>> Overlawyered & Overgoverned
An annual helping of tales from a litigious society.
By Walter Olson
How were we governed, regulated, policed, lawyered, and judged in 2000? Sadly,
much the same as in 1999. Here are some of last year’s month-by-month "highlights":
January: New York City announced that it did not intend to give back the brand-new
$46,000 Ford Explorer it had seized from 34-year-old construction worker Joe Bonilla
after his arrest on drunk-driving charges, even though Bonilla had been found not guilty
of the charges.
A husband and wife filed a million-dollar lawsuit against the University of Miami School
of Medicine for failing to warn them that their daughter might be born with Down
Syndrome even though the school knew that they were first cousins to each other, a
"high-risk" category that often prompts additional precautionary testing. (The couple’s
grandparents are also first cousins to each other.)
Serious fire code violations, including lack of smoke alarms in sleeping quarters and an
improperly installed firewall, threatened to delay the ribbon-cutting of a $1-million public
facility in Charleston, West Virginia. The facility was a fire station.
February: Escaped Bulgarian murderer Mincho Donchev, who lived for 10 years as a
"mountain man" burglarizing vacation cabins in the Cascade Mountains of Washington,
won a $412,500 settlement in his lawsuit against Snohomish County for excessive force
in his arrest. A police dog had mangled Donchev’s foot as officers tried to subdue him.
At the time of the arrest, Donchev was armed with knives, handguns, and a pronged
stick. Donchev’s attorney said the money would help ease his client’s re-entry into
society on his release from prison.
Former Chicago city treasurer Miriam Santos, once a rising political star, "blamed her
now-overturned conviction on extortion charges on pre-menstrual syndrome," reported
UPI. "I am human and probably the first woman to go to jail for PMSing," she told a
news conference.
ABC confirmed that it had paid $933,992 to Mark Sanders, an employee of the Psychic
Services Network. A jury endorsed Sanders’ complaint that the net-work’s
newsmagazine PrimeTime Live had harmed his reputation in 1993 when it covertly
videotaped him and his colleagues working the phones and aired the resulting tapes in a
show designed to depict the call-a-psychic business as "a scam and illegitimate."
March: The Equal Employment Opportunity Commission argued before a federal
appeals court that Conrail violated the Americans with Disabilities Act when it denied a
dispatcher’s job to an employee with a heart condition that can cause him to black out.
According to the Detroit News, the agency told the court "that ‘while consciousness is
obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job
function.’...The [job] involves directing trains and taking emergency action to prevent
crashes."
Salon reported that New Age alternative medicine advocate Deepak Chopra, who says
he won a $1.6 million settlement in his defamation suit against The Weekly Standard a
while back, described the legal action as "an act of love" meant to lift the magazine to "a
higher state of awareness."
Ed O’Rourke sued Tampa Electric, along with six bars and stores that sold him alcoholic
beverages, over a 1996 incident in which he was blasted by 13,000 volts of electricity
after breaking into a fenced, gated, and locked utility substation and climbing up a
transformer in what he termed a "drunken stupor."
April: Four New Jersey kindergartners were given three-day suspensions after they
pretended their fingers were guns and played at shooting each other in a game of cops
and robbers. "This is a no-tolerance policy. We’re very firm on weapons and threats,"
said district superintendent William L. Bauer. "Given the climate of our society, we
cannot take any of these statements in a light manner."
A Norwich, Connecticut, couple sought $21 million in damages from Publisher’s
Clearing House, the magazine sweepstakes company, saying that its repeated notices
marked "Document of Title" and "official correspondence from the Publisher’s Clearing
House board of judges" with messages such as "Congratulations! Your recent entry was
a winner! And Approved for $21 Million!" convinced them that they would receive the
grand prize in person on Super Bowl Sunday. They even got all dressed up to wait for
the knock on the door, but it never came, resulting in devastating emotional distress.
Vili Fualaau, now 16, who figured in national headlines because of his affair with his
former grade school teacher, Mary Kay Letourneau, is seeking damages from his
suburban Seattle school district because it had not prevented the relationship. All parties
described that relationship as consensual.
May: Rob Barry, who has sold peanuts for 19 years in the stands at Boston’s Fen-way
Park, said he may retire in response to an order from management forbidding him from
tossing the packaged legumes across rows of seats to buyers. The Ara-mark company,
which runs the food concession, is worried about being sued by a bystander hit by a
flying goober bag.
The Internal Revenue Service agreed to stop dunning a New Mexico businessman who
inadvertently dropped a fractional penny while calculating his tax return and as a result
came up one cent short. Counting penalties and interest, the IRS had been trying to
extract $286.50 for the one-cent error.
June: A judge reinstated a foreman at an Omaha wastewater treatment plant after he’d
been caught on hidden camera repeatedly taking naps at work. The city had not
properly disclosed the evidence against him before a pre-termination hearing, said the
judge. The worker also claimed that his persistent dozing was the result of a sleep
disorder.
Marthe Kent, director of the Occupational Safety and Health Administration’s safety
standards program and head of the agency’s controversial ergonomics initiative, told a
trade publication that issuing a regulation "is a thrill; it’s a high." She added: "I love it; I
absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as
long as I’m regulating, I’m happy."
A court in Sydney, Australia, awarded the equivalent of $15,600 in compensation to a
spa masseuse who said she suffered stress and depression from having to hear clients
gripe about their personal problems.
July: Just as the federal government geared up a big campaign to raise the alarm about
private Web sites that purportedly invade visitors’ privacy by using "cookies" to track
their movements, it was revealed that dozens of federal agencies’ sites use cookies to
track visitors, including visitors seeking information on such sensitive topics as drugs and
immigration.
The Washington Post reported that most of the campaign Web sites of politicians who
vocally support disabled rights fail to heed even minimal guidelines for disabled
accessibility. Among the sites in question were those of George W. Bush, Hillary
Clinton, and Ralph Nader.
Disabled activists in New Haven, Connecticut, lodged a complaint against the schooner
Amistad, a traveling historical exhibit, saying it was not wheelchair-accessible. The
original Amistad was the scene of a famous slave revolt in the mid-1800s and its
recreated version is meant to evoke the overcrowding and other inhumane conditions of
the slave trade.
August: Police in Davidson, North Carolina, defended the decision to search a
woman’s car for drugs after an officer noticed that she had in her car a copy of a
newspaper with a photo of a marijuana plant. Nothing unlawful was found.
Miami plaintiff’s attorney Stanley Rosenblatt, after persuading a jury to vote a $145
billion punitive damage award against major tobacco companies, told Knight-Ridder that
other legal issues so absorbed his attention that he wasn’t giving any thought to the
possible fees he might recover from the action.
September: The Equal Employment Opportunity Commission ruled that belief in odd
scientific notions, such as cold fusion or mysterious messages from UFOs, may be
entitled to antidiscrimination protection on the same basis as religious belief.
A judge criticized an Indianapolis law firm for billing heirs $1.5 million for administering
the estate of a wealthy businessman who died without a will, a sum that included 900
hours worth of work it says it spent calculating those very fees.
October: Owens Corning, the top maker of home insulation, filed for bankruptcy under
the pressure of hundreds of thousands of asbestos lawsuits, most filed by workers with
no significant illness. The previous year, 12 Democrats on the House Judiciary
Committee, including Reps. John Conyers Jr. (Mich.), Howard Berman (Calif.), Zoe
Lofgren (Calif.), Maxine Waters (Calif.), and Tammy Baldwin (Wis.) had signed a
report declaring that "there is little likelihood that asbestos liability could lead to
bankruptcy" for Owens or other big companies. According to the Democrats, "the
principal remaining asbestos defendants are not facing any significant threat of
bankruptcy." Among other companies they named as in no danger of going broke was
Armstrong World Industries, the largest maker of flooring, which proceeded to seek
protection from creditors in December.
Zoning authorities in Snydersville, Pennsylvania, sent a violation notice to father and son
farmers Jake and Stuart Klingel because they had carved a maze through their cornfield
and opened it to the public for a fee.
November: A three-judge panel ruled that Atlantic City, New Jersey, casinos did not
violate the federal racketeering law by reshuffling blackjack decks frequently when they
knew or suspected that patrons were counting cards, a memory technique that can
improve a customer’s odds of beating the house as the number of remaining undealt
cards declines. Federal Judge Morton Greenberg ruled that the claims "border on the
frivolous" because the New Jersey Casino Control Commission specifically authorizes
casinos to reshuffle at will, because the players "can avoid any injury simply by walking
away from the alleged wrongdoers, the casinos," and because the loss of the chance to
make money at a casino’s expense can hardly be characterized as "an injury to business
or property."
December: Reversing a lower court, the Mississippi Supreme Court ruled that one
Robert Shindler had no grounds to sue the Grand Casino Tunica for extra winnings he
said he was due, in the court’s words, "for a series of mini-baccarat games he played on
August 22, 1997. Shindler claims that although he wanted to bet $20,000 per hand,
casino personnel would only let him bet $5,000 at a time."
A federal judge ruled that although Tina Bennett had been "belligerent and displayed an
unprofessional attitude" at her job, had "difficulty controlling her emotions" and was
"incredibly sensitive to criticism," she was nonetheless entitled to sue arguing that these
personality traits were caused by severe depression and should have been
accommodated under the ADA by her employer, the Unisys Corp.
In Great Britain, the defense ministry announced that the noise to which soldiers are
exposed from military brass bands, and likewise the noise from gunfire during infantry
training exercises, was in violation of occupational-safety regulations safeguarding
workers’ hearing. "One solution would be to provide ear protectors during training, but
then soldiers couldn’t hear their sergeant major giving orders," said a ministry
spokesman.
The chief of Britain’s military staff, General Sir Charles Guthrie, assailed as
"ill-conceived" a proposal floated by figures within British officialdom that the armed
services should be compelled to accept disabled recruits for front-line positions.
Meanwhile, British schoolyards are prohibiting children from engaging in skipping and
other quaint pastimes such as the game of "conkers," played by throwing chestnuts at
classmates. A survey by Keele University found educators were nervous about being
sued, and one headmaster declared that if he had his way he would "ban all playtimes, as
they are a nightmare." <<
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