Thursday, November 16, 2017

$247 million verdict in J&J hip implant trial

BREAKING: J&J Slammed With $247M Verdict In Texas Hip Bellwether
Share us on: By Jess Krochtengel
Law360, Dallas (November 16, 2017, 12:34 PM EST) -- A Texas federal jury on Thursday hit Johnson & Johnson and its DePuy Orthopaedics Inc. unit with a combined $247 million verdict in a bellwether trial over DePuy’s Pinnacle line of metal-on-metal hip implants, delivering the third consecutive nine-figure verdict in the multidistrict litigation.

The unanimous jury found J&J and DePuy liable for a series of design and manufacturing defects, fraud and deceptive business practices, and found the companies had acted with wanton, reckless or malicious conduct. They awarded $90 million in punitive damages against J&J and $78 million in punitive damages against DePuy.

For the six individual plaintiffs, each of whom is from New York, the jury awarded more than $77 million in past and future medical expenses and pain and suffering, including each plaintiffs’ actual past medical expenses, the amounts of which were stipulated to by the parties. Four of the plaintiffs’ spouses were awarded loss of consortium damages totaling $1.7 million.

The verdict followed a two-month trial, the fourth bellwether in multidistrict litigation that includes more than 9,000 cases alleging design defects in DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants. In 2016, Texas juries found in favor of two groups of plaintiffs from Texas and California, awarding them $502 million and more than $1 billion in damages respectively, though those verdicts were later reduced to $150 million and $543 million. In the first bellwether trial involving the Pinnacle Ultamet, a jury sided with J&J against a sole plaintiff from Montana.

The jury specifically found J&J and DePuy liable for design defect, negligent design, inadequate warning, manufacturing defect, negligent manufacture, negligent misrepresentation, intentional misrepresentation to the surgeons who performed the initial hip implant surgeries on the plaintiffs, fraudulent concealment from the plaintiffs and from the surgeons and deceptive business practices as to the plaintiffs and the surgeons. The jury also found J&J liable for negligent undertaking of a duty to provide services to DePuy and for aiding and abetting DePuy in its tortious conduct. The jury did not find J&J or DePuy liable for intentional misrepresentation to the plaintiffs.

During the trial, the six plaintiffs told jurors they’d suffered a range of injuries, including severe tissue damage that caused permanent muscle loss, intense pain, loss of hip movement and walking with a permanent limp. They say the Pinnacle product shed microscopic metal ions into their bodies, causing side effects that J&J and DePuy didn’t warn surgeons about and that could have been avoided with a safer design.

The plaintiffs alleged J&J and DePuy valued marketing above research and development and rushed the Pinnacle product into production without any testing in humans out of a desire to capture a greater market share. They claimed the companies pushed the Pinnacle product with an incorrect statistic that it was 99 percent successful and that they’d used cheaper, less safe alternatives in the manufacturing process to keep costs down, and said the alleged defects in the product turned people’s hips into “ticking time bombs.”

In his closing statement, plaintiffs' counsel Mark Lanier of The Lanier Law Firm asked the jury to punish J&J "for being indifferent to our health” through a large punitive damages award that would capture the attention of company executives who didn’t attend the trial.

J&J and DePuy made the case during the trial that metal-on-metal was a viable, reasonable option for hip implants and that its Pinnacle Ultamet product was offered to help doctors choose the device that best fit their patients. The companies said the metal-on-metal implant was developed to solve a bone degradation problem with an existing polyethylene hip implant on the market and denied putting profits above patient safety and long-term results.

In a closing statement, defense counsel Steve Quattlebaum of Quattlebaum Grooms & Tull PLLC said the plaintiffs had made an emotional appeal and told a good story but that their allegations were not backed up by evidence or science. Quattlebaum said there’s no evidence the surgeons who treated the six plaintiffs relied on or even saw the 99 percent statistic when choosing which kind of implant to use and said there’s no evidence the plaintiffs’ injuries were caused by the product specifications the plaintiffs had complained about during the trial.

The plaintiffs are represented by Mark Lanier of The Lanier Law Firm, Jayne Conroy of Simmons Hanly Conroy, Richard Arsenault ofNeblett Beard & Arsenault and Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP

The defendants are represented by John H. Beisner, Stephen J. Harburg and Jessica Davidson Miller of Skadden Arps Slate Meagher & Flom LLP, Steven W. Quattlebaum of Quattlebaum Grooms & Tull PLLC and Tracie J. Renfroe of King & Spalding LLP.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas

Wednesday, November 15, 2017

The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment | Election Law Blog

The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment | Election Law Blog

by Prof. Richard L. Hasen (UCLA Law School)

"I spent a good part of my Saturday afternoon tweeting and blogging in conversations with Hugh Hewitt about ways Republicans could deal with the Roy Moore mess.

At first Hewitt suggested cancelling the election altogether, and letting Strange just complete the term. I protested that cancelling an election already underway (military and other absentee  voter have already voted) is profoundly undemocratic and dangerous. It also appears to violate the 17th Amendment, which requires that an appointment of a temporary Senator be temporary, and that the state schedule a replacement vote.
Eventually Hewitt relented on this point (not because he thought it was undemocratic—indeed he seemed to believe Republicans are somehow entitled to Alabama’s two Senate seats without an election), but because he thought it would violate the 17th Amendment.
So he hit on another idea, and according to Politico it is an idea Republican leaders nationally are now weighing:  get Luther Strange, the temporary Senator appointed to replace Jeff Sessions, to resign, and then with the new vacancy, declare this election void and start over.
I’ll talk about the political implications in a bit, but first the constitutional issue.  Here’s what the 17th Amendment says, in pertinent part:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
When Jeff Sessions resigned, that created a vacancy. Alabama law allowed the governor to fill that vacancy and to set the date for a special election. The governor (actually the predecessor) appointed Luther Strange and purported to set the date of the replacement election. (There’s some controversy about whether he had the authority to do this). The new governor reset (or properly set) the replacement election. We’ve had the primary, and now we are in the general election.
The governor was mandated to issue a writ of election. Because the writ of election has been already issued to fill a vacancy, the election goes forward under the language of the 17th Amendment. Temporary vacancies filled by the governor don’t change that. That’s a separate part of the 17th amendment and separate from the duty to issue the writ of election when there is the vacancy of an elected Senator."

New Jersey School Segregation Persists

'APARTHEID SCHOOLS' - "Segregation of N.J. schools 'has gone largely unchecked,' study finds," by POLITICO's Linh Tat: "Many black and Hispanic students in New Jersey continue to attend highly segregated schools - a situation that often starts in pre-K and could worsen as charter schools grow, according to a study released Wednesday. More than a quarter of the state's black students attend so-called 'apartheid schools' - where less than 1 percent of students are white - while the number of Hispanic students in such schools has doubled since 1989 and is increasing, according to the UCLA Civil Rights Project. Moreover, the vast majority of black and Latino students are enrolled in schools considered doubly segregated by race and income, the researchers said." Read the report

Sunday, October 29, 2017

James Madison’s Lessons in Racism - The New York Times

The historian Noah Feldman - author of the forthcoming Three Lives of James Madison - Genius, Partisan, President - has a very interesting take on Madison. Apt for our age he espoused freedom for slaves, but compromised due to economic pressures, including his own. - gwc
James Madison’s Lessons in Racism - The New York Times

by Noah Feldman

When we think about the framers of the Constitution and how they handled the issue of race, we conjure up the extremes: the hypocrites and the heroes. At one end is Thomas Jefferson, who wrote that “all men are created equal” but believed Africans were inferior and fathered children with an enslaved woman. At the other end is Alexander Hamilton, who, at least as depicted by admirers like the biographer Ron Chernow and the playwright Lin-Manuel Miranda, was an ardent abolitionist.
This framing, however, is simplistic and misleading. It is simplistic because it overlooks harder-to-categorize positions like that of James Madison, the lead drafter of the Constitution, who genuinely rejected the idea of racial inferiority yet still failed to put his beliefs in equality and liberty into practice. And it is misleading because it implies that as long as we avoid having racist attitudes, we can succeed in avoiding racist policies. We think that if we’re not Jefferson, we must be Hamilton. But this is not the case.
In this respect, Madison is the founding father who can teach Americans the most about our present contradictions on race. Madison insisted that enslaved Africans were entitled to a right to liberty and proposed that Congress purchase all the slaves in the United States and set them free. Yet not only did he hold slaves on his plantation in Virginia and fail to free them upon his death, but he also originated the notorious three-fifths compromise in the Constitution, which counted a slave as three-fifths of a person for purposes of legislative representation.

Friday, October 13, 2017

Roy Moore Led Charge Against Removing Segregation From Alabama Constitution – Talking Points Memo

Roy Moore Led Charge Against Removing Segregation From Alabama Constitution – Talking Points Memo

By CAMERON JOSEPH Published OCTOBER 13, 2017 6:00 AM

Alabama’s state constitution still contains the following language:
“Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”

In 2004, a bipartisan coalition of Alabama leaders moved to eliminate sections of the state constitution mandating school segregation and poll taxes. They assumed it’d be an easy feat — until Roy Moore got involved.

Democrats and Republicans led by then-Gov. Bob Riley (R) worked together on an amendment to remove language in the state constitution mandating “separate schools for white and colored children” and allowing poll taxes, Jim Crow-era requirements that people to pay to vote that disenfranchised most black people.

The changes were purely symbolic — all of the state constitutional language had already been struck down by state and federal courts — but civil rights and business leaders saw it as a way to heal old wounds and make the state more attractive to big business.

The opposite happened instead, and Moore’s fierce opposition likely made the difference.

“He had a huge impact. It was a measure that was set to pass without much opposition and then because he got involved it changed the dynamic completely,” said Susan Kennedy of the Alabama Education Association, the state public teachers’ lobby that supported the amendment.

Sunday, September 24, 2017

The day nine young students shattered racial segregation in US schools | World news | The Guardian

Sixty years ago school started thee weeks late in Little Rock as Gov. Orville Faubus defied the United States Supreme Court's school integration order.  the image above became the an icon of white racist resistance.

But the lives of the two girls at the center of the photo - the stoic Elizabeth and the raging Hazel took an unexpected turn.  Years later  Hazel called Elizabeth.  David Margolick tells the story of their not so easy reconciliation in his book Elizabeth and Hazel.

The day nine young students shattered racial segregation in US schools | World news | The Guardian

by David Smith

It was September 1957, the Jim Crow era of racial segregation, and nine black pupils little guessed they were about to plant a milestone in the struggle for civil rights to follow those of Emmett Till, a 14-year-old lynched in Mississippi in 1955, and Rosa Parks, who refused to give up her seat to a white passenger on a bus in Alabama later the same year.

Brown v Board of Education, the landmark 1954 supreme court ruling that segregated schools were unconstitutional, should have meant she and fellow pupils could take their places at Central High. But Governor Orval Faubus of Arkansas, in the deep south, remained defiant and used the national guard to block their enrollment. The African American children were left in limbo for three weeks.

On the first day of term, the national guard were there to stop the nine entering Central High, where all 1,900 attendees were white. Three weeks later, on 25 September, the group braved a hostile white crowd, climbed the school steps and were escorted to class by US army troops. They became known and revered as the Little Rock Nine.

Eight of the nine are still living and will return to Little Rock on Monday to mark the 60th anniversary of the US’s first major battle over school segregation. A day later, several will be in Washington to speak at the Smithsonian National Museum of African American History and Culture. It will be a moment to reflect on how far the US has come in unravelling educational apartheid – and whether, in recent years, progress has stalled or even reversed.

The share of “intensely segregated” black schools has trebled over the past 25 years, according to research by the Civil Rights Project at the University of California, Los Angeles (UCLA), which warns of a “resegregation” taking hold. One of the Black students, Minnie Jean] Trickey, who turned 76 earlier this month, asks bleakly: “What kind of country doesn’t see education for all children to be the primary value? I think the US has two values: segregation, which they do so well, and violence.”

Speaking by phone from her longtime home in Canada, she can still remember vividly the combination of segregation and violence that left her “whole body shaking with fear and shock” as a teenager six decades ago.

On 23 September 1957, the group did get into the building with police protection. But an angry mob of more than a thousand white people had gathered in front of the school, chanting racist abuse such as “Go back to Africa”.

“I really think that we were afraid to look at the mob; at least I was,” says Trickey. “So we just heard it and it was like a sports event, that sound, the roar, but it was a roar of hatred, and just thinking about it makes me shake.”****


Harvard Law acknowledges burden of slave labor

We are in a period of intense debate about race - because we have elected a racist President of the United States.  Is that too harsh? Not after his descent at Trump Tower,  not after his birther: calumny, and certainly not after his inability to directly address the virulent racism on display at Charlottesville, Virginia. 
There is a surface plausibilty to leaving up the monuments to heroes of the war to save slavery.  Plausible if post-civil rights movement we had erected statues, renamed bridges and roads (other than the de rigeur re-naming of the main street in Black communities).
A few months ago Georgetown acknowledged  its debt to the slaves sold by Jesuits to allow the school to remain in operation. - gwc

Thursday, September 21, 2017

4th Bellwether Over J&J Metal Hip Implants Kicks Off - Law360

Mark Lanier, the outstanding Texas trial lawyer is taking another whack at Johnson & Johnson.  The pharma giant is battling 9,000 hip implant cases, pelvic mesh cases, and talc cases.  

4th Bellwether Over J&J Metal Hip Implants Kicks Off - Law360

This is the fourth bellwether trial involving the Pinnacle line of metal-on-metal hip implants. The first involved a single plaintiff from Montana and ended in a defense win. The second, involving five plaintiffs from Texas, ended in a $502 million verdict that was reduced to about $150 million. And the third, involving six plaintiffs from California, ended in December with a more than $1 billion verdict, later reduced to about $543 million.

Saturday, September 16, 2017

Chemerinsky brief argues Trump's pardon of Arpaio is void

Chemerinsky brief argues Trump's pardon of Arpaio is void

Updated: A proposed amicus brief filed Monday argues that President Donald Trump’s pardon of Sheriff Joe Arpaio is void because it violates the Constitution. The brief (PDF) was submitted to a federal judge in Phoenix who is considering whether the pardon, issued before Arpaio had a chance to appeal his contempt conviction, requires her to vacate the conviction, (sub. req.) reports.

Arpaio was found guilty of contempt for violating a federal judge’s order to stop detaining citizens based only on a suspicion they were in the country illegally. Trump pardoned Arpaio, the former sheriff of Maricopa County, Arizona, on Aug. 25.
On one side is the U.S. Justice Department, which is urging U.S. District Judge Susan Bolton to vacate all orders in the case and dismiss it as moot.

A Powerful, Disturbing History of Residential Segregation in America - The New York Times

Growing up in Levittown the first Black person I saw was at Jones Beach.  As I got interested in the news - reading the New York Times which we got every morning, the struggle against segregation was in the south.  I never asked "why is there no one Black in our town?"  When we moved to Massapequa when I was 13 it was the same.  Italians,Irish, Jewish but nobody Black.

What I didn't know was that the FHA (Federal Housing Administration) refused to insure mortgages in neighborhoods that were not all white.  That our Levittown contract to purchase included the provision that we would sell only to Caucasians.

Richard Rothsetein demonstrates the federal government - which financed the entire post-war suburban housing boom - actively segregated the country.  Richard Rothstein demonstrates decisively that the segregation of America's towns and cities is not just the result of private preferred but rather the result of conscious government policy. gwc

A Powerful, Disturbing History of Residential Segregation in America - The New York Times

by David Oshinsky

A Forgotten History of How Our Government Segregated America
By Richard Rothstein
Illustrated. 345 pp. Liveright Publishing. $27.95.
In the summer of 1950, with Americans reeling from the news of North Korea’s invasion of South Korea and Senator Joseph McCarthy’s ever expanding “Red hunt” in Washington, Time magazine ran a disarmingly cheerful cover story about the nation’s housing boom, titled: “For Sale: A New Way of Life.” Featuring the builder William Levitt, who had recently transformed some Long Island potato fields into a sprawling complex of starter homes — two bedrooms, one bath and an extension attic for $7,990 — it spoke reverentially of the development’s parks and playgrounds and many rules. “Fences are not allowed,” Time noted. “The plot of grass around each house must be cut at least once a week,” and laundry couldn’t be hung outside “on weekends and holidays.”
One rule, however, was conveniently absent from the piece. Homeowners in Levittown were forbidden to rent or sell to persons “other than members of the Caucasian race.” Asked about this so-called “racial covenant,” Levitt blamed society at large. “As a Jew, I have no room in my mind or heart for racial prejudice,” he said. “But I have come to know that if we sell one house to a Negro family, then 90 or 95 percent of our white customers will not buy into the community. This is their attitude, not ours. As a company, our position is simply this: We can solve a housing problem, or we can try to solve a racial problem, but we cannot combine the two.”
At first glance, Levittown stands as a prime example of de facto segregation, which results from private activity, as opposed to de jure segregation, which derives from government policy or law. Levitt, after all, appeared to be an independent businessman responding to the prejudices of the home buyers he hoped to attract. In truth, it wasn’t that simple. As Richard Rothstein contends in “The Color of Law,” a powerful and disturbing history of residential segregation in America, the government at all levels and in all branches abetted this injustice. “We have created a caste system in this country, with African-Americans kept exploited and geographically separate by racially explicit government policies,” he writes. “Although most of these policies are now off the books, they have never been remedied and their effects endure.”
Levittown reflected this dynamic. Popular with World War II veterans and their families, its 17,500 houses required no down payment. The federal government guaranteed low-interest bank loans for Levitt to build them, and low-interest mortgages for veterans to buy them. The government also made clear that developers receiving these incentives must sell to whites only. 
One of the great strengths of Rothstein’s account is the sheer weight of evidence he marshals. A research associate at the Economic Policy Institute, he quite simply demolishes the notion that government played a minor role in creating the racial ghettos that plague our suburbs and inner cities. Going back to the late 19th century, he uncovers a policy of de jure segregation in virtually every presidential administration, incl