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."

Sunday, October 19, 2014

Feinberg backs BP bid to overturn settlement

Kenneth Feinberg, who worked for BP settling Gulf oil spill cases while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor.  He has urged the Supreme Court to grant cert in BP's attack on the deal it negotiated but now regrets in part.

His amicus brief declares "Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system."  ``Selected by Executive Branch officials' is cagey.  True for the 9/11 Fund, not for the BP spill.  He was "selected" by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.

In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator.  They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered "Gulf Coast Claims Facility".  Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge.   MDL judge Carl Barbier ruled that Feinberg was BP's agent. - gwc

Mass Tort Litigation Blog:

By Alexandra Lahav (UConn Law School)
The papers in the Deepwater Horizon Settlement cert petition are mostly in.   The case is BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc. -- you can find the documents on SCOTUSBLOG.

BP's basic argument is that the settlement approved by Judge Barbier in the mass tort class action against it was ultra vires because it contemplated giving money to people who were, according to BP, not injured.  The plaintiffs respond that BP is just trying to overturn a settlement it championed through the backdoor now that its unhappy with the deal.

One of the most interesting briefs filed in this dispute is from Kenneth Feinberg, who oversaw both the 9/11 Victims Compensation Fund and the Gulf Coast Claims Facility.
The latter was the entity that settled claims arising out of the Deepwater Horizon oil spill immediately after it happened.

Feinberg is a world class mediator and one of the most prominent figures in the mass tort world.   The class action settlement that BP is now disputing is the successor to the Gulf Coast Claims Facility, which he headed.   What the class action did that the Gulf Coast Claims Facility could not do is give BP global peace. In other words, all civil claims against BP arising out of the oil spill are precluded by that class action settlement.
Feinberg's brief asks the Supreme Court to grant cert.  The argument is basically the following: claim facilities like the ones he ran apply a causation requirement that parallels that of the tort system. But, he argues, the settlement agreed to by BP does not include as strong a causation requirement, and this threatens the possibility of future compensation funds to solve mass torts. The brief explains:

..the Fifth Circuit's decisions in this case affecting the causation standard, if permitted to stand, threaten to make these sorely needed alternatives to mass tort litigation unlikely to be replicated.  Future funds would either adopt the Fifth Circuit's new standard, thereby threatening to overwhelm the claims process with spurious claims, or continue to require causation, thereby channeling claimants toward litigation where the burden of proof is lower. (Feinberg petition at 6).
This argument seems to me to be just wrong.  The settlement imposed a looser causation requirement than tort law requires.  But that causation requirement was agreed to in order for claimants collect under the settlement; it is not the causation requirement of the substantive law. In the future, if a defendant perferred to create a settlement fund of the Feinberg-ian variety, they could do so and rest "easy" that the causation requirement of the substantive law remains as it always was. (Whether the requirement of specific causation is the best requirement from a normative point of view in mass tort litigation I leave to another day - AL)."
read more at link above
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Saturday, October 18, 2014

Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog



Federal District Court Judge Nelva G. Ramos, in a comprehensive opinion, found that the burdens of getting a photo ID as required by Texas law violated not only equal protection under the 14th but also the 24th Amendment to the Constitution which bans poll taxes. The court held that "every form of SB 14-qualified ID available to the general public is issued at a cost".The Texas Legislature, motivated by fears of the emerging minority vote, intentionally sought to reduce their votes.  The Fifth Circuit - probably the most conservative in the country - stayed the District Court's injunction against the Texas voter ID law.  Today the U.S. Supreme Court over dissent let the Circuit stay stand.  - gwc


The Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog

by Lyle Denniston

 "The Court won’t interrupt Texas voter ID law
In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study. [Order and dissent]

 This apparently was the first time since 1982 that the Court has allowed a law restricting voters’ rights to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities.   A U.S. District Court judge in Corpus Christi struck down the ID law last week after a nine-day trial, but it now awaits review by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the trial judge’s ruling.

 The Justice Department has indicated that the case is likely to return to the Supreme Court after the appeals court rules.  Neither the Fifth Circuit’s action so far nor the Supreme Court’s Saturday order dealt with the issue of the law’s constitutionality.  The ultimate validity of the law, described by Saturday’s dissenters as “the strictest regime in the country,” probably depends upon Supreme Court review.


The Saturday order, for which a number of news organizations had kept a vigil through the night in anticipation of its release, did not disclose how six of the Justices had voted.

But, because it would have taken the votes of at least five to have reached the result, it was clear that the order had majority support.   The majority gave no explanation for its action.

Justice Ruth Bader Ginsburg wrote a dissenting opinion of more than six pages, joined by Justices Elena Kagan and Sonia Sotomayor.



The opinion, though written mostly in even tones, in substance was quite critical of the law, of Texas’s handling of the controversy over the law and its history of racial discrimination, and of the Fifth Circuit for clearing the way for the law to be used.

Much of the Ginsburg opinion closely tracked the arguments that the Corpus Christi judge had enlisted in finding the law to be the result of intentional discrimination, a violation of the Voting Rights Act of 1965, and an unconstitutional poll tax in violation of the Twenty-Fourth Amendment because of the fees required to get a valid ID.

 “The greatest threat to public confidence in elections in this case,” Ginsburg wrote, “is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”"...........

keep reading at link above



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IBM investigation: leaked BP settlement docs

http://louisianarecord.com/news/264034-ibm-report-independent-journalist-covering-bp-case-investigated-over-leaked-emails

Friday, October 17, 2014

O'Reilly admits he's obnoxious

http://www.salon.com/2014/10/17/bill_oreilly_finally_admits_it_im_really_obnoxious/?utm_source=twitter&utm_medium=socialflow

Thursday, October 16, 2014

Juneau: BP not 'candid' in attempt to oust him

Juneau: BP not 'candid' in attempt to oust him

NEW ORLEANS -- As claims administrator Patrick Juneau responded to BP's effort to oust him Wednesday, plaintiffs' lawyers rushed to his defense and questioned if BP was leveling "outrageous and unfounded accusations" against Juneau in hopes that Judge Carl Barbier would sanction BP and open new avenues for the oil giant to appeal.
BP CEO Bob Dudley has accused Juneau of "hijacking" and "willfully misinterpreting" the settlement. Last month BP filed a motion to have Juneau removed because he had a contract with the state of Louisiana advising the government about the claims payment process of Ken Feinberg, the man in charge of compensation before the 2012 court settlement.
Juneau said in a brief filed Wednesday that no fewer than six BP attorneys and executives knew about his role as a liaison for the state before the company asked the court to let Juneau serve as independent claims administrator. Juneau also said he told BP verbally about his role as an attorney for Louisiana and did not consider it a conflict of interest because it had nothing to do with the litigation between plaintiffs and BP or a separate suit filed by the state against the oil giant.
Juneau said BP was not being "fully candid with the court" and was wrong to say that he had served "as a lawyer in the matter in controversy."
"Louisiana's legal claims against BP, whenever filed, are irrelevant as to Mr. Juneau because Mr. Juneau played no role in preparing, filing, or litigating those claims for relief," Juneau's attorney wrote. "Mr. Juneau was hired to provide 'advice and counsel to the State . . . related to the claims process and allocation protocols utilized and developed by the Responsible Parties associated with and/or arising from the Deepwater Horizon Oil Spill,' and these services did 'not include litigation.'"
The attorneys representing the settlement class also filed briefs in court Wednesday saying BP's accusations against Juneau are so far out of bounds that they deserve sanctions, but quickly added, "To be clear, Class Counsel does not seek sanctions at this time."


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Bill O'Reilly Extended Interview - The Daily Show | Comedy Central

Exclusive - Bill O'Reilly Extended Interview - The Daily Show - Video Clip | Comedy Central

Another Levittowner - interviewed by Jon Stewart

"all I want from you is..I want you to admit that there is such a thing as "white privilege".

You grew up in Levittown - could Black people live there?





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