American Tort Reform Association, one of the Texas firms earned its ranking with a judgment obtained in a Mississippi court. The tort reformers also point out a named partner in one of the Mississippi firms is also chairman of the state’s House Judiciary Committee, where he consistently throttles any tort reform legislation.

Pray Your Kid Doesn’t Get Sick in Mississippi

Speaking of Mississippi, until recently Dr. Kirk Kooyer was the only pediatrician serving two of the state’s poorest counties. Since he arrived in 1994, infant mortality in one of the counties dropped by nearly two-thirds, leading the National Perinatal Association to honor him in 2000 with its Individual Recognition Award. He was also honored by lawsuits and an 85 percent increase in his malpractice insurance. Dr. Kooyer was forced to give up his practice and recently moved to North Dakota. From the Jackson, Mississippi Clarion-Ledger

One Reader’s Suggestion

Harvey Ledbetter, Ph.D., thinks candidates for office should advocate “a very modest cap on the awards for both lawyer’s fees and awards for the plaintiffs . . . allow juries to make the appropriate decisions as to punitive damage as they now do, and target any excess of award over the President’s cap to fund the shortages in demonstrably useful programs like Social Security, drug assistance for seniors, or for educational programs.” Lawyers would be hard-pressed to oppose a plan that would fund their Democratic allies’ favorite programs, and the plan would end the financial windfalls trial lawyers now receive. “Were I of an age to run, I think I could mount a very respectable campaign on such a position,” concludes Dr. Ledbetter. Does someone younger want to give it a try?

Published bi-weekly by The Heartland Institute, a nonprofit 501(c)3 organization founded in 1984. The full text of this two-page newsletter is also available in Adobe Acrobat’s PDF format; click here.
Publisher: Joseph L. Bast
Editors: Diane Carol Bast, Paul Fisher, Dan Hales

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