June 17th, 2010

Empire State Bldg Jumper Loses Suit Over “Emotional Distress”

Do you remember Jeb Corliss? He’s the clown that tried to BASE jump off the Empire State Building in 2006, got busted by security, and then sued the building claiming emotional distress. I know, I know, that sounds even dumber than the claim of being fired for being too sexy, but it’s true, he actually did make such claims as I wrote about a year ago: Empire State Building v. Jeb Corliss.

Well, first he was convicted of reckless endangerment, and sentenced to three years probation and 100 hours of community service. Then his lawsuit for defamation — he claimed it was defamatory to claim his conduct was illegal, a concept that fell by the wayside upon his conviction — and his claim for emotional distress, were tossed out.

Justice Jane Solomon wrote that “Preventing an individual from jumping off of the 86th floor of the Empire State Building is neither extreme nor outrageous,” (h/t Overlawyered).

And just to make sure he got the point, the judge also banned him from ever setting foot in the building again. Why do that? Presumably so that if he tries again, and again endangers the lives of the pedestrians on the street below, a future judge can add contempt of court to the charges that he will face.

He was also fired from his job as host of the show Stunt Junkies. And the Empire State Building’s lawsuit against him for disrupting its business will be allowed to go forward, meaning that he might stand to lose a pretty penny in cold, hard cash when this is all over. Unlike the overwhelming majority of injury cases, it’s rather unlikely that there is an insurance company standing there beside Corliss for his intentional act.

Was all the publicity worth it?

Maybe he can commiserate with ‘too sexy’ banker Debrahlee Lorenzana who is now the laughing stock of New York (because with two wars, a crappy economy and a massive oil spill, we need something to laugh about). They’d make a great couple in the never-ending pursuit of celebrity. They could even make babies together: Imagine the offspring of a dipsy banker and a brainless stunt junkie. I know there’s a joke in here waiting to get out, but I can’t really top what the two of them have already accomplished, and besides, their abuse of our court system saddens me too much.

You see, when people go into the courthouse for “regular” lawsuits over real wrongs and real injuries, it is the high-profile nonsense that jurors will have have read about. It’s the nonsense lawsuits — the outliers — that get all the attention, and they get it for just that reason, they are outliers. And that taints the jurors’ perceptions of the justice system, and makes everyone more cynical about how our judicial system operates.

Jeb Corliss and Debrahlee Lorenzana may have made fools of themselves,but they have hurt others who actually need access to the courts.

May 27th, 2010

“Pants” Pearson Loses Again

Roy “Pants” Pearson, who infamously sued a dry cleaner for a lost pair of pants for $65M, only to reduce it later to $54M, and still managed to lose for some reason, has lost again. This loss was in the US Court of Appeals regarding the loss of his job. He claimed he was denied reappointment because of his complaints about the peer review system in place at the D.C. Office of Administrative Hearings. You can read more details here: “Pants Judge” Pearson Loses Appeal in D.C. Circuit.

While it’s tempting to crack jokes and endlessly take rhetorical spins on pants suits and whatnot — I leave the to Kevin Underhill, see Judge Who Lost Pants Forced to Rely on Briefs — the fact is that this is a very serious matter. Here is why:

This was a classic frivolous case, or at least, the damages claim was frivolous. But the real problem is that outlier suits like this — those wacko ones that we read in the press — are then used to argue for tort “reform.” It has long been the strategy of those that wish to dismantle the civil justice system by using such outliers to deprive justice to those with meritorious claims.

Previously:

Pants Lawsuit Ends in Victory for Dry Cleaners (6/25/07)

Trial Lawyer Group Makes Ethics Charge In Dry Cleaning Case (5/9/07)

All Hemmed Up Over My Pants Rant (Kia Franklin @ Tort Deform (6/19/07)

December 10th, 2009

NY Doctor and Lawyer Sanctioned For Suing Opposing Expert-Physician

A doctor that has thrice been sued for medical malpractice, with the same expert coming in against him all three times, got fed up and sued the opposing expert, claiming fraud. For his troubles in the unusual suit, both he and his attorney have been socked with sanctions by a New York judge.

The decision by Justice Marcy Friedman in Cattani v. Marfuggi, filed last week in New York County Supreme Court (our trial level court), ripped both Dr. Robert Cattani and his counsel Richard Paul Stone, for bringing an action she deemed frivolous. Because of an “overwhelming body of case law, reiterated repeatedly by the appellate courts of this state,” against such suits, Justice Friedman sanctioned both lawyer and doctor $1,000, and has scheduled a hearing for them to come back to determine reasonable legal fees to be paid.

Judge Friedman reiterated the long-held position that “statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.”

During the pendency of the action, Justice Friedman said that she took Mr. Stone aside in chambers and warned him of the potential for sanctions if he didn’t drop a suit that could not be maintained, but that Stone informed the court his client wanted to go forward.

The standard for frivolous conduct is well known here, and is set forth in our rules of court (22 NYCRR 6 130-1.1[a]). Conduct is frivolous if it “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.”

Lesson to be learned: Learn to say no to potential clients with crazy claims. There is nothing to be gained by bringing frivolous suits, and much to be lost. A successful law practice isn’t made simply by hoping you might win the case, but by learning which cases not to take.

October 30th, 2009

Monster Energy Drink’s Monstery Conduct – Just In Time For Halloween

Monster Energy Drink’s lawyers seem intent on living up to their product’s monster name. Since I consider frivolous legal conduct to be within my wheelhouse, and this evening being Halloween eve, I thought I would look at the monstery conduct of Hansen Natural, the billion dollar company that makes this brew.

Could this company really have issues in this scary season, or am I just trying to piggy-back a play on names today? You be the judge:

In one act of brilliance, the legal wizards thought it would be a fine idea to send a take down notice to a beverage reviewing website. The site is actually called BevReview.com, making it pretty clear at the outset what their focus is. They reviewed the product. And they trashed it:

The color of the drink was dark yellowish… I guess you could call it amber, but who really knows. Think apple juice with a somewhat red tint. As for the taste, well… it was odd. Think citrus + medicine. Yum! There wasn’t a lot of carbonation (which reminded me somewhat of how Vault is being positioned as a hybrid soda/energy drink). The aftertaste was somewhat bitter, rather acidic. Not really pleasant, to tell you the truth. I actually couldn’t quite place what the heck the flavor actually was. It starts out smooth, and then the aftertaste kicks in and ruins it. (Of course, this might also have to do with the fact that sucralose is listed as an ingredient.)

Overall, the taste was weird and I don’t think I’d want to drink this again.

No problem, right? Except that their chief legal eagle, Darlene R. Seymour tried to scare the crap out of this little web site by threatening them with a lawyer letter. Perhaps she missed the class on that First Amendment thingie. The web site posted the letter, apparently telling Hansen to take the proverbial long walk on the short pier.

And in another attempt at making its name synonymous with evil, the billion dollar company sent a cease and desist letter to the tiny Vermont Rock Art Brewery for trademark infringement for making Vermonster Beer. Hansen thought there might be some confusion in the marketplace, despite the fact that they don’t even make beer.

But that didn’t work out so well either, as the brewer fought back with a viral marketing campaign including a YouTube video hit. The owner went with the Web Defense under the assumption that the legal defense, while clearly winnable, would bankrupt his tiny brewery. So instead of waiting for the economic end game to hit him, he went after the giant.

In one of the great David v. Goliath battles of the web, which ended with a fast win for the brewery, the brewer turned the tables on the mega-monster when Hansen distributors started to boycott Monster Energy. Instead of punishing the brewer with legal fees, Hansen was now being punished with its products being pulled from shelves.

And others chirped in that, by the way, their stuff tastes like camel piss. Welcome to the web, Hansen.

So instead of pounding the brewer into salt, it was Hansen that got pounded. Just check some of these links out:

Corporate monster picks on ‘Vermonster’:

Where are those lawsuit reform groups when you really need them? You know, such outfits as Citizens Against Lawsuit Abuse that are always squawking about “frivolous” lawsuits and demanding new laws to prevent people from suing big corporations.

Some Kind of Monster: Vermonster vs. Monster:

All of this got me thinking. I seem to remember a lot of monsters throughout history. These monsters have no problem with Rock Art’s Vermonster or Monster energy drink co-opting their name and hopefully when they call for a jury of their peers, some of them will sit on that jury.

A Corporate Monster vs. “the Vermonster”:

Chance are that you’ve seen ads, letters-to-the-editor, op-ed pieces and other materials put out by outfits with such civic-sounding names on Citizens Against Lawsuit Abuse. By whatever name, the message is always the same, usually delivered in a sort of urgent, basso profundo voice saying something like this: “Bloodsucking lawyers are constantly filing frivolous lawsuits against beleaguered corporations.
MONSTER Mash: Analyzing MONSTER ENERGY v. THE VERMONSTER:

I would predict an outcome in favor of Rock Art. The fact is, Hansen is far from the first to use or register a MONSTER-formative mark for beverages.

Why Monster’s Trademark Claims Against Vermonster Stink

Hansen’s argument, however, is weak for several reasons. First, why would anyone believe that a product named “VERmonster” — a mark alluding to the state of Vermont — is affiliated with Monster energy drinks? Second, the term “monster” isn’t exactly distinct to Hansen’s energy drink. In fact, we correlate the term “monster” with so many things (e.g., job-searching websites, creatures in Loch Ness, etc.). Third, while some energy drinks have moved into the alcoholic beverage market, none of them have yet entered the beer market. For these reasons, it’s doubtful that Hansen has a viable argument that Rock Art’s “Vermonster” causes a “likelihood of confusion.”

And in a note to the shining legal talents that represent Hansen, you should note that my mockery of your product in the image shown here also falls within the ambit of First Amendment protection. (Both ass sweat and camel piss are, as far as I know, natural products, which you seem to tout in your drinks, so I figured you’d appreciate that. You might also like the trailer for Booty Sweat Energy Drink, but that would require an actual sense of humor.)

Perhaps you think my comments may lead to some confusion in the marketplace as to your actual ingredients. But that’s unlikely, since I don’t presume that readers of this blog are total morons.

I know that I shouldn’t have to explain that to you, and that is should be readily apparent to all lawyers (and in fact, everyone that made it out of high school), but you guys do seem to need a bit of help in that department.

October 23rd, 2009

Move Over Pants Pearson, Here Comes the Hanes Underwear Lawsuit

Another victory for the tort “reform” movement. Albert Freed wanted to sue Hanes because of a claim that his underwear gaped open and hurt his penis (and he didn’t do anything about it). It’s notable that he represented himself, since apparently no lawyer would have been moronic enough to touch it. (Not the plaintiff–>>)

This spectacularly stupid lawsuit (coming to us by way of Above the Law, where there will no doubt be abundant commentary that is NSFW) had its origins in a two week vacation to Hawaii, and new briefs that the plaintiff’s wife bought for him. He testified that they gaped open at the fly, that this was apparent to him on the second day of the trip, that he got an abrasion, that he did nothing about it for two week, that he didn’t even look at himself, and that some topical ointment cleared the problem up in a day or two when he got home. He brought suit for defectively manufactured briefs.

Previously I’d written about Roy “Pants” Pearson and his $54 million case against a dry cleaner for his lost trousers. OK, pretty much everyone in the world had written about that one. But Freed can now take his place beside Pearson in the pantheon of public humiliation over ill-considered lawsuits. Pearson probably still has the lead here based on the fact that he is an attorney, but still, Freed has given him a run for his money.

Why did Freed do this? I’m going to take a shot at this here: He won the trip as a reward for selling $20,000 of diet products. Yet he weighed 280-290 pounds. Perhaps he thought he could sell anything to anyone.

Why do tort “reformers” like these kinds of nutty suits? Because the corporate-run movement is based on anecdotes and not empirical evidence. If the U.S. Chamber of Commerce trots out a few losers like this, then they think they can make headway into closing the courthouse doors to legitimate suits. It is rare suits like this that make news, not the legitimate suits that are “ordinary” by comparison and that make up the bulk of the cases in the courthouse.

On a final note, you really have to read footnote 3 to the opinion, about the lawyer sitting in the gallery “minding his own business” who was suddenly called as an expert witness, since he was the only male available that was watching the proceedings that was not involved.This was a “prominent” local defense lawyer who was “conscripted” into the proceedings to talk about “penile discomfort.” The court declined to name him, but acknowledged the lawyer was a “good sport” about it.
Opinion via ATL:/Freed-v-Hanes.pdf

Links to this post:

Handling a Products Liability Case on the Fly
I must confess I have never spent a lot of time thinking about men’s underwear. Thus, it never crossed my mind that a products liability case could arise from men’s underwear of any type. Women’s underwear are different. …

posted by [email protected] (John Day) @ October 26, 2009 5:46 AM