Thursday, December 1, 2016

BREAKING: 3rd J&J Hip Implant Bellwether Delivers $1B Verdict - Law360

BREAKING: 3rd J&J Hip Implant Bellwether Delivers $1B Verdict - Law360

by Jess Krochtengel

Law360, Dallas (December 1, 2016, 5:14 PM EST) -- A Texas federal jury on Thursday found Johnson & Johnson’s DePuy Orthopaedics Inc. unit liable for more than $1.04 billion in a six-plaintiff bellwether trial targeting metal-shedding artificial hips that are part of its Pinnacle line, dwarfing the $150 million verdict J&J is on the hook for after a previous bellwether.

After a two-month trial that closed Nov. 30, jurors deliberated for less than a day before finding J&J and DePuy had negligently designed the hip implant, failed to warn surgeons about dangerous conditions related to the implant and concealed the implant’s risks. The verdict includes between $4 million and $6 million per plaintiff in damages for physical injuries and pain and suffering, $1 million each to four spouses for loss of consortium and more than $504 million against each of DePuy and J&J in punitive damages, after the jury found the companies had acted with malice or fraud.

DePuy and J&J were each found liable for negligent design defect, negligent failure to warn, strict liability failure to warn, failure to recall, negligent misrepresentation, intentional misrepresentation and fraudulent concealment. J&J was also found liable for aiding and abetting DePuy in each of the seven causes of action. The jury found J&J did not conspire with DePuy on the design defect claim, but did find J&J liable for conspiracy on the other six claims.

Because the six plaintiffs are from California, they are not [would not have been] subject to the same punitive damages cap that slashed by more than two-thirds the $502 million verdictfrom the second bellwether trial, which involved Texas plaintiffs. J&J previously won the first bellwether trial, which involved one plaintiff from Montana.

Before the third bellwether got underway, J&J complained it was being hit with unfair pretrial rulings, and during the trial, J&J continued to raise objections to perceived advantages for the plaintiffs. The case involved six plaintiffs from California, who each had to undergo “revision surgeries” after being fitted with metal-on-metal artificial hip systems made by DePuy, known as the Pinnacle hip system’s Ultamet variety.

At the MDL’s heart are allegations that friction between the device’s metal socket and metal ball head rubs away billions of microscopic particles with every step, polluting the bloodstream and surrounding tissue with “wear debris” over time. The plaintiffs alleged J&J knew the device was riskier than others available but still pushed it aggressively, even paying kickbacks to amenable surgeons.

In closing arguments, plaintiffs' lawyer Mark Lanier of The Lanier Law Firm had asked the jury to impose a stiff enough penalty on Johnson & Johnson that the company would change its behavior with future medical devices. He had suggested a $500 million punitive award would hardly be felt by a company worth $72 billion.

J&J maintains it acted appropriately and responsibly in the development, testing and marketing of the Ultamet product. During its opening, the company questioned whether the patients might have had hypersensitive responses to the implants, and suggested the devices were wrongly positioned in their bodies because of doctor error, which it said would lead to the excessive wear.

In a measured closing argument, defense lawyer Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC had walked jurors through the 96-page, 33-question jury charge, pointing out what he said were holes in the plaintiffs' case and a failure to present evidence supporting the plaintiffs' claims. 

From the outset, J&J had raised complaints about how the trial was conducted. It launched a mistrial motion immediately after the plaintiffs’ opening statement, arguing plaintiffs’ lawyer Mark Lanier had improperly referred to illegal bribes and kickbacks — the subject of a 2007 deferred-prosecution agreement. Days later, it sought a mistrial after the introduction of what it said were misleading ads that ran in orthopedic journals, and filed another mistrial motion aimed at the suggestion by plaintiffs its metal-on-metal implants could increase patients’ risk of cancer and other systemic injuries.

J&J also complained that it was on the losing end of improper pretrial rulings, saying MDL decisions had undermined the chances for a fair or meaningful result.

It argued Texas federal court was the improper jurisdiction for a trial involving California plaintiffs, said the consolidation of six plaintiffs into one trial prejudiced its ability to present its defense and argued it had wrongly been shut out of the process of selecting plaintiffs for the trial. The company also said the trial court unfairly allowed witnesses to testify remotelywhen no special circumstances demanded it, even making an ultimately unsuccessful request to the Fifth Circuit to stop the practice.

The next bellwether is set to begin in September 2017, with the parties preparing for 10 plaintiffs all from New York. J&J has objected to proceeding with any more trials in the MDL until the appeals from the second bellwether trial have been resolved, and argues the Texas federal court lacks jurisdiction over out-of-state residents.

The patients are represented by W. Mark Lanier of The Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Jayne Conroy of Simmons Hanly Conroy LLC and Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger, among others.

DePuy and Johnson & Johnson are represented by Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC, John Anderson of Stoel Rives LLP, Dawn Estes of Estes Thorne & Carr, Michael Powell and Seth Roberts of Locke Lord LLP and Stephen J. Harburg, John H. Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.

The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.

Wednesday, November 30, 2016

World, Show Trump (and the Kids) the Money!

Trump towers, Trump golf courses, trump steaks would be valueless if separated from DJT.  He, his gaudy bragadoccio are the brand,are the value.  And now as he has said "the brand is hot".  The Trump presidency goes beyond conflict of interest.  It is monetizing the presidency. - gwc

World, Show Trump (and the Kids) the Money!

by Josh Marshall

The point is that there's no way to sell this operation to Larry Stein and have these gaudy monstrosities become Stein Towers. The value disappears or almost entirely disappears once the name goes. The value of this business is inextricably tied to Trump's (or his immediate family members) owning them and using his name. As we speak he's doing precisely the same thing, just with the value of the Trump name turbocharged with the new "President of the United States" brand which generations of Americans have been building up for almost a quarter of a millennium.

Party building

Sunday, November 27, 2016

How much could Trump’s education secretary damage public schools? Just look at Detroit.

How much could Trump’s education secretary damage public schools? Just look at Detroit.

President-elect Donald Trump has tapped Betsy DeVos, a philanthropist and a strong supporter of school choice, as his education secretary. And although DeVos isn’t a household name, she could end up having a big impact on public school students across the country.
For evidence, just take a look at Detroit — a city where DeVos’ influence shows how an expansion of charter schools without the proper oversight can hurt the quality of education for low-income students.
Throughout DeVos’ career as a school choice advocate, she has aggressively pushed for the expansion of charter schools. Although many charter schools across the country benefit low-income families seeking an alternative to public schools, educational equity advocates often raise concerns that a lack of accountability allows less effective charter schools to thrive. And DeVos has been at the forefront of efforts to push against this accountability.
DeVos sits on the board of the Great Lakes Education Project, which advocates for its education reform priorities in the Michigan state legislature. This group is responsible for pushing the legislature to end its plans for a Detroit commission to regulate charter schools.

Friday, November 18, 2016

Why is it so hard to make a sobriety test for marijuana? | Igor Grant | Opinion | The Guardian

Why is it so hard to make a sobriety test for marijuana? | Igor Grant | Opinion | The Guardian

Unlike alcohol, the amount of pot in someone’s blood doesn’t necessarily correlate with the ability to drive safely. We must learn how to assess the risk

On 8 November, voters in CaliforniaMaineMassachusetts and Nevadaapproved ballot measures to legalize recreational cannabis. It is now legal in a total of eight states. This creates potential problems for road safety. How do we determine who’s impaired and who’s not?
The effects of alcohol vary based on a person’s size and weight, metabolic rate, related food intake and the type and amount of beverage consumed. Even so, alcohol consumption produces fairly straightforward results: the more you drink, the worse you drive. Factors like body size and drinking experience can shift the correlation slightly, but the relationship is still pretty linear, enough to be able to confidently develop a blood alcohol content scale for legally determining drunk driving. Not so with marijuana....
But how do you know when you’re too stoned to drive? How can police tell?
My colleagues and I at the Center for Medicinal Cannabis Research at UC San Diego have received a $1.8m grant from the state of California to gather data about dosages, time and what it takes to impair driving ability – and then create a viable roadside sobriety test for cannabis.
Alcohol and marijuana both affect mental function, which means they can both impair driving ability.
Some elements of cannabis use are similar. Potency of strain affects potency of effect. Marijuana and its active ingredient – THC – alter brain function, affecting processes like attention, perception and coordination, which are necessary for a complex behavior like driving a car.
Regular users tend to become accustomed to the drug, particularly in terms of cognitive disruption or psycho-motor skills. Because they are accustomed to the drug’s effects, this means they may function better relative to naive users....

Friday, November 4, 2016

Fashion's Function in Intellectual Property Law by Christopher Buccafusco, Jeanne C. Fromer :: SSRN

Fashion's Function in Intellectual Property Law by Christopher Buccafusco, Jeanne C. Fromer :: SSRN

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a novel account of fashion’s function. It argues that aspects of garment designs are functional if they affect the perception of the wearer’s body. Clothes are not designed simply to look good. They are also designed to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it offers a solution to Varsity Brands Inc. v. Star Athletica, LLC, the copyright case now pending before the U.S. Supreme Court.

Friday, October 28, 2016

‘All Eyes Are Upon Us,’ by Jason Sokol - The New York Times

‘All Eyes Are Upon Us,’ by Jason Sokol - The New York Times

Race and politics from Boston to Brooklyn

reviewed by David Levering Lewis [biographer of W.E.B. DeBois]

If, as many believe, America’s experiment in postracialism is over, then “All Eyes Are Upon Us” is a prescient book that offers a great deal to explain a national self-deception of stunning brevity. According to Jason Sokol, whose anecdotally rich first book, “There Goes My Everything,” tracked white Southerners variously coping in the civil rights era, historians have paid insufficient attention to the Janus-faced ­responses of white Northerners to the struggles of black Americans. To be sure, monographs by James Goodman and Thomas Sugrue have explored the dark side of Northern race relations. They found that although the dominant racial philosophies of whites in the North and South were antithetical, opportunity for a majority of black men and women in the North was not very different from what it was in the South.

DNC moves to hold RNC in contempt of voter intimidation order

Roger Stone, a key pro-Trump operative got his start as a Nixon dirty trickster. He is up to new tricks.  'Vote for Hillary the new way, text 8888', he tweeted. That was the first exhibit in a motion by the Democratic National Committee which submitted a proposed Order to Show Cause. The DNC seeks an order holding the Republican National Committee in contempt of court and
(b) prohibiting Defendant RNC from allocating any money to fund, reimburse expenses for, or provide support for Donald J. Trump and/or his campaign’s voter intimidation program or his supporters’ plans to “watch” “certain sections” and “other communities”;
(c) directing Defendant RNC to seek reimbursement from the Trump campaign and all state political organizations for any funds previously allocated to fund any prohibited “ballot security” measures, including staff salaries, overhead expenses, training costs and expenses, digital resource expenditures, or any other resources used in any way to promote or facilitate the Trump campaign or state political organization “ballot security” or “integrity” endeavors;
(d) ordering Defendant RNC to distribute the Consent Decree and the relief awarded via this action to every RNC field office with instructions that no person employed by or affiliated with the RNC shall participate in any “ballot security” measures; 

In its brief the DNC seeks to extend for another eight years a 1982 consent decree later modified, extended and uphel in 2010 by the U.S. Court of Appeals in Philadelphia.  Originally issued by the lae federal judge Dickinson Debevoise it bars the Republican Bational Committee from doing anything that has the purpose or effect of suppressing voter turnout.  Further, the RNC is accused of violating its duty to obtain pre-clearance.  The DNC brief asserts that  "The 2009 Consent Decree provides that “[t]he RNC shall be required to notify the DNC and this Court of any proposed ballot security measures at least 10 days before instituting such measures so that this Court may determine their legality and whether they comply with the other terms of the Consent Decree.”"

The RNC has not yet filed answering papers.  A key issue is whether the Tump campaign is an agent of the RNC - or vice versa. - gwc

J&J, Talc Co. Hit With $70M Baby Powder Cancer Verdict - Law360

J&J, Talc Co. Hit With $70M Baby Powder Cancer Verdict - Law360

Law360, Los Angeles (October 27, 2016, 6:54 PM EDT) -- A Missouri jury slammed Johnson & Johnson and its talc supplier with a $70 million verdict late Thursday in a lawsuit filed by a woman who developed ovarian cancer after using J&J's baby powder on her genitals, the third massive verdict in that state's talc litigation.

The verdict is among the highest awarded in cases against J&J over the alleged link between talc and ovarian cancer. (AP)
Jurors in St. Louis found that plaintiff Deborah Giannecchini is owed $575,000 in economic damages and $2 million in non-economic compensatory damages. In addition, they said that J&J should pay $65 million in punitive damages, while talc supplier Imerys Talc America Inc. should pay $2.5 million.

The verdict falls far short of what Giannecchini had asked for -- more than $285 million total -- but is among the highest awarded in cases against J&J over the alleged link between talc and ovarian cancer. Another Missouri state jury awarded a plaintiff $72 million to another woman with the disease.

Shortly after the verdict was read, J&J announced it would mount an appeal.

During closing arguments earlier in the day, Giannecchini's attorney R. Allen Smith Jr. of The Smith Law Firm told jurors that the company callously joked about the possible cancer link and falsified medical records to hide it. He said the massive verdict is necessary to force "the largest corporation in the world" to change its ways, and that the company has rigged regulatory agencies in their favor.

"Make them stop," Smith said. "Stop this madness..."