Friday, October 31, 2014

BP: New evidence backs call to oust spill claims czar

BP: New evidence backs call to oust spill claims czar: "NEW ORLEANS --

BP is turning up the heat in its efforts to remove the claims administrator it blames for "hijacking" its multibillion-dollar oil spill damage settlement with individuals and businesses.

It presented emails and billing records it says prove that Patrick Juneau helped individual claimants in their disputes with BP during his time as a contract lawyer for the state of Louisiana, prior to becoming a neutral administrator of BP's settlement with some of those same claimants.

 The oil giant first asked a federal judge in September to oust Juneau, the Lafayette lawyer BP and plaintiffs jointly supported two years ago to run the court-supervised economic settlement claims program.

 BP said then that it had learned, belatedly, that Juneau had a contract with the state of Louisiana in 2010 and 2011 advising the government about BP's pre-settlement claims process, run by Ken Feinberg. The company said Juneau's work for the state had been adversarial to BP and his failure to disclose it during the process of selecting a settlement administrator should disqualify him from continuing in that role.

 Juneau responded earlier this month by arguing that BP was not being "candid" with the court, was taking some of his comments out of context and was mischaracterizing his work for Louisiana. He called himself simply a "liaison" who "did not serve as a lawyer in the matter in controversy.""

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J&J may settle another group of ASR metal hip implant cases

J&J may pay $250 million more to settle ASR Hip Implant Cases/Bloomberg BusinessWeek
by Jeff Feely
Johnson & Johnson (JNJ:US) may pay more than $250 million to resolve suits over its ASR hip implants that were excluded from a $2.5 billion settlement of similar claims last year over the device’s failure, two people familiar with the accord said.
J&J, the world’s largest seller of health-care products (JNJ:US), is weighing whether to settle more than 1,000 lawsuits over removals of the recalled hip implants that occurred after August 2013, said the people, who requested anonymity because they weren’t authorized to speak publicly about the accord. The hips were made by J&J’s DePuy unit.
The company is considering extending the same settlement terms that covered patients who had their ASR implants removed earlier than last summer, the people said. Under that accord, J&J agreed to pay an average of about $250,000 per surgery and cover related medical costs to resolve about 8,000 cases.
“This is a sign that J&J is trying to get a solid handle on its whole ASR problem,” said Carl Tobias, who teaches product-liability law at the University of Richmond in Virginia. “They are not done paying yet, but they are moving in the right direction.”
If J&J resolves the additional suits, it will have settled about 75 percent of its total U.S. caseload. The total cost of the settlements over ASR, which stands for articular surface replacements, may exceed $4 billion by the time J&J resolves the remaining implant cases, Tobias said. The accord doesn’t cover hip litigation outside the U.S.

Hip Implants

J&J and DePuy recalled 93,000 ASR hip implants worldwide in August 2010, saying 12 percent failed within five years. Internal J&J documents showed 37 percent of ASR hips failed after 4.6 years. The failure rate in Australia in 2012 was found to be 44 percent over seven years of use

Thursday, October 30, 2014

Put Texas voting back under Federal Supervision // Richard Hasen

Messing With Texas Again: Putting It Back Under Federal Supervision:
By Richard L. Hasen (UC Irvine)
 Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important.
The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules.
It may be much more important than the ruling on the voter ID law itself. From 1975 through 2013, Texas was one of a number of (mostly Southern) states and jurisdictions which were subject to “preclearance” under Section 5 of the Voting Rights Act. This meant that before Texas could make any changes in its voting rules (such as enacting a voter identification law or passing a new redistricting plan) it had to demonstrate either to the United States Department of Justice or to a three-judge federal court in Washington D.C. that its change was not intended, and would not have the effect, of making minority voters worse off."

Wednesday, October 29, 2014

One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism by Martin H. Redish, Julie M. Karaba :: SSRN

"MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law....
The most immediate response to reliance on the utilitarian calculus is that it completely ignores any concern with individual dignity or autonomy, which are properly deemed to provide the theoretical DNA of the Due Process Clause...
Whereas class action in every case requires a transparent judicial finding of adequate representation of the interests of absent claimants, MDL has no such requirement.  Whereas in most class actions absent class members have the right to opt out of the proceeding, MDL provides no means either for withdrawing from the proceeding or even meaningfully challenging the legality or propriety of inclusion within it. "
- Redish & Karaba

One Size Doesn't Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism by Martin H. Redish, Julie M. Karaba :: SSRN:

"Multidistrict litigation (“MDL”) has, in recent years, become so central a device in complex litigation as to be almost routine. As authorized by federal statute, the Multidistrict Litigation Panel of federal judges regularly transfers cases which may share no more than one common issue from federal districts all over the nation into a single transferee district. The transferee court is then in charge of all pre-trial procedure for all of the cases on a collective basis. This includes conduct of discovery as well as pre-trial motions, including summary judgment.

While the transferee district is not permitted to adjudicate the merits of the individual suits at trial (other than in the form of several test cases, binding only on the specific litigants involved), as a practical matter cases return to their transferor districts very rarely. Instead, there is constant pressure to form a global settlement. While individual claimants may opt out of that settlement, the settlement usually effectively ends the process.

The claimants’ pre-trial cases are controlled by an appointed steering committee of selected attorneys.

Although much has been written on the subject of multidistrict litigation, none of that scholarship to this point has directly challenged the constitutionality of the process. This Article, in contrast to all prior scholarship, conducts a frontal assault on the constitutionality of MDL as a stark violation of the individual claimant’s due process right to her day in court. In so doing, the Article explores the underlying political and constitutional theory of a litigant’s right to her day in court, and explains how current MDL practice unambiguously undermines that right.

MDL amounts to a strange cross between The Wild West and political smoke-filled rooms of the twentieth century — hardly a combination that augurs well for either due process or the rule of law. The Article considers and rejects the supposed utilitarian values of efficiency attained by use of MDL as an asserted justification for the serious interference with the individual’s control of her own case.

In making its case against the constitutionality of MDL, the Article contrasts the methods by which class action procedure — itself subject to several challenges over the years on due process grounds — seeks to protect the due process rights of absent class members. The Article concludes that whatever due process problems impact class actions pale in comparison to the dangers deriving from the crude form of procedural collectivization imposed by MDL. The Article ends with an exploration of ways in which MDL’s constitutionality might be salvaged through important modifications in its processes."

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Monday, October 27, 2014

Deaths linked to GM's faulty ignition switch rise to 30 | Reuters

Deaths linked to GM's faulty ignition switch rise to 30 | Reuters: "(Reuters) - A program that compensates victims of accidents caused by a faulty ignition switch in General Motors (GM.N) vehicles has approved one new death claim, bringing to 30 the total number of fatalities linked to the issue so far, according to a report on Monday.

Since it began accepting claims on Aug. 1, the program has received 1,580 claims for deaths and injuries, said the report from the office of attorney Kenneth Feinberg, who was tapped by GM to run the program. The report listed all of the claims received and approved as of Friday.

GM has been criticized for waiting 11 years to begin recalling millions of cars with ignition-switch problems that have been linked to fatalities."

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Sunday, October 26, 2014

Mandatory Quarantines Have Negative Consequences//Dr. Fauci, NIH Director

NIH Official: Mandatory Quarantines Have Negative Consequences:

"The best way to protect us is to stop the epidemic in Africa, and we need those health care workers so we do not want to put them in a position where it makes it very, very uncomfortable for them to even volunteer to go." he said.

He said active and direct monitoring can accomplish the same thing as a quarantine because people infected with Ebola do not become contagious until they start showing symptoms. Ebola is transmitted through direct contact with the bodily fluids of an infected person.

New York, New Jersey and Illinois imposed mandatory quarantines after Dr. Craig Spencer, a Doctors Without Borders physician who treated patients in Guinea, was diagnosed with Ebola last Thursday. The doctor, who is now in isolation at New York's Bellevue Hospital, had been on the subway, went bowling and to a park and restaurant before showing symptom
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Friday, October 24, 2014

Johnson & Johnson wins first Pinnacle Hip Implant Trial

Johnson & Johnson's DePuy wins first trial over Pinnacle hips | Reuters
By Jessica Dye and Lisa Maria Garza Oct 23 (Reuters)

 Johnson & Johnson was found not liable by a Texas jury on Thursday in the first case to go to trial over whether Pinnacle hip implants made by the company's DePuy Orthopaedics unit were defective.

The test case had high stakes for the pharmaceutical giant, which is hoping to avoid a replay of a $2.5 billion settlement it agreed to last year for a different metal-on-metal hip device.
The Dallas federal jury ruled unanimously against the plaintiff Kathleen Herlihy-Paoli, who said the two metal-on-metal Pinnacle hips she received in 2009 were faulty and that the company failed to warn patients and doctors about the device's risks.
DePuy had said the implants were improperly positioned, and not to blame for her injuries. Jurors needed about two days to deliberate, after a seven-week trial.
Plaintiffs' lawyers selected Herlihy-Paoli's lawsuit to be among the first to go to trial out of more than 6,600 lawsuits over the Pinnacle hips. The unanimous win for DePuy is expected to affect its approach to the rest of the lawsuits, which are consolidated before U.S. District Judge Ed Kinkeade.
DePuy spokeswoman Mindy Tinsley said the company was pleased with the verdict and was committed to the "long-term and vigorous defense" of the litigation.
The metal-on-metal device "was appropriately developed, thoroughly tested and responsibly marketed," she said in a statement.
A lawyer for Herlihy-Paoli, Mark Lanier, called the case "the first skirmish in what is likely to be a long war."
"We still plan to press on with fierce dedication to clients we believe have been tragically wronged," he said.
Herlihy-Paoli said she required multiple surgeries to fix and replace her implants after the surrounding tissue became infected and the level of the metal cobalt in her blood soared to 85 times the normal level.
Her 2012 lawsuit said the device's metal components rubbed together, shedding metal ions.
At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.

DePuy's lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company's ASR devices.
At trial, lawyers for Herlihy-Paoli accused DePuy of aggressively marketing the devices to more active people, while concealing abnormally high failure rates.
DePuy's lawyers countered that the devices were safe when used and implanted properly. They also said Herlihy-Paoli unfairly targeted DePuy for problems linked to different metal-on-metal hips, such as the company's ASR devices.
Last year, DePuy agreed to pay $2.5 billion to settle more than 7,000 lawsuits over the ASR devices, which it recalled in 2010.
DePuy stopped selling the metal-on-metal Pinnacle devices in 2013.
Carl Tobias, a University of Richmond law professor, called the verdict surprising and said jurors may have responded to DePuy's argument that the hips may have been improperly positioned.
"They can take some comfort in this verdict," he said, referring to DePuy. "But I'm sure there will be more."

The case is Herlihy-Paoli v. Pinnacle, U.S. District Court for the Northern District of Texas, No. 12-4975.

Thursday, October 23, 2014

O'Reilly: OK, Jon Stewart Was Right About One Thing In 'White Privilege' Debate

Our first Levitt house on Pond Lane
looked just like this one
We grew up in Levittown, Bill O'Reilly and I.  We both went to Catholic high schools - he at Chaminade in Mineola, me at Brooklyn Prep.  Growing up in an all-white town I never spoke to a Black person until I was in high school.  In 1957 we moved to Massapequa. No racial covenants in the deeds but 100% white.  No accident, of course.
But there is an error in O'Reilly's concession.  The FHA did not include clauses requiring sales only to Caucasians in its terms for insuring home mortgages.  But the FHA did go along with racial red-lining.  In 1948 the Supreme Court declared racial restrictions in deeds to be unenforceable in Shelley v. Kraemer.  But private discrimination was not unlawful until 1968, the year after O'Reilly graduated from high school.  That year the Congress passed the Fair Housing Act.  That year in Jones v. Alfred Mayer Co. the Supreme Court declared in a case of "first impression"  that the long dormant Civil Rights Act of 1866 barred purely private discrimination in the sale of real estate, not just government enforcement of such agreements. Congress's power was rooted not in the 14th Amendment but in its power under the 13th Amendment to eliminate the effects of slavery. - gwc

O'Reilly: OK, Jon Stewart Was Right About One Thing In 'White Privilege' Debate

 "Fox News host Bill O'Reilly conceded on Wednesday night that comedian Jon Stewart was at least right about something during their debate about white privilege.

O'Reilly, a skeptic of the idea that white privilege even exists in modern America, faced off against the host of Comedy Central's "The Daily Show" last week. During the debate, Stewart pointed out that O'Reilly's hometown of Levittown, N.Y., at one time didn't allow blacks to live there and was built as a racially segregated community.

 On Wednesday night, O'Reilly dissected the debate with guest and Fox senior correspondent Eric Shawn.

"Stewart is correct, Shawn, that blacks couldn't move into Levittown in 1950," O'Reilly said. "When did that change?"

"Well, he's correct because the federal government actually backed that," Shawn said. "The Federal Housing Administration had a covenant in the lease of the house that your parents owned that said that it could only be used by caucasians. That started to change in '54, '55 with some court cases."

 "Mmhmm," O'Reilly said.

"But still, Levittown, by 1960 out of 15,000 homes there were still only 15 owned by African Americans," Shawn said.

O'Reilly noted that the Fair Housing Act prohibited discrimination against black people after 1968.

"So Stewart is right that there was a period of time but the mistake he makes is that there was some kind of privilege associated with living in Levittown," O'Reilly said. "He's making it out to be Bel Aire. Trust me, it was a good place to grow up because there were a lot of kids, but there wasn't any privilege involved in growing up there."

"And black on Long Island lived in places like Hempstead and Westbury," O'Reilly added. "Some of those neighborhoods were good and some of them weren't. But there was integration so we have to give Stewart props for history. Right. But white privilege extending out? Wrong.""

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Wednesday, October 22, 2014

Jury deliberations begin in first trial over DePuy's Pinnacle hips | Reuters

Jury deliberations begin in first trial over DePuy's Pinnacle hips | Reuters:

"In his closing argument Tuesday, a lawyer for Herlihy-Paoli, Mark Lanier, said DePuy aggressively pushed the metal-on-metal devices for younger patients with active lifestyles, saying they could last longer than versions made with other materials such as ceramic or polyethylene, a type of plastic.

But in doing so, Lanier said, the company ignored years’ worth of data suggesting that metal-on-metal hips failed at an abnormally high rate, putting thousands of patients at risk.

"Send a clear message that holds them accountable," Lanier told jurors. He asked them to award at least $1.4 million for Herlihy-Paoli's medical costs and an additional, unspecified amount in punitive damages."

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O'Bannon anti~trust lawyers seek $50 M fees

O'Bannon Lawyers Move for $50M in counsel fees against NCAA -
 Sports Illustrated

The lawyers for the plaintiffs in the class-action antitrust lawsuit against the NCAA featuring former UCLA basketball star Ed O'Bannon want more than $50.2 million in attorneys' fees and other costs from the NCAA, [according to the Memorandum of Law filed by class counsel]
The lawyers submitted a request in August asking for $52.4 million, but did so to comply with rules that said they had to submit billing within 14 days of an upending judgment.
The plaintiffs' lawyers had until Tuesday to file an amended version of their request and the NCAA has until Dec. 23 to file a response to the filing.
The plaintiffs, led by Hausfeld LLP, now are seeking $44,972,407 in attorneys’ fees and recoverable costs and expenses of $5,277,209. According to the filing, the lawyers fees were billed from $985 per hour for senior partners with experience of more than 40 years to $175 per hour for the most junior associate.
According to the filing, Michael Hausfeld’s law firm oversaw the work of 31 law firms in the case, down from the 43 law firms from the fees-and-costs motion that was submitted in August. Hausfeld's firm claims they have spent more the 27,300 hours on the case, from March 2009 to the end of July of this year.
In August, U.S. District Judge Claudia Wilken ruled that the NCAA violated antitrust law by preventing student-athletes from being compensated for their name, image and likeness rights.
Wilken's ruling allows schools to pay athletes licensing money into a trust fund starting in 2016. Financial damages were not part of the trial, but Wilken said the plaintiffs "shall recover their costs from the NCAA."