Federal Judge Deals Blow To PETA’s Legal Monkey Business


Photo used with permission. Credit: ©Wildlife Personalities/David J Slater


















Wildlife photographer David Slater has braved some of the most inhospitable jungles around the world and has even been picked at by wild monkeys. However, nothing this British adventurer has done in the wild could have prepared him for the experience of being sued in the untamed American courts by an animal rights group, which is exactly what happened last year.

First, some background. In 2011, Mr. Slater was on the Indonesian island of Sulawesi photographing a species of monkeys called macaque. He was attracted to the animals because of what he describes as their “very human-like characteristics” and because they are very inquisitive and clever. Some of his pictures of them can be viewed on his website. Their inquisitiveness would ultimately attract the monkeys worldwide fame and, unfortunately, make Slater a target of a ridiculous lawsuit.

One day, while following a group of macaque, Slater put his camera on a tripod with a wide-angle lens and configured the settings such as predictive autofocus to give him a chance of a facial close up. As Mr. Slater explains, the monkeys seemed to love the shutter noise, and soon, they were grinning, grimacing and baring their teeth at themselves in the reflection of the large glassy lens.

Eventually, one of the monkeys pressed the shutter button while looking into the lens and captured a human-like smile that would charm everyone who saw it. The image went viral. In the weeks and months that followed, it did exactly what Slater had hoped it would do while he was trudging around the uncomfortable rainforest: raise awareness of the plight of this endangered species and provide him with some much-needed income. Slater holds a copyright on the photo that is valid in both the United States and the United Kingdom, and this is important for reasons mentioned below.

The photo eventually caught the attention of the group, the People for the Ethical Treatment of Animals, which went bananas and sued Slater. PETA claimed that the monkey in the photo, not Slater, owned the copyright to the image and should get any money generated by it.

However, Slater’s attorney, Andrew Dhuey, pointed out in his motion to dismiss the case that PETA’s “factual assertions regarding the creation of the famous Monkey Selfie Photograph” were erroneous. The image was captured only after Slater had worked meticulously to set it up.

While Slater’s work in making the photo possible is certainly important, frivolous lawsuits like this can sometimes be dismissed more quickly for other technical reasons. Therefore, his attorney argued that the monkey on whose behalf PETA was suing didn’t have legal standing. In short, he maintained that since Congress has not given non-human animals the right to sue for copyright infringement, the case should be tossed.

On January 6, federal judge William Orrick agreed and issued a proposed order granting the dismissal of the case. Case closed.

Well, maybe. NPR has reported that PETA is planning to keep fighting. And it has deep pockets.

While the hilarious image of the monkey in question has received worldwide attention, none of the reports on the judge’s action in this lawsuit have mentioned the fact that the photographer is British. This is relevant to the story because the lawsuit was filed in the United States, not Great Britain.

This kind of monkey business would never be tolerated in UK courts, or any other courts around the world for that matter. Unlike the United States, the UK has a “loser pays” legal system that would have required PETA to pay for Mr. Slater’s legal expenses if (when) it lost.

While anyone with common sense might look at this case and say PETA is foolish for filing it, the sad fact is that even PETA isn’t foolish enough to risk filing an outrageous lawsuit like this anywhere but the United States. And that should make every justice-loving American cringe.

Originally published on EpicTimes.com

♬ “It’s the Most Warningful Time of the Year” ♪

Christmas Tree warningIn 1963, one of America’s favorite crooners, Andy Williams, released a Christmas song entitled “It’s the Most Wonderful Time of the Year” that would become one of the standards of the holiday season. Little did he know that by the end of the century, the holiday season would also become the most “warningful” time of the year, too.

How so? Most of the gifts Americans will give to each other during the holidays are plastered with warning labels. In fact, there are often so many warnings that they can’t all fit on the product, so something as simple to use as a fountain pen may come with an “instruction manual” filled with warnings. And many of those labels warn us about things that are such common sense they’re downright wacky.

One of my favorites is a label found on the most popular child’s scooter sold in America. If you look closely, right on the handle bar between the grips it says, “Caution, this product moves when used.” Isn’t that the whole point of a scooter?

There is also a snow sled that warns, “Beware: sled may develop high speed under certain snow conditions.” Now, if you give your child a sled that doesn’t develop high speed when it’s used, you know it probably won’t be used much longer.

And then there is the label that was found on a live Christmas tree. It warned: “Not intended for human consumption!” What?! We can all understand the need for a warning like that on some fruitcakes, but on a live Christmas tree?

Consumer products are now loaded with warnings because product makers know that if they don’t provide them, even if the warning is about something that is common sense, they can be sued by someone who may be injured while using their product. Everyone knows that a scooter will move when a child uses it, but in America, companies are being sued even when their product wasn’t defective.

Virtually all lawsuits filed nowadays over injuries involving a consumer product have a common denominator: they claim the manufacturer “failed to warn” the consumer about a potential danger. So, even if the danger is obvious, the warning is now provided.

What many people don’t know is that these common sense, obvious warnings aren’t nearly as common in other parts of the world. As the host of the annual Wacky Warning Label Contest, I have done scores of radio and TV interviews with reporters in Europe and Asia over the years, and the most common question I get is, “Why don’t we see warning labels like this in our country?”

The answer is that the United States is the most lawsuit-happy society on earth, and these common sense warnings are put on our products to avoid lawsuits. The number of tort lawsuits in America dwarfs the number of tort lawsuits filed in any other country in the world when taken as a percentage of the national economic output. In the United States, the amount of the Gross Domestic Product that goes to tort costs is 2.2%. That’s twice what it is in Germany (1.1%) and nearly three times what it is in Japan (.8%). The United Kingdom and France spend even less on tort costs than Japan.

While there is certainly a place for legitimate lawsuits, excessive litigation has become such an everyday part of life in America that many people don’t notice it anymore. And it’s why the holiday season, in addition to being the most wonderful time of the year, is also the most warningful time of the year.

If judges and lawmakers begin telling plaintiff lawyers with regularity that personal responsibility and common sense still have a place in America’s courts, product makers won’t need to keep putting common sense warnings on their products. Until that happens, we’ll continue seeing labels like the one found on a pair of shin pads used by bikers that warns: “Shin pads cannot protect any part of the body they do not cover.”

If you find a hilarious, common sense warning on one of the gifts you receive, send it to us for a chance to win the $1,000 grand prize in our Wacky Warning Label Contest.

Fear, Not Facts, Too Often Guides Medicine

Doctor with noteDuring the busy holiday season, the last thing anyone wants to have to do is take time to visit a doctor’s office when they’re sick. However, if it becomes necessary, and you find yourself sitting in a waiting room thinking about all of the other things you have to do, be thankful there’s not one more thing you’re thinking about: being sued.

Why? Because that’s often what the doctor you’re about to see is thinking about. Or, at least, it’s one more thing in the back of her mind dictating many of the decisions she will make throughout the day. And it’s having a major impact on medicine in America today.

That’s what many physicians will tell you if you can get them to talk about practicing medicine in the most litigious society on earth. Recently, a cardiologist who also teaches at one of the top medical schools in the country took time to write about this troubling reality.

According to Dr. Kevin R. Campbell, a clinician educator and assistant professor of medicine at the University of North Carolina at Chapel Hill, the type of medicine you receive is too often being dictated by fear rather than facts because doctors often find themselves looking over their shoulder for the next lawsuit.

In a recent op-ed, he points out that:

“Defensive medicine, defined as medical decision-making and care provided solely for the purpose of avoiding malpractice litigation, accounts for a significant proportion of healthcare costs today. While striving to provide excellent care for their patients, physicians are faced with the harsh realities of our litigious society.”

In medical school, he says, physicians are taught to think like Sherlock Holmes. When a patient presents with a set of symptoms and physical findings, doctors develop a differential diagnosis (a list of possible causes) and then work to eliminate possibilities through logic and objective data. When defensive medicine is practiced, however, “this entire system is disturbed because physicians are not being led by logic and objective data. Instead, they are trying to avoid a malpractice claim.”

Practicing medicine isn’t like this for physicians everywhere, however. It’s certainly not like this in Europe. According to a 2011 survey by one of the leading survey research companies in the U.S., RAND, 99% of American physicians in high-risk specialties will face a lawsuit at least once in their careers while in Europe, that number is only 20%. Here, being sued is virtually a given. There, if you’re sued, you’re in a small minority of doctors.

Maybe that’s why the highly respected British Medical Journal decided to publish a study conducted in the United States that looks at the relationship between physician spending and risk for malpractice claims. As doctor Campbell reveals, after “hospital data for more than 24,000 physicians were sampled; the researchers found that the higher the resource use, the lower the risk for malpractice claims. In a nutshell, that means doctors who ordered more tests were significantly less likely to be sued for malpractice.”

There’s no evidence that doctors in the US are any worse than doctors in Europe. It’s our legal system that allows this. And when doctors are put in the position of having to order more tests to cover themselves in case they’re sued, the cost of health care we all pay soars.

The head of one of our nation’s largest medical schools once told me that the most expensive tool a physician uses today is not something big, like an X-ray machine, a CT scanner or a surgical robot. Rather, it’s something very simple. It’s the pen he or she uses to order tests that aren’t necessary.

Originally published on EpicTimes.com

Aunt Sues 8-Year-Old Nephew After Exuberant Hug Leads To Injury

courtroom:gavelOur “Let’s Be Fair” radio commentary this week is about a New York City woman who sued her eight-year-old nephew for $127,000 over an injury she says he caused. If you’ve already heard the commentary, you know she didn’t get the money. However, what we didn’t talk about was a ridiculous comment she made in court that may have helped doom her case, and that’s worth a minute here.

First, a little background. In 2011, Jennifer Connell travelled to her nephew’s house in Connecticut to celebrate his birthday. When she arrived, the boy leaped into her arms to give her a big hug. She fell to the ground and broke her wrist. For more on that part of the story, click here.

After her lawsuit made the news, there was quite a public uproar against the aunt’s decision to drag her nephew into court. One newspaper story even dubbed her the “Auntie Christ.” Ouch. So, in what could reasonably be viewed as an attempt to save her reputation, she went on some news shows to explain why she sued the little fella.

On the Today Show, she said she was told by an attorney that the best way for her to get money to pay for her medical bills would be to sue the eight-year-old. It was “a formality with an insurance claim.” She adores the child, she explained, and this was just a way to use the law to get the family’s insurance company to pay her bills.

What she probably didn’t bargain for, however, was the reality of having to face tough and even awkward questions in court. That’s where things took a serious turn for the worse.

On the stand, she claimed that the injury wrecked her social life and made it “difficult to hold my hors d’oeuvres plate” at parties. Can you imagine the reaction of the jurors when they heard that? Some legal observers think she may have lost the jury with that comment.

Then, her attorney had to argue that the eight-year-old was legally negligent. Yet as Brendan Maher, professor of law and director of the Insurance Law Center at the University of Connecticut School of Law, explains, the jury had to “decide whether when little Sean hugged her — and fractured her left arm in the process — he behaved like a reasonable 8-year-old, or an unreasonable, negligent one.” The professor went on to say that:

“When you are 8 years old and hugging your aunt, you are behaving like a reasonable 8-year-old.”

The jury evidently agreed, and it took just twenty-five minutes to throw out the case and award the woman nothing. Good for them.

My question is this: how did we get to the point where an attorney who has spent three years studying the law believes the best choice in this situation is to sue an eight-year-old boy who was trying to hug his aunt? Is this what our law schools are teaching these days? If so, I think I know an eight-year-old who could testify to what a poor decision that is.

Lawsuit Leads To Cancellation Of Popular Pumpkin Hurling Contest

Punkin Chunkin 5There probably hasn’t been more disappointment associated with a pumpkin-related event since the Great Pumpkin failed to show up for Linus and Sally in the beloved TV special, “It’s the Great Pumpkin, Charlie Brown.” I’m talking about the cancellation of the annual World Championship Punkin Chunkin competition in Delaware after nearly 30 years.

No, I’m not out of my gourd. This is a serious event that has had a major positive economic impact on the rural part of Delaware that has hosted the competition. As many as 20,000 fans have travelled to Sussex County in recent years to see pumpkins be launched in the air via slingshots, catapults and even pneumatic cannons.

The event started in 1986, and there’s an interesting history of the competition on the Punkin Chunkin website. Despite its enormous popularity – it was even featured on the Discovery Channel’s, Mythbusters, show – it was cancelled in 2014 and won’t be held this year, either.

Why? A couple of years ago, a volunteer was injured in an ATV accident and filed a lawsuit. Daniel Fair was a “spotter” and, along with others, rode an all-terrain vehicle through a field to help determine the distances competitors flung their pumpkins. The ATV he was riding flipped in 2011, and he suffered serious injuries. He filed a lawsuit seeking at least $4.5 million in damages.

The Wilmington News Journal reported that owner of the farm argued there was nothing inherently dangerous about the path Fair was riding on and that “its existence was obvious and known to all.” It estimates that “Fair, a repeat volunteer, drove an ATV over it 150 times between 2007 and 2011 without a problem, as did plenty of other people.”

The lawsuit was eventually dismissed, but the parties settled out of court. Of course, that started a domino effect, and now, affordable insurance for the event is impossible to find, and the farmer who hosted it won’t let it return to his property.

That’s a shame. In a news report that aired on ABC-affiliate, WMDT-TV, Delaware Senator Brian Pettyjohn noted that in addition to all of the economic benefits enjoyed by the local businesses who served the thousands of people who came to the event, Punkin Chunkin raised $50,000 for student scholarships and $100,000 for charities over the years.

To help save the event, Senator Pettyjohn introduced legislation to cap pain-and-suffering awards in lawsuits against non-profit charities sponsoring annual events, but as WMDT reported in a follow-up story, it was blocked in committee, and “supporters of the bill said lobbying by trial lawyers defeated the measure.”

So, is the Punkin Chunkin competition history? An article on the Delaware Surf Fishing website reports that “due to this lack of protection, Punkin Chunkin organizers are starting to look out of state” for a new location.

To stop that from happening, a grassroots movement called #savethechunk has now sprouted up on Facebook and Twitter, and leaders of the effort still hope to convince Delaware legislators to enact legislation that will allow the event to remain in that state.

This situation reminds me of a time when a group of citizens in Connecticut rallied to keep public bike trails open there after a lawsuit by an injured biker forced the trails to be closed. I discussed this on my blog at the time, and a groundswell of public support led by hardworking volunteers there eventually led to legislation being enacted that allowed the trails to re-open. If it could be done in Connecticut, it can be done in Delaware.

Hat tip to Walter Olson for alerting us to this story on Overlawyered.com.