Coyote Blog

My company runs recreation areas, and from time-to-time customers try to file claims against our company for dangers that are inherent to being out in nature  (example:  "I was climbing a tree out in the forest and fell down and hurt myself.  Your company needs to pay my medical bills.")

As a result of these experiences, I laughed when I saw this from the Nelson Rocks Preserve, who run a private nature park.  Here is just part of their disclaimer:

The Preserve does not provide rangers or security personnel. The other people in the preserve, including other visitors, our employees,
agents, and guests, and anyone else who might sneak in, may be stupid,
reckless, or otherwise dangerous. They may be mentally ill, criminally
insane, drunk, using illegal drugs and/or armed with deadly weapons and
ready to use them. We aren't necessarily going to do anything about it.
We refuse to take responsibility.

If you climb, you may die or be seriously injured. This is true whether
you are experienced or not, trained or not, equipped or not, though
training and equipment may help. It's a fact, climbing is extremely
dangerous. If you don't like it, stay at home. You really shouldn't be
doing it anyway. We do not provide supervision or instruction. We are
not responsible for, and do not inspect or maintain, climbing anchors
(including bolts, pitons, slings, trees, etc.) As far as we know, any
of them can and will fail and send you plunging to your death. There
are countless tons of loose rock ready to be dislodged and fall on you
or someone else. There are any number of extremely and unusually
dangerous conditions existing on and around the rocks, and elsewhere on
the property. We may or may not know about any specific hazard, but
even if we do, don't expect us to try to warn you. You're on your own.

Rescue services are not provided by the Preserve, and may not be
available quickly or at all. Local rescue squads may not be equipped
for or trained in mountain rescue. If you are lucky enough to have
somebody try to rescue you or treat your injuries, they may be
incompetent or worse. This includes doctors and hospitals. We assume no
responsibility. Also, if you decide to participate in a rescue of some
other unfortunate, that's your choice. Don't do it unless you are
willing to assume all risks.

By entering the Preserve, you are agreeing that we owe you no duty of
care or any other duty. We promise you nothing. We do not and will not
even try to keep the premises safe for any purpose. The premises are
not safe for any purpose. This is no joke. We won't even try to warn
you about any dangerous or hazardous condition, whether we know about
it or not. If we do decide to warn you about something, that doesn't
mean we will try to warn you about anything else. If we do make an
effort to fix an unsafe condition, we may not try to correct any
others, and we may make matters worse! We and our employees or agents
may do things that are unwise and dangerous. Sorry, we're not
responsible. We may give you bad advice. Don't listen to us. In short,
ENTER AND USE THE PRESERVE AT YOUR OWN RISK. And have fun!

Hat tip: Overlawyered.

In my new novel, one of the elements of humor is added by a fictional law firm that has no sense of right and wrong but a very finely tuned sense for who has deep pockets.  Early readers of the book have accused me of exaggerating reality.  In fact, all the humorous cases in the book are based on real analogs.  Just check out this one via Overlawyered:

Katoria Lee refused a carjacker's command to surrender her car-keys in 2001, so
he shot her in the back. This, a Georgia state court jury decided, was the fault
of Wal-Mart, who owned the parking lot where the shooting occurred. Eric Deown
Riggins, 22, was caught within minutes, and is serving a 15-year sentence in
state prison for the crime.

Ted Frank has this update on Vioxx litigation, and it couldn't possibly be more depressing:

Take, for example, the last
case Merck lost, that of Leonel Garza in south Texas. Mr. Garza, who
was said by plaintiffs to have taken Vioxx for three weeks, was a
71-year-old overweight smoker, with high cholesterol, decades of heart
disease, and a history of a heart attack and a quadruple bypass, yet a
jury awarded his survivors $7 million in "compensatory" damages, and
punitive damages to boot

He goes on to recount the very reasonable suspicion that Garza may not have even taken Vioxx at all, as he never had a prescription and his doctor has denied that he passed Garza a series of free samples in little brown bottles.

So out of eleven cases that
have gone to trial or almost gone to trial, there is a reasonable
suspicion that plaintiffs faked Vioxx usage in as many as five of them.
How many more of the tens of thousands of pending plaintiffs have
similar flaws?

He concludes with this excellent point:

Perhaps appellate courts
will get around to correcting these travesties, but the plaintiffs' bar
is counting on enough bad verdicts to slip through the cracks to make
these cases profitable.

The equation of expected returns is certainly helped by the fact
that no one is even suggesting that presenting this sort of
questionable evidence is unethical, much less illegal. Drug safety is
important, but so are the health costs from vaccines and drugs not
marketed because of liability risks. If the judicial system cannot
police itself adequately, the question then becomes why we want to
entrust national drug safety policy to an elected judge and a handful
of randomly selected jurors in Starr County, Texas?

Props to Merck for fighting each and every case so far and resisting the mass tort pressure to start offering settlements to anyone who asks for one.

I was in the Peoples Republic of Santa Monica this weekend.  Yes, I'm glad I don't have to live there (but I paid $50 per night in hotel taxes -- wow!) but the beach is gorgeous and the weather usually good.  We were shopping down the 3rd Avenue outdoor mall and were in a fairly large (3 story) Borders Books store when we found there was no bathrooms for customers.  The manager told us that it was for liability reasons.

Liability?  Has it really gotten this bad, or is this just becoming the convenient excuse nowadays when any public service is not offered?  I did a search and found that Santa Monica is ruthless in going after ADA access issues, so my guess is that they could not bring their bathroom into compliance in this older building for the 0.1% of customers who were handicapped so they closed it for the other 99.9%.  My other guess is that it might have something to do with the huge homeless population in Santa Monica, perhaps with them having trouble barring access to them (the public restroom we finally found had a homeless man camped out in it).

Answer: Don't wear a helmet!(via Overlawyered)

Police refused to chase a thief who had stolen a moped because
the youth was not wearing a helmet, the victim said yesterday.

Max Foster, 18, said officers told him they feared being sued if
the thief fell off the moped and injured himself....

The Association of Chief Police Officers said: "There is no blanket ban on
calling off chases where a rider has no helmet, however most forces will adopt
similar stances."

A new study on medical malpractice decisions by Alexander Tabarrok and Amanda Agan of George Mason University was released last week.  A lot of the study is dedicated to countering some economically-ignorant canards (e.g. the charge that the recent rise in malpractice insurance is all due to price gouging and not due to malpractice awards).

The most interesting piece is where they compare malpractice awards to results of the independent medical review board rulings.

Our test finds that the tort system and review system do not correlate. Figure Five shows that
adverse actions per doctor in the medical review board system do not correlate with the number of medical malpractice cases per doctor in the tort system, nor do they correlate with the
average award per doctor....                               

In no case is the correlation large; in some
cases, it is actually slightly negative. What these results indicate is that the two systems
we have for determining malpractice, the tort
system and the medical review system, result 
in very different determinations of malpractice.
Surely, one of them is wrong!

The conclusion is one I think many neutral parties have suspected for quite a while:  The tort system is doubly broken:  Bad outcomes that truly are the result of malpractice often do not result in an award, while numerous tort awards go to people who are not the victim of any real malpractice.  Or to put it simply, people who are owed restitution aren't getting it and people who get money often shouldn't be owed anything.

The obvious result is a gross miscarriage of justice.  However, there is a second, less talked about result:  If the tort system is random, having no correlation to real doctor error or doctor quality, then it is impossible to charge doctors with risk-adjusted premiums.  In an efficient market, the worst doctors would pay the highest premiums and would get driven out of the market, just like bad drivers must change their behavior or face lifelong high auto premiums.  However, if tort awards are not correlated with bad behavior, as the study implies, then the system creates a huge moral hazard, with bad doctors underpaying for insurance and good doctors overpaying.  The result is that at best, good doctors will be driven out of the system at least as frequently as bad doctors.  At worst, good doctors, frustrated by the lack of justice in the system, will actually be more likely to leave the system than bad doctors.

Last week, Milberg-Weiss and two of its partners were formally charged with bribery and fraud surround their aggressive pursuit of class-action lawsuits, often against companies with falling share prices.  Walter Olson helps describe in detail what was going on, but the short answer is that the firm, as many of us suspected for years, appears to have been generating class action suits against large companies mainly for the benefit of itself and the legal fees generated.  A few months ago, I questioned shareholder suits and their fundamental logic when I was guestblogging at Overlawyered.

So I am happy that this particular rock is finally being turned over.  However, there are substantial problems on the prosecution side of this as well.  The Justice department is using the abusive Thompson Memo guidelines to go after Milberg-Weiss.  Larry Ribstein is concerned with the firm death penalty approach being taken here that was used to bring down Arthur Anderson.

Milberg is a different story. The case seems to be based on the
alleged misconduct of a couple of partners. If the partners did what
they are accused of, they should go down. Moreover, the firm will have
earned fees under questionable circumstances and should bear civil
consequences for that. But the criminal indictment casts a shadow on
the entire firm that it will have a hard time surviving, given the need
to establish its credibility for courts and institutional investors in
the highly competitive class action industry. Moreover, unlike AA, it's
not clear the indictment reveals a continuing public policy problem,
given the post-PSLRA reliance on unbribable plaintiffs.

We (and I) may not like Milberg's business. But the class action
part of it was one enabled by legal rules. The right way to deal with
the problems of this business is to change the rules, as I've argued
for securities class actions in my Fraud on a Noisy Market.
When we criminally condemn firms like Milberg because we don't like
their business, we set a precedent for other firms in controversial
lines of work -- e.g., Drexel Burnham.

More seriously, the power to criminalize a firm puts a potent tool
in the government's hands to get the firm to cooperate in sacrificing
the rights of criminal defendants. Here the cure seems patently worse
the disease. The questions are no less in Milberg than in KPMG just
because Milberg was in an unpopular line of work.

The government tactic de jour, as outlined in the Thompson memo, is to threaten a large company with extinction, telling them they might get off the hook but only if they agree to throw a number of their employees to the wolves.  These steps include the unbelievable step of forcing companies to waive attorney client privilege, including privilege between any company-paid attorney and any employee.  Does anyone doubt that if the company who employs you was given the choice of having the government prosecute them or you, who they would choose?  In this context, Arthur Anderson should be commended for not sacrificing its employees for its own survival.  KPMG survived, because it chose to roll over on its employees.  I commented on many of the problems with the AA takedown here, and on the dangers of the Thompson Memo here and here.  Tom Kirkendall is all over the story.

Via Overlawyered, one of my absolute favorite blogs, comes my favorite headline of the week, courtesy of KCRA in California:

Paraplegic Activist Leaps From Wheelchair, Runs From Police

That's classic.  Apparently, the person involved had defrauded numerous organizations with spurious ADA complaints under California's ridiculous sue-anyone-with-higher-net-worth-than-yours laws.

Police said Laura Lee Medley, who repeatedly filed claims and lawsuits
for noncompliance with the Americans with Disabilities Act, was a con
artist.

A San Bernardino County spokesman, David Wert, said
Medley had complained to police earlier that she was having medical
problems so she was taken to a hospital for treatment.

Wert said, "That's where the great miracle occurred."

Officers
said Medley, 35, leaped from her wheelchair and ran for freedom after
being placed under arrest by Las Vegas police. The barefoot woman was
caught after a brief pursuit.

According to authorities in
Southern California, Medley was never disabled but used her supposed
condition to file many medical claims and lawsuits. Her questionable
claims led to the arrest in Las Vegas.

The vast majority of my employees and many of my customers are over 60, so we try extra-hard to accommodate people with all kinds of disabilities.  That is why this type of fraud really burns me up.  Not once but twice we have killed incipient lawsuits when we have had customers who were claiming severe physical disabilities observed playing football or unloading a truck.  I have had one person I was interviewing for a job tell me that I had to hire him since he was disabled, because if I didn't choose him I would be discriminating against the handicapped (we chose a different candidate).

Update: More Unruh act silliness:

A Los Angeles psychologist who was denied a tote bag during a Mother's
Day giveaway at an Angel game is suing the baseball team, alleging sex
and age discrimination.

Michael Cohn's class-action claim in Orange County Superior Court
alleges that thousands of males and fans under 18 were "treated
unequally" at a "Family Sunday" promotion last May and are entitled to
$4,000 each in damages.

Vioxx went to 3 for 6 in jury verdicts today as Merck lost a case in Texas (WSJ $).  Merck got hit with $7 million in damages plus $25 million in punitive damages, presumably since Merck was so clearly at fault as to be considered to have acted recklessly.  With that in mind, consider a couple of facts in the case:  First, the plaintiff..

died of a heart attack after taking Vioxx for less than a month.

I know what you are thinking.  How, after less than a month of use (and maybe as little as a week), could any plaintiff prove their heart attack was from Vioxx?   I mean, out of the thousands of people who took Vioxx, some statistically were due for a heart attack even had they not taken the drug.  Having one event (the heart attack) follow another (Vioxx use) does not prove causation, after all.  I guess the jury decided that this guy was not at risk for a heart attack otherwise.  Of course, they admitted that:

Mr. Garza, a Vietnam veteran who was 71 years old when he died in 2001,
had a history of smoking, had suffered a prior heart attack in 1981 and
had quadruple bypass surgery in 1985.

But I'm sure that had no bearing on his heart attack.  It must have been from the week of Vioxx.  His lawyers mitigated this by arguing:

he had a stress test shortly before his heart attack that showed he was in good health

Do you know how many men die of heart attacks within months of having a clean stress test?  A lot.

The plaintiffs initially asked for a billion dollars, so I guess if only by comparison the verdict was reasonable.  I wrote more about the danger of making uninformed juries the arbiter of what risk trade-offs we as individuals can take with our medications here and here and here.  I questioned multiple punitive damage awards for the same offense in the context of double jeopardy here.

I saw the other day that Merck lost another Vioxx trial, with the jury awarding $4.5 million to a man who had a heart attack after taking Vioxx.  I won't get into my problems with this type of litigation today, but I did in many other posts like this one (and this and this).

My question today revolves around the fact that this trial is now going into the punitive damages phase, where the jury will decide if Merck owes more money as a punishment not narrowly for this man's heart attack (for which they are paying $4.5 million) but more generally for Merck's actions in bringing the drug to market at all.

Here's the problem:  A jury in Texas already hit Merck with $259 million in punitive damages*.  This number was based on a lot of testimony about Merck's sales and profits from Vioxx, so it was presumably aimed at punishing Merck for "errors" in their whole Vioxx program.  So if that is the case, how can Merck end up facing a jury again coming up with a separate punitive damage award for the same "crime"?  Sure, it makes sense that Merck can owe actual damages to individual claimants in trial after trial.  But how can they owe punitive damages for the whole Vioxx program over and over again?  Aren't they being punished over and over for the same misdeed, violating their Constitutional protection against double jeopardy?

I'm not sure what the solution is.  One approach, of course, would be to say that punitive damages can only be awarded once, which would effectively mean they would go to the first plaintiff to win his case.  I am not sure this makes a lot of sense from a public policy point of view, but it would be highly entertaining to watch tort lawyers knocking themselves over and maneuvering to be the first verdict, knowing that if they are first,they would get 30% of hundreds of millions of dollars but if they are second they get 30% of much much less, since punitive damages are always far larger than actual damages.

*Under Texas law, this amount will likely be reduced, but it doesn't change the fact of double jeopardy

First, a little background as I understand workers comp:  Years ago, government, workers and employers effectively made a deal that has worked pretty well for everyone.  In that deal, workers gave up the right to sue for workplace injuries in exchange for a program where employers were required to contribute to a workers comp fund and employees are paid by a government bureaucracy for their health care and lost time.  The system is "no-fault" to the extent that it does not matter if the worker is hurt because the employer had unsafe conditions or if the worker is hurt because he did something boneheaded in violation of rules - either way he gets paid the same.  The system avoids moral hazard at least on the employers side by charging higher premiums to employers that have higher claims rates  (based on an experience mod system explained here).  Employee moral hazard (ie cheating) is supposed to be policed by the bureaucracy, and one can evaluate how much cheating is going on by how high the rates in the state are.  California used to have very high rates and lots of cheating, but has cracked down of late and things are better.  Florida is the king of workers comp fraud and employee cheating, so much so that many national insurers won't touch Florida and our rates are twice as high (or more) in Florida than in other states.

Already frustrated with Florida over the high amount of cheating and high rates, two things I have seen here of late make me doubly depressed.  First, in the last year or so we have started to see claims paid where in addition to, say, $20,000 in actual compensation to a worker, there is an equal amount paid to lawyers.  The first time, I was irate.  Why are my workers comp dollars going to lawyers?  The whole point of the workers comp system is to substitute an administrative no-fault claims system for expensive lawyers and trials.

So this week I get my second surprise about Florida workers comp.  I am down in Florida, doing some business as well as visiting the in-laws (which is why blogging has been light) when I start to hear radio commercials by law firms that say "If you have been hurt at work, call us first before you claim workers comp."  The message is not even, "call us if you think the administrative decision was unfair" but was "get us involved with every little claim."  Does this mean that I am going to start seeing a lawyer 'tax' on every workers comp claim in Florida?  If so, Floridians must have passed some pretty dumb legislation somewhere along the way.  Now, I might understand this if this was a worker backlash in some state that administratively is over-tough on workers in filing their claims, but Florida has historically been the most generous already.  I am sure most of the employers in this state have experienced the "debilitating injury the day before I was going to quit,"  a tried and true Florida technique for supplementing unemployment insurance for a bit of paid vacation. 

Maybe some of the readers can confirm if Florida did something new legislatively over the past few years that opened this up.  By the way, and I apologize in advance to all my hard-working readers in Florida, but I don't think there is any other state with a larger population of searching-for-something-for-nothing freeloaders than one can find in Florida.  Something culturally seems to be wrong here, and I wonder if Florida might not be the next California, with businesses heading for the exits.

A guy in Lodi, California seems to have discovered the lawsuit-equivalent of perpetual motion by suing himself (via Overlawyered)

When a dump truck backed into Curtis Gokey's car, he decided to sue the
city for damages. Only thing is, he was the one driving the dump truck.
But that minor detail didn't stop Gokey, a Lodi city employee, from
filing a $3,600 claim for the December accident, even after admitting
the crash was his fault.

Wow, up to this point, you needed an accomplice for this kind of thing, but now you can just do it yourself -- hop in the company car, run it into your house (or maybe the wife and kids for a really big payday) and sue the company.  Genius.

Via Overlawyered, is the incredible story of Shannon Peterson, who is being sued for taking a bath before work.  Really:

Many people find the sound of running water soothing and peaceful.

Not Marvin and Goldie Smith, who have sued their neighbor over her 5 a.m. baths.

The
couple, 83 and 78 respectively, live on the eighth floor of the Polo
Club Condominiums near the Cherry Creek Shopping Center. They claim the
water pipes they share with the woman below them vibrate so badly they
can't sleep through her early morning baths....

So the Smiths called their son, Sheldon, a
partner in the Holland and Hart law firm. He sent a letter, threatening
Peterson that her "intransigence ... and tortuous conduct have resulted
in incredible sleep deprivation for Mr. and Mrs. Smith. Your obstinacy
has ruled the day. That will now cease."

He then ordered Peterson to stop running water in her bathtub before 8 a.m....The Smiths sued Peterson just before Christmas, citing the "reckless and negligent use of her bathtub."

Unbelievable.

In what we may look back on as one of the worst and most destructive jury verdicts of the decade, three paint makers were found guilty of selling lead paint back when it was, well, legal:

A Rhode Island jury today found Sherwin-Williams Co. and two other
paintmakers guilty of creating a 'public nuisance' by manufacturing
lead paint after it was found to be dangerous." If upheld, the verdict
will force the companies to contribute millions toward abatement of
existing paint; a judge will also consider demands for punitive
damages. The ruling, the first of its kind, is also expected to
encourage the filing of more suits against the industry

As Walter Olson points out, the suit was dreamed up by veteran law firms from tobacco and asbestos lawsuits, using bits of both litigation models:

The verdict is an unfortunate confirmation that the "tobacco model" of
mass tort litigation remains alive and well. In particular,
contingency-fee private counsel have once again managed to 1) dream up
a novel idea for litigation based on the idea that some category of
public expenditure is really blameable on long-ago sales of a product;
2) sell the idea of suing to public officials who agree to front the
action, and who thus provide (along with advocacy groups) a suitably
public face for the lawsuit; and 3) manage to get liability attributed
retroactively to businesses whose actions decades ago were plainly
lawful under the standards of that time.

The firm Ness Motley who is RI's partner in this, is, surprise surprise, the largest single political donor in the state.

The WSJ($) has more thoughts today about why this verdict is so bad:

There are so many screwy aspects to this case that
it's hard to know where to begin. The jurors heard no evidence about an
injured party, nor were they informed of any specific house or building
that constituted the "nuisance." As for the defendants, Judge Michael
Silverstein instructed the jury that it wasn't necessary to find that
Sherwin-Williams, NL Industries and Millennium Holdings had actually
manufactured the paint present in Rhode Island or that they had even
sold it there.

Oh, and did we mention that at the time the companies
may or may not have sold lead paint in Rhode Island it was an entirely
lawful product? "The fact that the conduct that caused the nuisance is
lawful does not preclude liability," Judge Silverstein said. Lead paint
was banned for residential use in 1978.

So why is this such a big deal?  One only has to look at the situation in asbestos to see the potential ramifications.  The asbestos mess began, sensibly enough I guess, with lawyers suing makers and heavy users of asbestos products into bankruptcy for the benefit of people seriously ill (though one can argue that most of these cases belonged in the workers comp. system, but workers comp. doesn't allow those juicy punitive damage payments that pay the fuel bills for the lawyers' Gulfstream V's).  Eventually, the asbestos mass tort morphed into lawyers suing any company with deep pockets that had even heard of the word asbestos for the benefit of tens of thousands of people who had never been harmed but only claimed to have been present in the same zip code as asbestos. 

Here is the problem with the potential lead paint mass tort:  It has skipped right to the asbestos end-game, bypassing the "helping people who were seriously harmed" stage and jumping right to the settlements for billions without proof of any related injury.  And for all the ubiquity of asbestos, lead paint was even more prevalent in its day.  Will Sears be bankrupted for selling lead paint?  Will auto-makers and homebuilders be bankrupted for using it?   And, separately, will any of the settlement money that flows to states really go to lead paint abatement, or will most go to general revenue, as it did with tobacco?

OK, so its clear why those of use who care about stuff like property rights and individual responsibility might be appalled at this decision, but you progressive public policy types should be appalled as well.  If this thing gets rolling, the country will end up diverting hundreds of billions of dollars to a problem, mainly childhood lead poisoning, that while not solved has really been greatly reduced over the past few years.  Just to get a sense of scale, for example, we are talking about far more money potentially focused on lead paint than the total spent today publicly and privately on AIDS and cancer research combined.  Totally insane.

I posted on shareholder suits over at Overlawyered.  A reader sent me this great article from 2000 in Fortune on Bill Lerach, the kind of shareholder suits.  These thoughts echo my own (or, since I guess this was written long before my post, my thoughts echoes these):

Stanford law professor Joseph Grundfest, a former
SEC commissioner, goes so far as to describe the current system governing
securities fraud as "nuts." As he sees it, class-action settlements amount
to nothing more than an unproductive "transfer payment" from current shareholders
to past shareholders--with big contingency fees skimmed off the top. "The
plaintiffs lawyers are getting a cut of the money that flows from our left
pocket to our right pocket," he says. Even in those cases involving genuine
wrongdoing, he adds, the individual perpetrators rarely pay anything out
of their own pockets, thanks to insurance and indemnification policies.
Nor do the shareholders get much--generally no more than 15% of their losses,
studies show. "Fraud is wrong," says Grundfest. "It has to be punished.
But what we have here is a shell game."

Read the whole article.  In many of the anecdotes, Lerach seems to be channeling Tony Soprano.

In a recent post, I started to develop the theory that people who are positive to neutral about the regulatory state may be so in part because they don't encounter it - e.g. an employee tends to be sheltered from the mind-numbing body of labor law that regulates his relationship with his employer because more efficient HR departments and payroll companies shelter people from this mess.

By the way, let me digress just one second on the nature of my blogging.  When I said above that it was a theory I started to develop in a post, this does not mean that I sat around for days, came up with the idea, and started to flesh out my well-oiled thinking on the topic in that post.  It means it occurred to me literally while I was typing my post, somewhere between paragraphs 3 and 4.  I use the act of blogging as a way to test-drive my thinking on certain topics, which puts you the reader in the position of something between a intellectual sounding board and a psychotherapist.  I actually spend my time trying to keep my business running -- my college roommate is the only one I know who gets paid to sit around and think deep thoughts.

Anyway, with that out of the way, I can return to the actual point of this post which is to point out that the same attitude of "not to know it is to love it" may well apply to torts and litigation.  All romantic and heroic as portrayed in the media (e.g. Erin Bronkovitch), torts as practiced in real-life seldom so heroic, either in their details or their outcomes.  Here is Bookslut wondering about her opposition to tort reform now that she has witnessed some silly lawsuits in her area of familiarity.  Overlawyered has background on the case in question/

Once and a while, I like to put in a plug for Overlawyered.com, which is a great place to keep up with the wacky and increasingly scary world of jackpot litigation and over-regulation. Just keep scrolling.

Catching my eye is this piece from Canada, concerning my "extended family":

"A Vancouver woman is suing the city and the B.C. government for
allegedly failing to keep the streets safe after her pet cat was killed
by two coyotes....In a statement of claim filed in B.C. Supreme Court,
[Judith] Webster says she's suffered and continues to suffer from
post-traumatic stress and/or adjustment disorder, loss of enjoyment of
life, and loss of past and future earnings."

Arizona has gotten a lot of press for its shoot to kill order on wild animals in inhabited areas, engendered by a similar suit against the state.  Environmentalists have made common cause successfully for years with the tort bar, but one wonders if these kinds of suits may drive a wedge between them.

By the way, did anyone see that guy in Pittsburg who had a heart attack in a bar when Jerome Bettis fumbled the ball late in the 4th quarter against Indy?  I wonder if he will be suing the Steelers for "post-traumatic stress and/or adjustment disorder, loss of enjoyment of
life, and loss of past and future earnings"?

The other piece that caught my attention was this, from New York:

"Last summer, [New
York City's] health department launched a campaign against trans-fats.
Often used by restaurants and in packaged foods, trans-fats are thought
to cause cholesterol problems and increase the risk of heart disease.
After restaurant inspectors found that 30 percent of the city's 30,000
eateries were using oils that contain trans-fats, the department began
urging a citywide ''oil change.'' Officials sent letters to food
service operators and started teaching workers about trans-fats along
with their required food safety training. The city plans another survey
this spring to measure the results of the project. Officials next want
to tackle portion sizes. Towering pastrami sandwiches, bagels with
gooey schmears of cream cheese and pizza slices that spill over paper
plates may be the city's culinary landmarks, but the health department
says the Big Apple is out of control."

Which makes the NYC health department officials the only New Yorkers I have ever heard complain about getting too much for their money.

The other day, I wrote about the left of late lamenting that the machinery of state control that they created, agencies like the FDA and public schools, are being taken over by their political enemies, the "Neanderthal southern religious conservatives".  I observed that they were not apologizing for creating a statist structure to control individual decision-making, but just were upset they lost control of it.

In using the FDA as one example:

Today, via Instapundit, comes this story about the GAO audit of the decision by the FDA to not allow the plan B morning after pill to be sold over the counter.
And, knock me over with a feather, it appears that the decision was
political, based on a conservative administration's opposition to
abortion.  And again the technocrats on the left are freaked.  Well,
what did you expect?  You applauded the Clinton FDA's politically
motivated ban on breast implants as a sop to NOW and the trial
lawyers.  In
establishing the FDA, it was you on the left that established the
principal, contradictory to the left's own stand on abortion, that the
government does indeed trump the individual on decision making for
their own body  (other thoughts here).
Again we hear the lament that the game was great until these
conservative yahoos took over.  No, it wasn't.  It was unjust to scheme
to control other people's lives, and just plain stupid to expect that
the machinery of control you created would never fall into your
political enemy's hands.

That has spurred a lot of email pointing me to other FDA-related articles.  I posted this one in the updates of that same post, pointing out how the FDA process (and the tort process, by the way) puts a much higher value on a life lost to drug side-effects than to a life saved from drug benefits.

Today I was pointed to this article by Derek Lowe who has been a drug development researcher for a number of years:

As a drug discovery researcher, I can tell you something that might sound
crazy: many of these older drugs would have a hard time getting approved today.
Some of them would never even have made it to the FDA at all.

The best example is aspirin itself. It's one of the foundation stones of the
drug industry, and it's hard to even guess how many billions of doses of it have
been taken over the last hundred years. But if you were somehow able to change
history so that aspirin had never been discovered until this year, I can
guarantee you that it would have died in the lab. No modern drug development
organization would touch it.

Thanks in part to advertisements for competing drugs, people know that there
are some stomach problems associated with aspirin. Actually, its use more or
less doubles the risk of a severe gastrointestinal event, which in most cases
means bleeding seriously enough to require hospitalization. Lower doses such as
those prescribed for cardiovascular patients and various formulation
improvements (coatings and the like) only seem to improve these numbers by a
small amount. Such incidents, along with others brought on by other oral
anti-inflammatory drugs, are the most common severe drug side effects seen in
medical practice....

That brings us up to penicillin, a drug with a clean reputation if ever there
was one. But at the same time, everyone has heard of the occasional bad allergic
reaction to it and related antibiotics. Even with the availability of skin tests
for sensitivity, these antibiotics cause about one fatality per 50 to 100,000
patient courses of treatment. Other severe reactions are twenty times as common.
Those are interesting figures to put into today's legal context: over 9 million
prescriptions were written for Vioxx, for example. Any modern drug that directly
caused that number of patient deaths and injuries would bury its company in a
hailstorm of lawsuits, because (unlike the Vioxx cases) there would be little
room to argue about

While the "she was asking for it" defense has thankfully been purged from most rape trials (at least those involving strangers), it seems to be alive and well in the civil trial world.  Last week, a jury held that the terrorists who bombed the World Trade Center in 1993 were only 32% responsible for their actions.  The real villain in this terrorist attack was ... the Port Authority, owner of the facility, who so thoughtlessly allowed themselves to get bombed.  More via Volokh and Overlawyered.  Based on joint and several liability, the PA now is on the hook for the entire $1.8 billion verdict.

By the way, the "smoking gun" in the trial was apparently a recommendation the PA received (one of hundreds and perhaps thousands of suggestions of wildly varying quality) to close the parking lot to cars to prevent car bombs.  This helps reinforce my earlier point of why litigation insanity like this actually works to make the world less safe, because such litigation provides a strong disincentive for an entity to have any internal discourse on safety, since notes from this discourse can be held against it later. 

It is always useful to think about what consistently applied policy would have satisfied the jury that the PA was not liable.  In this case, the jury's verdict was clearly "they should have closed the garage to prevent car bombings."  Now, lets apply that everywhere consistently.  This would basically mean that we close every car parking garage in the country, since they are all equally vulnerable to a car bomb.  Applying this further, wouldn't this same standard also result in closing all tall buildings to prevent airplane attack, closing all airports to prevent hijackings, and closing all government buildings to prevent bombings (well, maybe thats not so bad).  I have posted before about finding the absurdity from translating a jury's civil verdict into a consistent policy.  Here is one example:

the exact wording on the complaint against the railroad is even better than I thought:

"The
[engineer] did not stop the train in a timely manner, and failed to
yield the right of way to a pedestrian walking along the tracks in
plain view"

A freight train's topping distance is measured in miles, even with full emergency braking.

She and her attorney's further argue:

that
the railroad was negligent for failing to post signs warning 'of the
dangers of walking near train tracks and that the tracks were actively
in useLets

leave aside the obvious point
about individual responsibility, and ask what would happen if this were
the legal standard, to have such signs.  To make sure someone saw one,
you would have to have one say every 30 feet.  Since there are just over 200,000 miles of freight railroads in the North America that works out to a bit over 35,000,000 signs that need to be posted.  At $100 per sign this would cost $3.5 billion.

Here is the serious point:  Never would any legislature
pass a law that said there had to be warning signs every 30 feet on
railroads.  It would be way too costly for little benefit.  At grade
crossings today, we have signs and flashing lights and even gates and
still thousands of people a year drive in front of trains on grade
crossings.  So, if we would never require it legislatively, how have we
gotten to a point where a jury might effectively retroactively require
such signs, and assess a multi-million dollar penalty for not doing it?

Walter Olson has a post on California Prop 79, which

contains a sneaky, little-discussed provision that will empower trial
lawyers to file bounty-hunting suits against pharmaceutical companies
if the companies charge prices "that lead to any unjust and
unreasonable profit", with a minimum $100,000 plus fees guaranteed to
plaintiffs if a jury agrees that they have proved this (very hazily
defined) offense.

He has a roundup of posts on other California bounty-hunting laws.  I knew about a few of these, but the list is a lot longer than I suspected.

There is an interesting discussion about liability going on at Overlawyered and Prawfsblawg.  The original subject was Eddy Curry, the basketball player who may or may not have a genetic heart condition.  The Chicago Bulls refused to play him until he had submitted to a series of tests that would let them determine for themselves if it was safe for him to play (Curry had already said that he wanted to play).

The Bulls have been derided in a number of venues for requiring privacy-invading tests which Curry reasonably refused to submit to.  However, in today's legal world, the Bulls are being entirely rational and in fact entirely consistent with the law, at least as it is practiced in courts today.  Many courts, including those in particular in legal hellhole Illinois, have pretty much thrown out most liability wavers.  Effectively, courts have said that Curry has no right to make risk-reward trade-offs for his own body and self, and if he gets hurt playing for the Bulls, it is the Bulls fault and they can be sued.  So, reasonably, the Bulls want the necessary information to make that safety decision, since the fact that Curry has already decided for himself holds no weight in courts today.

I have long lamented this statist tendency to treat us all like incompetent children, effectively revoking our ability to make decisions for ourselves and our own lives.  Where the discussion gets interesting, though, is when a lawyer suggests that Curry's liability waiver should hold more water than the average person's, since he is wealthy and has access to a full range of professionals to advise him.  Which suggests that there is some point, either in terms of wealth or education, where Americans may actually regain the right to make decisions for themselves and be held responsible for them.  I remember when I was working on an acquisition of a company, and was concerned whether a non-compete agreement I had the other party sign was enforceable.  After all, I had in the past had non-competes signed by my employees routinely thrown out by judges.  My attorney told me that it is assumed that the average ordinary employee does not know what they are doing when they sign an agreement, but that wealthy business people in a transaction are treated like big boys and it is assumed they actually understand and really mean what they sign their name to.

Overlawyered concludes:

A fascinating epitomization of the litigation culture: "ordinary"
people can't make intelligent and free decisions, but elites"”presumably
including lawyers and judges"”can properly advise them how to do so.

Paul's proposed rule of emancipation upon reaching a certain wealth
level has interesting ramifications. It would be fascinating to see
what democratic political consensus would develop for where to set the
Gowder Line above which people are permitted to make free decisions.
Many doctors and attorneys would be sufficiently wealthy to qualify,
but would public interest and government attorneys protest that,
through no fault of their own, they don't have the same rights as
BigLaw partners and their children? Would college professors lobby for
the same emancipation rights as wealthy millionaires because they're
already sufficiently sophisticated? And once that happens, would the
NEA dare to suggest that teachers aren't entitled to the same status?
Before you know it, every Sneech will have a star on his belly.

I made myself clear about this long ago:  We have got to move to a point where adults can be trusted to make decisions for themselves and take responsibility for those consequences.  However, the temptation is just too great, it seems, to act like you know more about someone's best interest than they do.

Update: By the way, we discuss this all in terms of capability and competence and knowledge.  One important factor not discussed above is that every person has a different set of values.  Mr. Curry may rank the value of playing basketball, or making lots of money, higher than the risk of losing his full four-score and ten year lifespan.  Or he might feel just the opposite.  I have heard athletes who have said they would have played pro sports even if they knew for sure they would only as a result live until 50, and I have heard athletes call those others insane.  We all have different values, and even beyond relative confidence and information in making decisions, it is IMPOSSIBLE for other people to make quality decisions about your life, because they are not going to share the details of what you value and how much.  But of course they do all the time.  And if we assign others liability when we make the wrong choice in our life, then we are just asking for other people to take over our decision-making. 

In a free society, I suppose you can delegate the decision-making for your life to others, if you lack confidence in your abilities, but don't give away mine!

Update #2:  Here is another decision adversely affected by lawsuits:

We've reported before (Mar. 18, 2004)
on how, after court decisions in Arizona eroded the state's
longstanding immunity from being sued over the actions of wild animals,
lawyers began obtaining large verdicts from public managers over
humans' harmful encounters with wildlife -- with the result that
managers began moving to a "when in doubt, take it [out]" policy of
slaughtering wild creatures that might pose even a remote threat to
people. The continuing results of the policy came in for some public
discussion last month after a bear wandered into a residential area
near Rumsey Park in Payson, Ariz. and was euthanized by Arizona Game
and Fish personnel:

[Ranger Cathe] Descheemaker said
that the two Game and Fish officials were no doubt following procedure,
and that bears are routinely destroyed ever since the agency was sued
when a bear mauled a 16-year-old girl in 1996 on Mt. Lemmon near
Tucson.

"Since Game and Fish lost that lawsuit, they do not relocate any
bears," she said. "The fact that bear was in town was its death
warrant."

I missed this story the first time around, but apparently a husband and wife team of lawyers has revived the old badger game, but in a more modern form:

According to a story in the San Antonio Express-News,
husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received
money in a curious sequence of events. Mary, claiming to seek "no strings"
discreet encounters, would seduce men over an Internet dating service. Ted would
then write the men (in legal documents sometimes typed by Mary) and notify them
that he planned to seek intrusive and public civil discovery to investigate
whether the affair brought forward potential causes of action that were flimsy
at best; the men would pay tens of thousands of dollars for a release and
confidentiality agreement.

Read the full Overlawyered update:  it is fascinating to see just where watchdogs set the ethical bar for lawyers (hint: its really low).  Apparently the Bar Association can't decide if they think this behavior by the Roberts is unethical.  Currently the the attorney who blew the whistle on this scam is being investigated, but the scammers themselves are not under investigation.

I wrote about the Vioxx decision here as another defeat for personal choice. Marginal Revolution has a good post on gaps in the anti-Vioxx science.  Here is a taste:

...[E]ven if there actually is an elevated risk of the magnitude the studies
suggest but can't prove, the question is whether I might want to accept a 1 in 4,000 risk of dying
from a heart attack in order to get the only medication timt
makes my pain bearable and a mobile life livable.  And if I say no to the
Vioxx, I may end up taking something that is less effective for my pain but has
risks of its own.

.... How did we arrive at a system in which 12 random Texans are assigned
responsibility for evaluating the scientific merits of statistical evidence of
this type, weighing the costs and benefits, and potentially
sending a productive blue-chip American company into bankruptcy protection?

I could fill this blog with litigation horror stories, but there is no need when Walter Olson does such a good job.  If you read his blog much, one of the themes than runs through the cases he highlights is the ever widening search in every case to find the deep pockets.  Unfortunately for trial lawyers, the person who is truly at fault, ie the drunk driver that runs down a pedestrian, seldom has deep enough pockets to produce a really satisfying fee.  So you gotta be creative.  This is to be expected.  What is not to be expected is the lengths to which the judicial system goes to validate this search (via Overlawyered):

The state Supreme Court has ruled that store owners can be sued for causing
injuries in a drunken driving accident if they sold gas to an intoxicated
driver.

The court ruled in a lawsuit filed by two men who were severely
injured in 2000 when they were struck head-on by Brian Lee Tarver, who later
pleaded guilty to vehicular assault and driving under the influence.
Before the accident, Tarver bought gas at an Exxon owned by East
Tennessee Pioneer Oil Company.

Fortunately, I guess, Exxon is used to getting sued for damages by drunk drivers. 

This case I wrote about previously is one of the best examples I have seen of how liability goes to the deep pockets, not the guilty:

Car veers into
truck's lane...and so a jury has ordered the trucking company, Auction
Transport Inc., to pay $22.5 million over the resulting injuries to a
young passenger in the accident, which occurred at rush hour on Kansas
City's I-435. Mary Coleman's car, allegedly sideswiped by a third
vehicle, had careened in front of the truck, but attorneys argued that
the truck driver had been "driving too fast in congested traffic and
not watching the road." The jury found the trucking company responsible
for just less than half the fault of the accident -- a greater share of
fault than the allegedly sideswiping driver -- and Coleman for hardly
any of it.

So, surprisingly enough, three
vehicles involved, two with limited resources and one with deep
pockets.  Guess who is liable - the deep pockets of course, despite the
fact that he was the only driver among the three who stayed in his lane!

Now, here is the thought experiment.  Move the truck with
deep pockets into any of the other two roles.  Imagine first that it
was the car that nudged the plaintiff into the other lane.  Imagine
next that the truck was the one nudged into oncoming traffic and hit
the plaintiff.  In these two cases, if they had gone to trial, who
would have gotten the blame?  I would bet you that in either case, the
truck with the deep pockets would have been given most of the blame in
either of these cases.

So where is the fairness?  Why should blame be based on
bank account size, and not actual actions?  Is there anything more than
coercive wealth transfer going on here?  Does this constitute justice?

Law

The town of New London, CT, is assessing nearly 5 years back rent on Susette Kelo and other property holders whose land the Supreme Court recently allowed the city to confiscate.  As it stands, if New London has its way, Kelo will not only lose her house, she will also be wiped out financially, all for the crime of owning the land where New London wanted condos and hotels.

The U.S. Supreme Court recently found that the city's original seizure of
private property was constitutional under the principal of eminent domain, and
now New London is claiming that the affected homeowners were living on city land
for the duration of the lawsuit and owe back rent. It's a new definition of
chutzpah: Confiscate land and charge back rent for the years the owners fought
confiscation.

In some cases, their debt could amount to hundreds of thousands of dollars.
Moreover, the homeowners are being offered buyouts based on the market rate as
it was in 2000...

The New London Development Corp., the semi-public organization hired by the
city to facilitate the deal, is offering residents the market rate as it was in
2000, as state law requires. That rate pales in comparison to what the units are
now worth, owing largely to the relentless housing bubble that has yet to burst.

"I can't replace what I have in this market for three times [the 2000
assessment]," says Dery, 48, who works as a home delivery sales manager for the New London Day . He soothes himself with humor:
"It's a lot like what I like to do in the stock market: buy high and sell low."

And there are more storms on the horizon. In June 2004, NLDC sent the seven
affected residents a letter indicating that after the completion of the case,
the city would expect to receive retroactive "use and occupancy" payments (also
known as "rent") from the residents.

In the letter, lawyers argued that because the takeover took place in 2000,
the residents had been living on city property for nearly five years, and would
therefore owe rent for the duration of their stay at the close of the trial. Any
money made from tenants, some residents' only form of income, would also have to be
paid to the city....

An NLDC estimate assessed Dery for $6,100 per month since the takeover, a
debt of more than $300K. One of his neighbors, case namesake Susette Kelo, who
owns a single-family house with her husband, learned she would owe in the
ballpark of 57 grand. "I'd leave here broke," says Kelo. "I wouldn't have a home
or any money to get one. I could probably get a large-size refrigerator box and
live under the bridge."

I want to barf.  Hat tip to Reason's Hit and Run.