Monday, September 26, 2016

NJ Justices Reject 'Feel of the Case' Doctrine, Overturn 2011 Ruling Reducing Damage Award | New Jersey Law Journal

 In Cuevas v. Wentworth the Supreme Court of New Jersey has overturned its ill-considered ruling in He v. Miller,  207 N.J. 230 (2011) which embraced a vague "feel of the case standard" for judges considering motions to reduce a jury verdict.  The rule, which harked back to Justice Oliver Wendell Holmes view that the jury "aid" the conscience of the court, and that as trial experience grows judges need juries less and less. -gwc

NJ Justices Reject 'Feel of the Case' Doctrine, Overturn 2011 Ruling Reducing Damage Award | New 

by Carmen Natale

In a unanimous ruling, the court repudiated its five-year-old ruling that said judges could rely on their experiences as attorneys in private practice and their years on the bench to determine whether verdicts are unusually or unjustly high and need to be trimmed.
"The pre-eminent role that the jury plays in our justice system call for judicial restraint in exercising the power to reduce a jury's damages award," wrote Justice Barry Albin in Cuevas v. Wentworth Group. "A court should not grant a remittitur except in the unusual case in which the jury's award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience."
The ruling in Cuevas essentially overturns the court's 2011 3-2 ruling in He v. Miller, in which the majority ruled that a judge was permitted to rely on his "feel for the case"—based on his professional experience—to slash a $1 million verdict to $200,000 in a medical malpractice case.
Albin and Chief Justice Stuart Rabner dissented in He. The members of the majority, Justices Helen Hoens and Roberto Rivera-Soto and Appellate Division Judge Dorothea Wefing, temporarily assigned, no longer sit on the court.
"[W]e now conclude that such an approach is not sound in principle or workable in practice," Albin said, referring to the ruling in He,
"A judge's personal knowledge of verdicts from experiences as a private practitioner or jurist is information outside the record and is not subject to the typical scrutiny evidence receives in the adversarial process," he said. "A judge therefore should not rely on personal knowledge of the verdicts."
A trial judge should also not do comparative case analysis in deciding motions for remittitur, Albin said. He said jury verdicts in specific cases differ and are not susceptible to comparison.
In Cuevas, the court upheld a verdict in which two Hispanic brothers were awarded hundreds of thousands of dollars each in damages after alleging that they faced discrimination in the workplace because of their ethnicity, even though they did not present any expert testimony attesting to the severity of their emotional distress.
At their trial, they were the only ones to testify about their emotional distress. Ramon Cuevas told the jury he was "despondent" and "depressed." Jeffrey Cuevas also testified that he was depressed, court documents said.
A Passaic County jury awarded Ramon Cuevas and Jeffrey Cuevas $800,000 and $600,000, respectively. Superior Court Judge Esther Suarez declined to apply her personal experiences as a jurist and attorney and denied a defense motion for a judgment notwithstanding the verdict, saying it "did not shock the judicial conscience."...

Thursday, September 22, 2016

Philip Morris wins in medical monitoirng case in Massachusetts

The New York Court of Appeals in Caronia v. Philp Morris spurned a claim for medical monitoring by long time smokers against Philip Morris.  The Massachuetts case went to trial.  The jury found Marlboro cigarettes are not defective - that there is no alternative safer design that would meet the needs of a "non-addicted" smoker.  The finding shocks me.  Marlboro's were designed to maximize the output of free base nicotine - making them defective.  A California jury found for plaintiff  in Boeken v. Philip Morris on that theory.

Very disappointing to see Philip Morris win one like this.


Donovan et al v. Philip Morris USA, Inc. 06-12234 (Docket Track) - 09/23/2016
Docket Number:1:06-cv-12234 in United States District Court for the District of Massachusetts
Title:Donovan et al v. Philip Morris USA, Inc.
Date Filed:Dec 14, 2006

Docket Entries

Entry #Filing DateDescription
741 Sep 22, 2016 Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with D. 540, 569 and 733, the Court reserved judgment on Plaintiffs' c. 93A claim against Defendant Philip Morris. This claim, as both parties acknowledge, is premised upon the breach of implied warranty of merchantability (i.e., the design defect claim). D. 29 at &para&para 100-110; D. 736 at 2; D. 725-1 at 3 (noting that a breach of warranty claim generally constitutes a violation of c. 93A and cases cited). It was the design defect claim for which a jury, after a contested and well-tried case by both sides, found Philip Morris, not liable. D. 718 (verdict form). Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, 725, 736, 740 (Plaintiffs' reply), the Court renders judgment for Philip Morris on the c. 93A claim and makes the following findings and conclusions.The jury found for Philip Morris on the design defect claim, finding in the first instance that Plaintiffs failed to show that Marlboro cigarettes produced by the Defendant are defective and unreasonably dangerous. D. 718 at 1. The court finds that the Plaintiffs failed to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer) and that the Defendant's failure to adopt a safer, feasible alternative design was unreasonable. The Court adopts the Defendant's proposed findings of fact, D. 736 at &para&para 14-82 in this regard.Having found and concluded that Plaintiffs failed to prove this first, requisite element of the breach of implied warranty of merchantability claim, the Court need not address the remaining elements of that claim. D. 715 at 159-60 (jury charge addressing elements of design defect claim). Since this claim was the basis of the alleged unfair and deceptive act under c. 93A, the Court concludes, by a preponderance of the evidence and based upon the same findings of fact, that Plaintiffs c. 93A claim fails as well.Accordingly, the Court shall enter judgment for Defendant Philip Morris as to the c. 93A claim (Count III). (Hourihan, Lisa) (Entered: 09/22/2016) 
742 Sep 22, 2016 Judge Denise J. Casper: ORDER entered. JUDGMENT (Hourihan, Lisa) (Entered: 09/22/2016) 

Wednesday, September 14, 2016

Boston Scientific Pelvic Mesh Trial Win Overturned - Law360

 Boston Scientific Pelvic Mesh Trial Win Overturned

Law360, Boston (September 13, 2016, 5:28 PM EDT) -- The Massachusetts Appeals Court ruled Tuesday that a new trial must be held for a woman who said Boston Scientific's surgical mesh was defective, because a judge kept critical evidence about what the company knew about the product's dangers out of the trial.

In July 2014, a Massachusetts jury returned a verdict in favor of Boston Scientific Corp. in the first product liability lawsuit involving the company’s pelvic mesh products to go to trial. The jury found BSC's Pinnacle Pelvic Floor Repair Kit was not defectively designed. Plaintiff Diane Albright had said that Pinnacle caused severe pain and other physical side effects. Albright claims neither she nor her physicians were warned before surgery about the Pinnacle kit's allegedly defective design.

The trial judge improperly excluded information about a warning that appeared on the material safety data sheet for the polypropylene that BSC made the device out of, the appeals court said.

“The MSDS caution was relevant, material evidence admissible for the limited purpose of showing that BSC, which had received the MSDS well before 2009, had notice or knowledge of the content of the caution,” it said.

“Exclusion of the MSDS caution substantially affected Albright's rights as, without this key piece of evidence, the jury did not have a complete picture of the information bearing on the safety of the Pinnacle device that BSC either knew of or, in the exercise of reasonable care, should have known about,” it said.

That goes to the heart of BSC's ability to foresee the problem, and “no other evidence before the jury served a similar function,” the panel said.

The caution in question said, "Do not use this [polypropylene] material in medical applications involving permanent implantation in the human body or permanent contact with internal body fluids or tissues.”

Gone But Not Forgotten: A Photographic Vision of School Segregation

Gone But Not Forgotten: A Photographic Vision of School Segregation

by Tom Stoelker

A show at the Lipani Gallery on the Lincoln Center campus features photographs of a series of unremarkable buildings, rendered significant through technique and context.
The technique, applied in Photoshop, sets the buildings apart from their surroundings by screening the background environment down to a grey veil.
And the context is America’s racial history, as each photo of a building depicts a formerly segregated school for African Americans, located north of the Mason Dixon line.
Photographer Wendel White’s show, provocatively titled “Schools for the Colored,” runs through Oct. 26.

A Holistic Ruling on Broken Schools - The New York Times

A Holistic Ruling on Broken Schools - The New York Times

by the Editorial Board

Over the last four decades, courts in many states have ruled that school funding formulas violate their state constitutions by denying children in poor communities the opportunity to receive an effective education.
These rulings have focused mainly on money. But a sweeping opinion issued last week by a state judge in Connecticut went beyond criticizing funding policies. He ordered the state to revamp major aspects of the system — including special education services, teacher evaluations and hollow requirements that “in some places have nearly destroyed the meaning of high school graduation and left children rising from elementary school to high school without knowing how to read, write and do math well enough to move up.” The blistering ruling should shame lawmakers, who have for decades looked away from the problem of educational inequality.
The ruling, by Judge Thomas Moukawsher of State Superior Court in Hartford, came in response to a lawsuit filed more than a decade ago by a group claiming that the state school funding system was unconstitutional and unfair to poor communities. The judge agreed, but he left it to legislators to determine how much money should be spent on education statewide. He nevertheless criticized the way the Legislature amended the 2016 budget and cut funding to several poor districts, like Bridgeport and Hartford, while preserving increases to wealthier towns — without explanation or reference to a formula.
Lawmakers were not committed to a principled, constitutional system that distributed aid based on need and on sound educational practices, the judge said. He found that the recent budget crisis “left rich schools robbing millions of dollars from poor schools” and left open the possibility that at any time funds could be moved “away from starving cities to rich suburbs for no good reason.” The system, he said, can work only if the state uses an honest formula that delivers aid based on need.

KEY5 t – The KEY Chinese Software for the 21st century, on PC and Mac

KEY5 available by special request – The KEY Chinese Software for the 21st century, on PC and Mac

This is an indispensable program for me.  The dictionary and glossary functions  excellent, the word processing also good.  Formatting: hanzi only, hanzi with tone marks, Hanzi and pinyin.  When the cursor hovers over a character the dictionary pops up.  F9 gives you homonyms. - gwc

Tuesday, September 13, 2016

Johnson & Johnson, Multi-District Litigations, MDL, Biomet and Stryker, Zimmer, DePuy, ASR, Court of Appeals

Johnson & Johnson, Multi-District Litigations, MDL, Biomet and Stryker, Zimmer, DePuy, ASR, Court of Appeals

Dallas, TX
The latest hip replacement litigation news is the DePuy Pinnacle trials, slated for late September in Dallas federal Court, Northern District. “This is the last big group of hip cases going to trial with the exception of Johnson & Johnson,” says attorney and practicing cardiologist Shezad Malik. “We are hopeful that a successful and sizable verdict on this third bellwether trial may push J&J to the settlement table.”

For the past four years the DePuy Pinnacle claims have been set up in Multi-District Litigations (MDL’s) and as of August 15, 2016 approximately 8,500 cases are pending in the Northern District of Texas. All these cases have similar allegations: the Pinnacle is allegedly defective in design and DePuy failed to test it adequately - it was fast-tracked through the 501k process.

And the DePuy Pinnacle is similar to other brands of hip replacements. Biomet and Stryker, Zimmer and others are all plagued by design defects. “Biomet and Zimmer already settled. They all know metal-on-metal hip replacements are a bad product on the market so the chickens have come home to roost,” says Malik. And J&J chickens will likely follow…

From January 1, 2010 through December 31, 2010, the FDA received more than 500 adverse event reports regarding the DePuy Pinnacle, including patients who required revision surgery because the implant was loosening or coming out of position. And many hip recipients reported they had been diagnosed with metallosis, which is caused when metallic debris comes lose from a hip replacement device and is absorbed by the surrounding tissue. (In large amounts and different forms, chromium can be toxic and carcinogenic and cobalt has the potential for liver damage and other long term adverse health issues, which is caused by inflammation at the cellular level.)

In the DePuy ASR trials, jurors were shown an internal DePuy analysis from 2011 that indicated a 37 percent failure rate of ASR hips within 4.5 years, and that Australian national registry data showed in 2012 that 44 percent failed after seven years. “The Pinnacle is also a faulty design and has the same defects as other DePuy models,” adds Malik. “The main difference is that the ASR was recalled and the Pinnacle was not recalled.”


DePuy Pinnacle $502 Million Appeal Dragging On
$500 Million DePuy Pinnacle Jury Award Slashed in Texas
DePuy Seeks a Stay of Next Pinnacle Bellwether Trial

So far there have been two DePuy Pinnacle trials. One took place over a year ago with a defense verdict and earlier this year a bellwether trial that consolidated five cases resulted in a $500 million verdict in compensatory and punitive damages. “The judge later reduced the settlement amount to $150 million for those folks based on Texas law that caps pain and suffering awards,” Malik explains. “Since that verdict the defense made a motion for a new trial. It was appealed to the 5th circuit and they filed a mandamus against the judge (in this case, the appellate process is asking the Court of Appeals to review the judge’s decisions). As of Sept 12, the Court of Appeals has not reached a decision and the trials are scheduled to go forward in the next few weeks.”

Malik says that all the hip replacements are continuing to fail. “We expect them to be a problem for the next five years,” he explains. “People who had implants in the early 2000s and even five or six years ago are now filing claims with us.” Baby boomers in particular were sold a bill of goods. They were told their implant would last 20-25 years. “People expected their hip replacement to outlive them but the reality is far from that.”

Sunday, September 11, 2016

Horrors of work on wtc ruins persist//NPR

Saturday, September 10, 2016

Former EPA head sorta admits mistake on WTC air quality

In a non-apology statement of regret former EPA head admits she was wrong to tell New Yorkers that downtown the post-9/11 air was safe.  Yet she still  voices skepticism about the injury claims, says it was really the city's fault, and that she and the EPA did the best they could: the scientific advice was wrong.  For resources on the World Trade Center disaster site cleanup cases see this page.  There you will find the study of non-smoking firemen who suffered dramatic losses of lung function.

Friday, September 9, 2016

Judge, citing inequality, orders Connecticut to overhaul school funding - NY Times

A narrow mandate from a divided Connecticut  Supreme Court (3-1-3) sent back for trial the state's long-running litigation about inequitable funding of public schools. In Connecticut Coalition for Justice in Education Funding Superior Judge Thomas Moukwasher ruled on September 7 that the state's school funding scheme fails the test of being "reasoned, substantial, and verifiably connected to teaching."  Ouch.  In his 90 page Memorandum of Decision and 156 page finding of facts the judge concluded  that the state's education policies are "so befuddled or misdirected as to be irrational". - GWC
Judge, Citing Inequality, Orders Connecticut to Overhaul Its School System - The New York Times

by Elizabeth A.  Harris

In a decision that could fundamentally reshape public education in Connecticut, the state was ordered on Wednesday to make changes in everything from how schools are financed to which students are eligible to graduate from high school to how teachers are paid and evaluated.
Reading his ruling from the bench for more than two hours, Judge Thomas Moukawsher of State Superior Court in Hartford said that “Connecticut is defaulting on its constitutional duty” to give all children an adequate education.
Judge Moukawsher’s decision was a response to a lawsuit filed more than a decade ago that claimed the state was shortchanging the poorest district when it came to school funding. What separates the decision from those in dozens of similar suits around the country is that rather than addressing money only, it requires the state to rethink nearly every major aspect of its system.
“This is a game changer,” said Joseph P. Ganim, the mayor of Bridgeport, Conn., one of the state’s poorest and lowest-performing school districts. “It’s an indictment of the application of the system, and of the system itself.”
Joseph P. Moodhe, who represented the plaintiffs in the case, Connecticut Coalition for Justice in Education Funding, said that virtually every state had faced an education funding suit. This year, the Kansas Supreme Court ruled that the state’s financing plan created “intolerable” inequities. And in New York, a 2006 lawsuit was supposed to yield additional money in New York City and districts with high poverty rates, but a battle persists over whether the state is meeting its obligations.
William S. Koski, a professor of law and education at Stanford University, called the scope of the ruling “highly unusual.”
“Most of these school finance lawsuits are about numbers, and about whether adequate funding is being provided for whatever learning outcomes the court establishes,” he said. “Really, it’s typically about the money.”
As for the Connecticut ruling, he said, “I would call it a school reform decision rather than a school funding decision.”