Day on Torts

Seventeen veterans won judgments against Iraq for being tortured during the first Gulf War. The Bush Administration has filed a brief opposing the right of the veterans to collect these judgments. This post by Dave Lindorff has an interesting take on why the Administration would not be supporting our veterans. I don’t agree with all the statements in this post but I do think that one reason the Bush Administration has taken this anti-veteran position is because it wants to avoid similar suits by Iraqis and the prisioners in Guantanamo Bay.

Bush Torture Tort Reform: Don’t Sue, Don’t Be Sued

Back when the Bush administration filed a brief in federal court opposing the decision to award almost a billion dollars in damages to 17 Americans who had been captured and tortured by Saddam Hussein’s government during the Gulf War, it appeared to be a strange move.

The Court of Appeals just handed down a new decision that addresses the circumstances under which one may pierce the corporate veil. The case is Boyles v. National Development Company; read the opinon here.

The court affirmed the imputation of liability through the corporation to the person who set it up and ran it. In doing so, the Court re-afffirmed the application of the Allen test. The Allen test says this:

“Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.”

How many times have you seen this discovery response: “Objection; this request for production of documents is vague, ambigious, oppressive, unduly burdensome, seeks information not reasonably calculated to lead to the discovery of admissible evidence, and seeks the discovery of material protected by the attorney client privilege, the work product doctrine, and the Magna Carter. Notwithstanding this objection and without waiving the same, a paralegal intern with 20/400 vision and no knowledge of the facts of this case or the law has gone to a warehouse (with a non-fat latte in hand), stared in the general direction of scores of unmarked boxes containing unknown documents and has determined that there probably isn’t anything in any of those boxes that you want. We promise. If you file a motion to compel and ever get an order to look at these documents, you can go to our warehouse in Burning Stump, Georgia between the hours of 12:00 Noon and 3:00 p.m. on any Friday, Saturday or Sunday in July for a inspection. As a professional courtesy you are advised that there is no air conditioning in this warehouse and the closest photocopier is 23 miles away.”

Well, maybe you haven’t got that objection. But you have seen lots of objections to discovery, including those that did not attach a privilege log. One federal appellate court has ruled that, under the facts of that case, the failure to produce a privilege log was a waiver of the objection.

The case is Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 2005 WL 730193 (9th Cir. 2005). Read the decision here.

Here is an interesting article published by the ABA called “Dealing With Difficult Clients.” The article is a condensed version of a 14-page paper on the same subject. The author is Carole Curtis, a lawyer from Toronto.

I recommend both, especially the 14 page paper. It is a helpful reminder.

You have got to hand it to Wendy’s. When someone points the finger at the quality of their food, they don’t just wave it off.

Anna Alaya has been arrested in Vegas and will not fight extradition to California. However, the police have not be able to identify whose finger found its way into Alaya’s chili and to date have not announced that they have any direct evidence that Alaya put it there.

Of course, the legal commenatators are all over this – is there enough evidence to convict Alaya? Will the facts about her litigation history get into evidence? Will she go to jail or will she just get her (4 finger, one thumb) hand slapped?

Forbes has written an article on Dr. Gary Ordog, an expert witness who testifies in mold cases. Click here to read the article. The article is not very flattering.

I must confess I have always been a little concerned about these cases. I do not believe that being in the presence of mold does you any good, but the causation is so difficult in these cases that I have stayed away from taking personal injury cases based on mold exposure. I think property damage claims have potential here – people are so afraid of mold (and the clean up cost is so high) that the failure to disclose mold, prior water damage, etc. is a very viable claim.