Wednesday, February 3, 2016

Ken Stabler and the Disgrace of the NFL Concussion Settlement

"They paid with their brains for our viewing pleasure" says Ken Stabler's longtime partner.  "I looked it in the eye everyday the last fifteen years of his life."
The NFL concussion settlement excludes anyone who died after the date of approval of the class action settlement.  Since the tort system has proven inadequate there should be a legislative solution here, financed by a tax or licensing fee compelling the NFL and the NCAA  and the public schools to pay for the studies, the treatment, the compensation etc. that are attributable to playing football. - gwc
NFL great Ken Stabler had brain disease

Tuesday, February 2, 2016

China unveils first oil spill response plan | Reuters

China unveils first oil spill response plan | Reuters

China's cabinet has approved the country's first oil spill emergency response scheme to be ready by 2020, to tackle increasing risks from offshore leakages, the government said on Monday.
The new regulation - which sets oil clean-up capacity at 1,000 tonnes (7,300 barrels) within 50 nautical miles from shore - came amid a tightening of the country's environmental rules after several oil spills in recent years.
China will be capable of cleaning up 10,000 tonnes of oil discharged in those waters that are prone to high risks and less than 50 nautical miles from the coast, according to a statement on the Chinese government's main web portal.
In addition, coastal cities should be equipped to clean up and recycle 10,000 tonnes of spilled oil, the cabinet said.
By 2020, China will have 191 offshore facilities, 260 emergency boats and 52 onshore facilities as well as trained personnel that can handle emergencies, the cabinet added.
Previously, China had no nationwide oil spill response scheme, according to the cabinet, leaving companies and local governments to set up their own procedures.
ConocoPhillips and CNOOC Ltd have been embroiled in a series of legal claims following oil spills in 2011 in the Bohai Bay that polluted more than 6,200 square kilometers of water.
In 2000, a pipeline blast in the northeastern port of Dalian leaked 1,500 tonnes of heavy crude oil into the sea, and took nearly 8,000 workers and hundreds of fishing boats to clean up.

(Reporting by Meng Meng and Chen Aizhu; Editing by Dale Hudson)

Oyez - Supreme Court Archive May Shut Down // National Law Journal

OTHERWISE: Oyez - Supreme Court Archive May Shut Down // National Law Journal

The Oyez Project - a Supreme Court Archive which features oral arguments before the United States Supreme Court - is a civics resource relied on by many teachers - including me.  Political scientist Jerry Goldman was inspired by my grad school classmate, lawyer/historian Peter Irons.  The star protege of left wing historian Howard Zinn, Irons, a draft resister as a young man, secretly copied the tapes, infuriating Chief Justice William Rehnquist.  Irons' edited Supreme Court transcripts and audio were published as the popular May It Please the Court,used in many classrooms, and a popular gift for lawyer moms and dads, and law student children. 
One would hope that Google or the like would want to fund the project in the future. - gwc

Due Process for Central American Refugees? //ImmigrationProf Blog

OTHERWISE: Due Process for Central American Refugees? //ImmigrationProf Blog

Philip E. Wolgin for the Center for American Progress has a new column that considers major due process failings in the process surrounding the removal process of asylum-seekers arrested in recent the raids of Central American mothers and children and offeres a look at what adequate due process would look like

Monday, February 1, 2016

The False Lure of the Sanders Single-Payer Plan

The False Lure of the Sanders Single-Payer Plan

by Paul Starr (Princeton University)

Wouldn’t it be great if we could just go to the doctor and not pay any bills? After all, isn’t that what they do in other countries, and don’t those countries have lower health-care costs than the United States does? And aren’t private insurance companies the only reason we don’t have that kind of system?

This is the appeal of the Bernie Sanders single-payer health plan. Free health care, with none of the frustrating paperwork of today’s insurance, and with taxes that cost less than insurance premiums—what could be better than that? Of course, the single payer in the Sanders plan is the federal government, which implies concentrating payment and therefore power over health care in Washington. But, at least in this area, many Democrats don’t seem worried about that prospect.

Sanders doesn’t just call for incremental steps toward single-payer. He’s proposing to shift all of health care to federal taxes in one fell swoop. That’s one reason for the enormous, sudden increase in taxes the plan would require—$1.38 trillion on top of existing federal spending, according to Sanders’ own estimates. As Harold Pollack has pointed out, that $1.38 trillion is just about equal to total federal income and estate tax collections in 2014—in other words, the plan would require doubling that revenue. Sanders insists that he’s shown how he would pay for it through a 6.2 increase in payroll taxes (which he calls an “income-based premium paid by employers,” though the cost will fall on employees); a 2.2 percent increase in income taxes on everyone; higher estate taxes; taxing capital gains and interest as ordinary income; limiting tax deductions for the rich; and higher income-tax rates on the upper brackets (which, combined with other increased taxes he’s also calling for, would bring the top marginal federal rate to 77 percent, as Dylan Matthews shows at Vox).

But Sanders’s estimate of the needed increase in taxation, despite its whopping size, is too low. The plan would actually cost another $1.1 trillion a year, according to an analysis by Kenneth Thorpe, a health-care economist at Emory University, who has long experience working with single-payer proponents. In 2006, the Vermont legislature hired Thorpe to cost out a single-payer proposal, and in 2014 progressive legislators in Vermont hired him again. So this is not an estimate from an economist generally opposed to universal health care or to single-payer. Thorpe’s estimates indicate that workers would have to pay an additional 20 percent of compensation to pay for Sanders’s plan.

At Vox, Matthews has probed both Thorpe and the Sanders campaign on some of the specific areas where their numbers diverge. Here’s one stunning detail: When the Sanders campaign released its plan, it estimated $324 billion in annual savings on prescription drugs—until Thorpe noted that the United States spent only $305 billion for that purpose in 2014. (If Trump can expect Mexico to pay for a wall on the border, I suppose Sanders can expect drug companies to pay consumers instead of the other way around.) When Matthews pointed out that it was impossible to save $324 billion out of $305 billion, the Sanders camp cut their savings estimate to $241 billion, while conveniently increasing other projected savings to make up the difference. But $241 billion in drug savings are still implausible, and as the entire episode indicates, the Sanders campaign is simply pulling numbers out of the air.

Saturday, January 30, 2016

The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana by Andrew Kent :: SSRN

OTHERWISE: The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana by Andrew Kent :: SSRN

Andrew Kent, in a forthcoming issue of the American Journal of Legal History, has resurrected the little remembered personality and jurisprudence of Edward D. White, Jr., a Louisianan, Confederate soldier, Redeemer politician, and Chief Justice of the United States. A relentless researcher, Fordham law professor Kent has exhaustively detailed and assessed the sketchy and diffuse records of White’s youthful role as a Confederate loyalist and soldier. Kent probes the mystery of how White, the son of a plantation owner, Congressman and Governor spent the war years in Louisiana, became a soldier and POW however briefly, and afterward opposed Reconstruction.

A United States Senator when named to the Supreme Court by President Grover Cleveland in 1890, White was a southerner who became a `nationalist’ judge supporting expansions of federal authority. Promoted to the chief justiceship by President William Howard Taft in 1910, White in Standard Oil Company of New Jersey v. United States embraced a narrowing construction of the sweeping Sherman Act. The anti-trust measure states at 15 U.S.C. 1 “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” His rule of reason - only unreasonable restraints are barred - remains the foundation of anti-trust law today.

During World War I, White wrote two important decisions in favour of federal emergency powers. Wilson v. New (1917) sustained the Adamson Act of 1916, fixing minimum wages and maximum hours for railroad workers. Military conscription was upheld in the Selective Draft Law Case (1918).

Today’s conservative Justices hark back habitually to the now scriptural Federalist Papers and the compromises of the 1787 Federal Convention. Some expressions - such as those of Antonin Scalia dissenting in the Arizona v. United States immigration law case - employ language evocative of the Articles of Confederation, Article II, if not that of the Confederate States. Scalia there wrote: “The United States is an indivisible “Union of sovereign States.” [Citing Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).] But White, who experienced the defeat of secession and the re-founding of the nation via the Civil War Amendments expressed a remarkably different vision in the 1918 Selective Draft Cases:

under the Constitution as originally framed, state citizenship was primary, and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship, and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship In reviewing the subject, we have hitherto considered it, as it has been argued, from the point of view of the Constitution as it stood prior to the adoption of the Fourteenth Amendment. But to avoid all misapprehension, we briefly direct attention to that Amendment for the purpose of pointing out, as has been frequently done in the past, how completely it broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was otherwise not so clearly made manifest.

Kent has done important service on a number of counts. His meticulous reconstruction of White’s Civil War experience conveys the complexities of wartime life in Louisiana which, though New Orleans fell to the Union on May 1, 1862, remained contested territory throughout the war. This biographical exploration provides an important angle to understand the evolving thinking of a man who as Associate Justice and Chief Justice helped to develop a jurisprudence of national authority which feels quite contrary to the vision embraced by today’s conservatives who embrace not the early Federalists with whom the mature White would have been comfortable but rather the grumbles and cavils of the Jeffersonian Democrats. - gwc


Edward Douglass White (1844-1921) was appointed associate justice of the U.S. Supreme Court in 1894 when he was a sitting U.S. senator, and was elevated to chief justice in 1910. Given his background — White was a Democrat, Confederate veteran, sugar planter, and lawyer from New Orleans, and son of a Louisiana governor — one would have expected White to share the legal and political views of others of his background, class, and region, which were generally hostile to federal power and fervently in favor of white supremacy. Yet White was a nationalist on the Supreme Court. He was considered a de facto Republican by many prominent northern Republicans, and was elevated to the chief’s seat by William Howard Taft. As a justice White voted repeatedly to uphold expansive uses of Congress’s regulatory and taxing powers, including powers first exercised by the Union during the Civil War to tax income and raise armies by conscription. White did not have enlightened racial views, and joined the majority of the Court in Plessy v. Ferguson and other decisions that denied equal rights to African-Americans. But he also wrote the Court’s decisions holding unconstitutional that so-called “grandfather clauses” that were used in the South after the war to prevent African-Americans from voting, and voted in favor of civil rights in other important cases.
Previous biographers have recognized the importance of White’s experience as a Confederate soldier to his life and later judicial and political outlook. But the details they have published about White’s military service have been only brief and vague, and sometimes simply wrong. Relying on a far broader array of original and secondary sources than any previous study, this paper explores what exactly White did, saw, and experienced during the Civil War. Crucially, though, the story is also one about omissions and even deception by White. A newly-discovered document shows that he lied to Federal interrogators about his war service when he was captured in 1865. In later life White rarely spoke of the war, and when he did he offered almost no details about his service. He failed to correct the record when inaccurate biographical details about his service were published. His actual war service was almost certainly much less extensive and honorable than previous biographers have claimed. The most detailed information we possess shows him joining a marauding guerrilla band in rural Louisiana in the closing months of the war.
Later in life, the one thing that White clearly and honestly expressed about the war was deep regret that it occurred at all, anguish about its human toll and effect on his beloved country, and self-criticism about his youthful service on the Confederate side. This picture that emerges of White and his war service is much more complex than offered in previous biographical studies, and provides a surer foundation for assessing his life and judicial work, and accurately understanding his place in the country’s political and legal history.

Friday, January 29, 2016

Philip Morris Casts Doubt On Lung Screening In Boston Trial - Law360

The New York Court of Appeals split 4-3, rejecting the theory on which Massachusetts Supreme Judicial Court allowed plaintiffs to go to trial

Philip Morris Casts Doubt On Lung Screening In Boston Trial - Law360

By Cara Salvatore

Law360, Boston (January 28, 2016, 9:36 PM ET) -- Facing the prospect of bankrolling a medical program for thousands of Marlboro smokers, Philip Morris told a Boston jury Thursday that lung-cancer screenings for healthy smokers can actually end up harming them if doctors pursue invasive follow-ups.

On the first full day of an expected two weeks’ worth of testimony, the 114-year-old cigarette giant tried to discredit the scan that’s at the center of the trial: low-dose computed tomography, or LDCT.

A class of tens of thousands of healthy Massachusetts Marlboro smokers wants Philip Morris to pay for $500-per-test annual LDCT screenings, they said in Wednesday's openings. And their first witnesses, a pulmonologist and a thoracic surgeon, told the jury on Thursday that LDCT can lower smokers’ lung-cancer mortality by 20 percent because it detects abnormal tissue much earlier than X-rays do.

That finding was from the National Lung Screening Trial, or NLST, whose results were published in 2011 in the New England Journal of Medicine.

But Philip Morris said some NLST patients had bad outcomes. Some whose scans showed nodules, even nodules eventually proven benign, were harmed by their follow-ups, said defense attorney Kenneth Parsigian of Latham & Watkins LLP.

Parsigian pointed out “false-positive results treated with invasive procedures” like bronchoscopy, a camera down the throat; thoracotomy, a surgery that delves inside the ribcage; or needle biopsy, which inserts a needle through the chest and into the nodule while the patient is having a CAT scan.

Of the 26,722 smokers who had an LDCT during the multi-year study, 39.1 tested positive at least once. A small number of those underwent an invasive procedure, and a smaller number of those had a major complication. At the end, 87 of the 26,722 had a major complication, including 12 who did not have lung cancer, according to the study.
“Three survived who would have died [with an X-ray instead of an LDCT scan] ... and then three out of a thousand people scanned also had a major complication as the result of a scan finding a nodule,” he said, suggesting it meant LDCTs were a wash.

Mount Sinai Hospital clinical professor of pulmonary medicine Albert Miller, whom Parsigian was cross-examining at the time, responded that those outcomes were specific to the NLST and are unlikely to be replicated often.

“We’ve had three examples of that among 15,000 screenees” in I-ELCAP, the screening program he runs, Miller said.

And Miller said the study revealed the understandable growing pains of a new technology.

“Many of these [NLST] patients had surgeries that might not have been done if there had been more consistent and state-of-the-art follow-up,” Miller said. Doctors now consult an algorithm that provides clear best practices for follow-up, which don’t involve those types of procedures for the smallest nodules to which LDCT is sensitive.

Thoracic surgeon Frederic Grannis, the second witness, told the jury that whatever the issues, LDCT allowed for vastly improved survival over X-rays.

“For most of my career, we didn’t have screening, and we would see a patient only when they had their first symptoms,” Grannis said, noting that those symptoms include coughing up blood, a headache, bone pain from a metastasis or other macro symptoms that appear when a patient is often too close to death to be saved.

Grannis’ clear passion made for highly detailed answers to the questions of plaintiffs’ attorney Steven Phillips, and as Grannis spoke about the many medical groups he’s been a member of and the frequent meetings in which thoracic surgeons and pulmonologists gather to refine the state of the art, he left a sense of the enormity of the industry that exists solely to respond to the work of Philip Morris and its few brethren.

Meanwhile, Miller said LDCT has turned around the prognosis for people with newly discovered lung cancer since it burst onto the scene in 2000.

“It’s just about black and white,” Miller told Phillips. “From a survival rate of 15 percent [under the X-ray regime] to a mortality rate of 15 percent [after a true positive with LDCT] … a remarkable reversal.”

It’s unclear exactly how many people are in the class because the court has sealed those records. But Massachusetts had 815,000 smokers as of 2012, and Marlboro had a 41 percent share of the cigarette market in the U.S. as of 2014, both according to the Centers for Disease Control and Prevention. Assuming a conservative minimum of 30,000 healthy, longtime Marlboro smokers in the state, a complete win for the Massachusetts plaintiffs would cost Philip Morris at least $15 million per year.

The plaintiffs are represented by Kevin Peters of Arrowood Peters LLP, Steven Phillips, Victoria Phillips and Aryeh Taub of Phillips & Paolicelli LLP, Christopher Weld Jr. and Edward Foye of Todd & Weld LLP, and David Strouss of Thornton & Naumes LLP.

Philip Morris is represented by Kenneth Parsigian of Latham & Watkins LLP, Diane Sullivan ofWeil Gotshal & Manges LLP and Lauren Goldman of Mayer Brown LLP.

The case is Donovan et al. v. Philip Morris USA Inc., case number 1:06-cv-12234, in the U.S. District Court for the District of Massachusetts.

Wednesday, January 27, 2016

Second bellwether trial under way for DePuy Pinnacle hip implant | Greensboro Legal Examiner | Greensboro North Carolina Personal Injury Lawyer

Second bellwether trial under way for DePuy Pinnacle hip implant | Greensboro Legal Examiner | Greensboro North Carolina Personal Injury Lawyer

by Emily Beeson

The DePuy Pinnacle hip implant is back on trial in a Texas federal court. Five plaintiffs who received the metal-on-metal hip implant are having their cases presented in one proceeding against manufacturer DePuy, a subsidiary of Johnson & Johnson.
hip debris - Hip Replacement Survivors, Facebook
Image / Hip Replacement Survivors

The trial began on January 8, 2016, when Judge Ed Kinkeade issued an order consolidating the five cases for trial. Eight witnesses have been called by the plaintiffs to date.
Thousands of people across the country anticipate the outcome of the litigation that will affect injury claims by recipients of the metal-on-metal Pinnacle hip implant. The jury hearing these five cases, and DePuy’s defenses, will be a critical voice in determining whether DePuy creates a settlement program to respond to these claims.
In 2013, DePuy began settling claims of individuals injured by its ASR metal-on-metal hip implants after a 2011 recall of the device. The attorneys at Egerton Law have represented dozens of people hurt by this dangerous device.
The similar Pinnacle metal-on-metal hip implant has never been recalled, although it is no longer on the market.
Interestingly, articles in the UK’s Daily Telegraph published on January 24th and 25th, right in the middle of this trial, point to evidence that DePuy was aware of problems with the devices dating back to 2008. In one report, the newspaper states that DePuy “has admitted ‘an error in the measuring techniques’” used to make its Pinnacle metal-on-metal hip replacement devices that could lead to higher wear of the metal alloy used to manufacture the device. Additionally, DePuy is said to have reduced quality control measures by spending less time inspecting implants beginning in 2006.
Metal-on-metal hip implants have had higher revision rates than other hip replacement devices due to high failure rates. Recipients of metal-on-metal hips are advised to regularly have their blood tested for metal ions that can be deposited in the bloodstream, and a revision surgery is recommended if metal levels are beyond a certain threshold.
There will be several more days of testimony in the Texas court before the jury is charged with reaching a verdict. Check back in with Egerton Law for updates as the trial moves forward.

Monday, January 18, 2016

Oliver Wendell Holmes and water pollution//Environment, Law, and History:

Causal relationship is always a key problem in "toxic tort"and environmental cleanup litigation. - gwc

Environment, Law, and History: Oliver Wendell Holmes and water pollution

by David Schorr

Yesterday's edition of This Day in Water History notes the anniversary of a historic interstate lawsuit over water pollution, Missouri v Illinois (1906). See my own take after the jump.

January 17, 1900: Fifteen days after Chicago opened the Sanitary and Ship Canal and reversed the course of the Chicago River to discharge sewage into the Mississippi River, Missouri sued Illinois, “…praying for an injunction against the defendants from draining into Mississippi River the sewage and drainage of said sanitary district by way of the Chicago drainage canal and the channels of Desplaines and Illinois river.”

The Bill of Complaint alleged in part:
“That if such plan is carried out it will cause such sewage matter to flow into Mississippi River past the homes and waterworks systems of the inhabitants of the complainant…
That the amount of such undefecated [huh?] sewage matter would be about 1,500 tons daily, and that it will poison the waters of the Mississippi and render them unfit for domestic use, amounting to a direct and continuing nuisance that will endanger the health and lives and irreparably injure the business interests of inhabitants of the complainant…
That the water of the canal had destroyed the value of the water of the Mississippi for drinking and domestic purposes, and had caused much sickness to persons living along the banks of said river in the State of Missouri.”
The opinion in the case was written by Supreme Court Justice, Oliver Wendell Holmes and read in part:
“The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted. The plaintiff obviously must be cautious upon this point, for if this suit should succeed many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the States lower down upon the Mississippi. The distance which the sewage has to travel (357 miles) is not open to debate, but the time of transit to he inferred from experiments with floats is estimated at varying from eight to eighteen and a half days, with forty-eight hours more from intake to distribution, and when corrected by observations of bacteria is greatly prolonged by the defendants. The experiments of the defendants’ experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the experts on the two sides.”

Commentary: In effect, Justice Holmes ruled in favor of Chicago. The experts for St. Louis had failed to prove their case.
Reference: Leighton, Marshall O. 1907. “Pollution of Illinois and Mississippi Rivers by Chicago Sewage: A Digest of the Testimony Taken in the Case of the State of Missouri v. the State of Illinois and the Sanitary District of Chicago.” U.S. Geological Survey, Water Supply and Irrigation Paper No. 194, Series L, Quality of Water, 20, Department of the Interior, Washington, D.C.: U.S. Government Printing Office.

I think Justice Holmes's decision is noteworthy in three respects: