Hello, hello, hello, Game Show fans! My, what a great crowd we have today. I’m your host, Wink Marshall, and today our contestants are going to compete for Most Unethical Law Suit. As always, you, our home audience, will decide who get the prize, a lifetime supply of extremely expensive boloney, courtesy of our sponsor, Oscar Meyer. Are you ready? Then, let’s meet our contestants! First, heeeere’s…
Andrew Rector!
You remember Andrew, right? In June, I wrote…
ESPN cameras caught Andrew Rector sleeping in his seat in the fourth inning of the April 13 Boston Red Sox-New York Yankees game. In the time-honored tradition of TV play-by-play when something funny, weird or, most especially, sexy is spied in the stands, ESPN commentators Dan Shulman and John Kruk began making fun of him. The clip ended up on YouTube, naturally, and thus on various sports websites, followed by the various idiotic, cruel, gratuitously mean-spirited insults, usually composed by brave anonymous commenters. …Let me say for the record that picking fans out of the crowd at sporting events and making fun of them, whatever they are doing, is generally a rotten thing to do. I know: it’s public, you know you might be on camera, and the fine print on the ticket stub puts you on notice. Unless, however, the conduct involved is actually newsworthy or despicable (as in instances where an adult has snatched a baseball from a child), the Golden Rule applies. …Unfortunately, Rector, whose name was unknown and whose sleeping form would have been quickly forgotten, decided that his humiliation was so great that he needed to sue…for $10, 000,000. Rector filed the suit against ESPN, Shulman, Kruk, the New York Yankees and Major League Baseball…and asks for damages for defamation and intentional infliction of emotional distress, citing malicious and false statements said about him,including that Rector is “a fatty cow” that represents a “symbol of failure.” …None of the defendants actually said any of these things (“fatty cow”?). Rector’s suit is apparently making the creative legal argument that ESPN’s mild mockery seeded the vicious mockery elsewhere on the web.
Welcome back to Ethics Alarms, Andrew, old friend! Try to sta awake, now! Has the Streisand Effect kicked in yet? We’re doing what we can to help!
Now let’s meet someone completely new to Ethics Alarms, Contestant #2,
Isabella Tanikumi!
I’m sure you all saw “Frozen,” that cool ( Har!) Disney animated film about two princesses and sisters whose relationship is shattered when one of them isolates herself in an ice castle she magically created. That’s exactly what happened to Isabella! Well, not exactly, but she claims that the movie was based on her life because Disney plagiarized 18 specific instances from her autobiographies “Living My Truth” and “Yearnings of the Heart.” The $250 million lawsuit, which Tanikumi filed in U.S. District Court, also demands that Disney immediately stop promoting and marketing the film. It is true that the memoirs and “Frozen” are set near snow-covered mountains, and involve the relationship between a pair of sisters (but then, so does “What Ever Happened to baby Jane?”). In both, one sister does cause the other to be injured, and hides away. Also, one of the sisters in Tanikumi’s book has suitors named Hans and Cristoff, while in “Frozen,” Anna is romantically involved with Prince Hans and ice harvester Kristoff. (Bert and Ernie in Sesame Street are named after the cabbie and the cop in “It’s A Wonderful Life.”) However, Tanikumi’s self-published memoirs, which had sold about 6 copies before tha laws suit (apparently all to Disney writers) contain no instances of magic, talking snowmen, trolls, people freezing solid, spell-breaking kisses, and most the other key components of the Disney film, which was based on the Hans Christian Anderson story “The Snow Queen.”
Welcome, Isabella! I bet you are hoping for the Streisand Effect, to sell some of those dang books! You never know, though; ol’ Walt’s gang may just write you a check to put this lawsuit on ice!
Alright, then: now we’re going from “Frozen” to our final contestant, and he’s hot—but not TOO hot, as you will soon understand why. Meet our third competitor,
Shayn Proler!
Shayne was once a captain in Houston’s fire department, but he began to avoid to entering buildings that were on fire. After this happened for the second time, he was moved from the first suppression fire fighting team to the department’s training academy, where he could teach student firemen how to fight fires with actually having to do it. (You know the old saying about teachers.) Mr. Proler fought that ruling, however, and got himself moved back to fire suppression. Then he sued, alleging that his fear of fire was protected by the The Americans With Disabilities Act (ADA), fighting the good fight for future surgeons who can’t stand the sight of blood, dog groomers deathly afraid of pooches, Wallendas with acrophobia, and one-legged Tarzans. An appellate court even awarded him more than $360,000 in damages—oh-oh! Winning a lawsuit could be a real handicap in this game, Shayne!–but Houston v. Proler was overturned by the Texas Supreme Court, which said, in its majority opinion (I’m paraphasing) “You have to be frickin’ kidding me!
All right, audience! You’ve met Andrew, Isabella and Shayne, and have heard about their lawsuits. Now it’s all up to you! It’s time for you to…
Pick The Most Unethical Lawsuit!
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I’ll step out of character here to make a few observations. All three of these cases were flagged (among others) by the U.S. Chamber of Commerce’s Institute of Legal Reform to illustrate the need for litigation caps and reforms. I used to work with the Chamber on this very issue, but I don’t agree with its position; the cure they want would be worse than the disease. However, COCUSA is correct that there are a lot of terrible law suits out there, and that the cost to the economy—the Chamber says 300 billion a year—is crippling.
Andrew Rector’s case is the closest of the three to a frivolous case, a case so ridiculous that it amounts to a legal ethics violation for a lawyer to bring it to court. I explained why in the original post. It is also the stupidest of the three suits, because he is claiming public humiliation, and his law suit is bringing him more ridicule and abuse….all deserved.
Isabella Tanikumi’s case is the most sinister, because it reeks of someone trying to hold up a big corporation for a settlement in a nuisance suit that can’t possibly be won. The court cases in this category are not entirely consistent, but her odds are ridiculously long. She could win, but an ethical lawyer would try to dissuade her from trying, because the end result is likely to be lawyer fees and little else. Chuck Wepner, the “Bayonne Bleeder” who was a pug boxer pulled from obscurity to fight Muhammad Ali for the Heavyweight Championship, inspired the nation when he became the first challenger to knock “The Greatest” down, and then bled his way to the end of the fight, going the distance with the champ. Does that story remind you of a famous movie? Well, Wepner sued Sylvester Stallone for “plagiarizing his life,” and lost—and “Rocky” didn’t have a talking snowman.
Shayn Proler has some gall, I’ll say that for him. Unfortunately, ADA lawsuits are often ridiculous, and often win anyway. In the post where I found these cases, the Chamber writes that “The Americans With Disabilities Act (ADA) is a noble piece of legislation intended to prevent discrimination against those with disabilities.” This made me laugh out loud. This overly broad law, part of Jimmy Carter’s dubious legacy, does as much harm as good, and when it was proposed, the Chamber fought against it with all guns blazing. The Proler case is a good example of why. It’s absurd to argue that a fire department should have to accommodate a firefighter who develops a fear of fire, but the law makes that result possible. It’s not an unethical lawsuit. It’s just a really, really, really stupid and annoying one. An ethical fireman wouldn’t bring it. But he might win.
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Pointer: Prof. Bainbridge
Source: U.S. Chamber, Daily Telegraph
Ethics Alarms 
1 is getting a big pile of karma payback, so it would be unfair to give it a prize and leave the others without them.
2 is not creative enough. Had she been Wiccan who invoked winter sprites we may have a case, but it is too pedestrian for our audiences tastes.
3, now we’re talking! The gumption, the courage, the irony! Give that man reality show. Even better if we can turn him into an arsonist and show that on National TV. The definitive winner.
Oh, you were asking about the most unethical lawsuit. I thought you wanted us to pick the most likely media darling.
As a person with a number of disabilities, including a genuinely crippling phobia, I’d have to go with Mr. Proler. The purpose of the ADA is to allow people with disabilities to do things they can reasonably do, given reasonable accommodation. Certain disabilities simply can’t be reasonably accommodated in certain lines of work, and that’s just an unfortunate fact of life. It seems to me Proler’s employers did attempt to meet the ‘reasonable accommodation’ standard – they gave him a job, an important one, where his skills would be put to good use without triggering his phobia. By demanding that he be allowed to work on the front lines as a firefighter, he’s endangering the lives of the coworkers who need to be able to depend on him in a life-or-death situation, the lives and property of local citizens who reasonably expect emergency personnel to be able to do their jobs, AND the welfare of people with disabilities, especially mental disorders, who have to put up with enough stigma and ignorance already without this jerk coming along and giving the public one more reason not to take us seriously. If his phobia of fire was the result of something that happened to him on the job, and he was suing over being relegated to a lower-paying job after having given his all in good faith and come away traumatized, I’d be a little more sympathetic. But the fact that he wanted his old job back in the first place makes me wonder if his fear of fire even meets the diagnostic criteria of a phobia. Hestitating to run into a burning building is normal – that’s why we all admire those with the courage and self-discipline not to hesitate. True phobias are consuming and irrational – that’s what sets them apart from a healthy fear response and can make them, in certain circumstances, disabling. A true pyrophobe wouldn’t be asking to go back to the front lines. A true pyrophobe probably wouldn’t be able to work at the training academy either because spending the whole day thinking about fire, talking about fire, watching videos about fire, surrounded by firefighting paraphernalia would be pure psychological torture. It seems to me this guy is just a garden-variety wuss when it comes to fire. And so am I, but I don’t go around calling it a phobia that deserves special consideration as a disability. As for the genuine phobia I do have, I don’t need anyone to accommodate or compensate me for it, because any line of work in which such accommodation might conceivably be called for is too close for comfort already.
Truth…I believe that is what the court ended up saying. Fear of running into a burning house does not qualify as a disability. It’s actually very rational to fear running into a burning house.
My write-in on the ballot is the Houston vs. Proler appellate court.
The ADA isn’t as broad as that, and as Truth told it: Proler may have a mental disability (and his lawyer(s) an ethical one?) but it has nothing to do with his job.
*[I wanted to say the ADA was broad as a broad should be broa ah ah ah ah ahhhh! but I wouldn’t do a thing like that.]
Oh, come on: quotes from “South Pacific” are always welcome here!
Sure. I know how much you love being told “You’ve got to be taught…”.
Ugh. Oscar’s preachiest song from his most irritating character.
I loved that movie you mentioned, “Whatever Happened to Baby Jane.” I saw it when I was a little kid (with my parents – I guess they couldn’t afford a babysitter, or couldn’t find one because I was such a brat). I knew I would be in trouble if I told them I liked the movie, so I kept quiet. But I honestly felt the movie validated the wrongness of how one of my siblings had been treating me. (not including that one time the sibling literally saved my life)That sibling went on to a brief, successful (even honorable!) political career.
But, I’m gonna have to sue, because it’s too obvious that the old movie ripped off the material for my upcoming biopic, “Whatever Happened to Lucky Baby Eeyore.”
I vote for the phobic firefighter – a true hero to politicians who suffer the obvious injustice of being voted out of office.
Number one is your garden variety wanting the golden ticket for snowballing a Streisand effect. Number two was a contender. While there is a truism in writing that there is only a handful of basic plots, no one can claim to own something with such a slight a resemblance. She’s hoping to get the publicity benefit of the Streisand effect, so I hope this slips further into obscurity.
The last of these sad, deluded people is poisoning the well for all the others who seek that reasonable accommodation. I’m sorry he lost his nerve, but a teaching position WAS the reasonable accommodation. And he and the cost of fighting this is harming the public he swore to protect by removing resources because he is UNWILLING to face that he cannot continue. Like it or not, but many jobs require the strength and energy that fades. His ego apparently cannot accept that change and he sues. This isn’t being the town librarian or an accountant where aging isn’t as pressing an issue. Suing, even at great cost to his neighbors, won’t make that merry-go-round go backwards that he can go and get that rush again.
He would have helped himself and society more by becoming a great teacher and taking up bungee jumping for the adrenaline.
Shayne Proler. Anyone with the gall to insert himself into a major fire department while knowing he has pyrophobia (?) is a both a burden on his team mates and a hoaxer from the get-go. If he had had the smarts to pull this off in a California FD, he might have gotten away with it. Not in Texas!
I go for Shayne Proler as well mainly for the damage he could have done by actually winning at the Supreme Court level. Most fire departments don’t seem to have a vast amount of excess staff or money. He is asking to be paid to be a first responder who won’t respond. That puts people’s lives at risk and he seems to have no problem with it. The fact that an Appellate Court sided with him blows my mind.
The other two suits seems to be narcissistic people who want their 15 minutes of fame. If Rector wins, announcers will probably have to stop making fun of people in the stands. If Tanikumi wins, movie studios will more carefully document where they get their ideas or Disney will get Congress to pass a law that says you can’t sue for that anymore.