Lawsuit Abuse Fortnightly #9-8

Published April 12, 2010

Keeping the Change

Prison inmates in Wisconsin have a constitutional right to receive sex-change drugs while jailed, a federal judge in Milwaukee ruled recently.

Wisconsin lawmakers had passed a statute banning administration of such drugs to prisoners, but the judge ruled the law constitutes cruel and unusual punishment and violates the prisoners’ rights to equal protection. The law amounts to “deliberate indifference to the plaintiffs’ serious medical needs in violation of the Eighth Amendment,” the judge ruled.

The case was brought by the American Civil Liberties Union on behalf of three prisoners. “We’re very excited” about the ruling, an ACLU lawyer said, evidently not tongue-in-cheek. The ruling paves the way for taxpayer funding of sex change operations, he noted.

Two of the sponsors of the law banning prison doctors from administering such drugs said they hope the state will appeal the decision, which the state is considering. One sponsor, Rep. Scott Suder (R-Abbotsford), called the ruling “a travesty of justice” that “puts a higher priority on helping inmate Tommy become Tammy than protecting the pocketbooks of law-abiding citizens.”

Source: Bruce Vielmetti, “Sex-change drugs a right, judge says, State law limiting inmates overruled,” Milwaukee Journal Sentinel, April 1, 2010

To Be or Not to Be

Sperm from a sperm bank is not a “product,” and the sperm bank cannot be sued for product liability for sperm later shown to be defective, the U.S. Court of Appeals for the Third Circuit ruled recently.

The case was brought by a mother and daughter because the daughter has a genetic mutation resulting from donated sperm that included a genetic defect that can cause mental retardation and behavioral disorders.

The court dismissed the case. It amounts to one for “wrongful life,” the court ruled. “Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence,” the court ruled. “This comparison the law is not equipped to make.”

The court quoted another case, holding, “Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.”

Source: Shannon P. Duffy, “3rd Circuit: Defective Sperm Can’t Be Basis for Products Liability Suit,” The Legal Intelligencer, April 6, 2010

Plate Debate

A University of Michigan grad is suing the state for revoking his personalized license plate backing the Michigan Wolverines.

The plate displays the distinctive Michigan “M” followed by “W-L-V-R-N-E.” The problem is, it duplicated one already issued to someone else, the state said. The man, who’s a lawyer, was not satisfied with this explanation, so he’s suing to get the license plate back. He claims the state violated his constitutional rights.

Source: Associated Press, “Lawyer turns license-plate dispute into lawsuit,” April 6, 2010

Do Drop In

Dogs are welcome in PetSmart stores, and as a result PetSmart says accidents are inevitable. But a human customer is suing after he slipped on a Number Two deposit on the floor of a PetSmart store.

The man, 69, claims he hurt his back and that four of his false teeth were knocked out. He claims he couldn’t see the dog feces because they blended with the color of the store’s floor. He wants $1 million in damages.

Source: “Man Sues PetSmart After Unfortunate Accident,” VERTEXNews/Newsroom Solutions, April 1, 2010

Praise the Lord and Pass the Weed

Two Ontario men charged with violating Canadian drug laws banning marijuana trafficking are defending themselves on grounds of religious freedom.

They claim their religion involves smoking weed, which their Church of the Universe calls “the tree of life.”

“I used to be very angry,” one church member-defendant told the court. “It is a high. But it is not just recreational. It’s like a connection to God.”

“Cannabis consumption, although joyous, is not an end in itself but rather it is an important part of the road to greater understanding of God and the universe,” the men’s lawyers told the court. “If everybody consumed cannabis, the world would be a more peaceful, respectful, joyous, and spiritually curious place.”

The church has 4,000 members. The trial, now underway, is expected to take four weeks.

Source: Shannon Kari, “‘Church of the Universe’ members argue pot laws violate religious rights,” The National Post (Ontario), April 7, 2010 via Jonathan Turley

No Can Do

A portable toilet company cannot use “Here’s Johnny” as a corporate slogan because the trademark rights to this phrase belong to the estate of Johnny Carson, a trademark panel recently ruled. The phrase was used by Ed McMahon to introduce Carson on his late-night television show.

The owner of the company,, tried to use the slogan about 40 years ago, but a federal court stopped its use by an injunction issued in 1977. The toilet company tried to use it again after Carson’s death in 2005. Carson’s foundation sued to stop it again, and a trademark board ruled the 1977 injunction was still in effect.

Source: Jeff Gorman, “Toilet Company Can’t Use ‘Here’s Johnny’ Slogan,” Courthouse News Service, April 6, 2010 via

‘Yes’ Means ‘No’

Duke University varsity athletes can be charged with unintentional rape even if they have consensual sex with a consenting partner, according to the new “sexual misconduct” policy at the university. The Foundation for Individual Rights in Education (FIRE) warns of that likelihood because the university policy states a person perceived as “powerful” may “create an unintentional atmosphere of coercion” even if the partner says “Yes.”

FIRE is challenging the policy. “[T]his policy effectively trivializes real sexual misconduct, which is a gravely serious crime,” the organization stated.

Source: Joanne Jacobs, “No sex for Duke Devils,”, April 7, 2010 via

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984.
Phone 312/377-4000, fax 312/377-5000
Back issues are available online at
Publisher: Joseph L. Bast
Author: Maureen Martin
Editors: S.T. Karnick, Diane Carol Bast

Information on lawsuit abuse can be found on these Web sites:

The Heartland Institute
19 South La Salle Street #903
Chicago, Illinois 60603