Lawsuit Abuse Fortnightly #4-3

Published March 15, 2005

Carmel Fire Belles Get Hosed

Carmel city officials looked the other way when 12 women ranging in age from 51 to 84 posed nearly naked for a calendar to raise money for the California city–but not because of the cellulite on display.

Officials concede the women, who call themselves the Carmel Fire Belles, meant well. Concerned about the cash-strapped city government’s $2.2 million deficit, they wanted to raise money to help the city retrofit its fire station with earthquake-proof construction. So all 12 of them, one for each month, posed for the calendar, mostly nude but covered in strategic places by fire helmets, fire axes, and other fire equipment. Sales were brisk last year, raising $40,000 in a few months, and the calendars were still selling this year.

But the city rejected the money, citing fear of sexual harassment lawsuits. The calendar photos were shot in part on city property, using city equipment. If the calendar were posted in the city workplace, the city attorney reasoned, someone might take offense and sue the city for sexual harassment. “It’s all in good fun if you hang something like this at home,” City Administrator Rich Guillen told the Monterey County Herald, but city policy bans public displays of sexually suggestive materials. “Someone could say there is a nexus, that you sanctioned the calendar. Someone could see that as supporting sexual harassment,” he said.

“Gosh! It’s for the good of the community,” Paula Weber, the oldest calendar Belle at 84, told the Los Angeles Times. “It’s such a blow.” From the Los Angeles Times and Monterey County Herald

No Good Deed Goes Unpunished

Two teenage girls who skipped a school dance so they could stay home and make cookies to surprise their neighbors instead got a surprise themselves: a lawsuit.

The suit was brought by a neighbor who suffered an anxiety attack in response to a late-night knock on the door by the girls and was treated at a hospital the next day. “This isn’t about cookies,” the woman told ABC’s “Good Morning America” program. “It’s not about a couple of girls out spreading cheer. It’s about a horrible experience for me and my family.”

The woman explained the knock on the door of her secluded house came at 10:30 p.m. “They banged on the door so hard, we were certain someone was trying to break in,” the woman said.

She was awarded $890. From ABC News.

Curse the Law, Anyway!

An Illinois appellate court ruled a corporation engages in “publication,” for purposes of a cause of action for defamation, by circulating a memo about an employee’s negative performance review to the employee’s superiors within the company.

In 1999, the employee received a less-than-positive review from his immediate supervisor. The supervisor testified that, in response, the employee used profanity during the review. That conduct, and other statements allegedly made by the employee outside of the review, were summarized in a memo to the supervisor’s supervisor and the company’s human resources department. This led to his firing. The employee brought a defamation action against the company.

To prevail in a defamation case, the plaintiff must prove the defendant made a false statement about the plaintiff; that this statement was “published” to a third- party; and that the plaintiff was thereby damaged.

Factually, the trial came down to a swearing contest. The employee’s boss testified the employee had used profanity during his performance review, but the employee denied he did so.

Faced with a factual standoff, the company argued Illinois should adopt a rule, which prevails in some other states, that assumes for the sake of argument that material communicated within the company was defamatory but bars a defamation suit because the corporation is “merely ‘communicating’ with itself.”

The appellate court declined to adopt the rule, deciding, “the sending of the termination memo satisfied the element of publication here.” From Popko v. Continental Casualty Company

Up Close and Personal

The January 2005 edition of the Fulton County (Georgia) Daily Report features an in-depth look at a four-year malpractice case against an orthopedic surgeon, who says he felt “like a poster child for the litigation crisis in this country.” It is well worth reading in full. A few standout points are noteworthy.

The first is what the surgeon, Stephen McCollam, calls “an out-of-body experience.” During a break in the two-week trial, the plaintiff’s lawyer, who had constantly called into question McCollam’s competence and truthfulness, approached McCollam in the hallway outside the courtroom for some free medical advice. McCollam told the Daily Report, “how many lawyers have asked the doctors they’re suing in a court of law for offhand kind of low-key medical advice, and how many doctors actually give it?”

The second is video surveillance of the plaintiff. She claimed to be unable to use her left hand as a result of shoulder surgery botched by McCollam. In court, she demonstrated her hand’s weakness by dropping soft drink bottles of varying weights. But on the videotape, shot without her knowledge over a two-day period, she was shown using that hand to drive her car, open and close the car door, and carry items from her shopping trips. From the Fulton County Daily Report at

McDonald’s Case Back on the Burner

The Second Circuit Court of Appeals in New York has reinstated a lawsuit against McDonald’s Corporation that had been tossed out by the trial court.

Plaintiffs allege McDonald’s engaged in deceptive practices, creating the false impression its food was healthy. The plaintiffs, who allegedly ate at the restaurant between three and five times a week, claim they have suffered “obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects.”

In dismissing the case, the trial court judge said the allegations were insufficient because, among other reasons, they failed to address certain questions: “What else did the plaintiffs eat? How much did they exercise? Is there a family history of the diseases which are alleged to have been caused by McDonald’s products? Without this additional information, McDonald’s does not have sufficient information to determine if its foods are the cause of plaintiffs’ obesity, or if instead McDonald’s foods are only a contributing factor.”

The appeals court, however, ruled the allegations were adequate to put McDonald’s on notice of the claim against it and that the trial court’s questions could be explored during depositions of the plaintiffs and other discovery techniques. From Pelman v. McDonald’s Corporation

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984. The full text of this newsletter is also available in Adobe Acrobat’s PDF format; click here
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Publisher: Joseph L. Bast
Editors: Maureen Martin, Diane Carol Bast

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