Tuesday, September 30, 2014

Brain Injury Association seeks amicus status in NFL Concussion Litigation

The Brain Injury Association of America has moved to intervene as a friend of the court in the NFL concussion litigation.  Federal District Judge Anita Brody must approve the proposed settlement as fair for the agreement to become effective. -gwc

In its Memorandum of Law supported by the declaration of Doctors Brent Masel and Gregory O'Shanick two specialists in traumatic brain injury, the BIAA offers its aid to the court.  The Association is skeptical of the proposed settlement on two counts:

1) Numerous physical and behavioral consequences of TBI are excluded
from the list of qualifying diagnoses for treatment and compensation
under the settlement.

The physicians explain that a "mild TBI, also known as a concussion, is a complex pathophysiological process induced by biomechanical forces to the head or to another part of the body that transmit to the head. The injury produces an alteration of brain function that results in a wide range of neurological, physical, cognitive, and neuropsychological impairments. These impairments can appear on an intermittent or persistent basis immediately or as many as ten or more years after injury."

2) The settlement’s approach to diagnosis of neurocognitive impairment
is deeply flawed and will serve to exclude retired NFL players and
limit their access to medical benefits and compensation.

Masel and O'Shanick explain that the
"determination of eligibility is heavily weighted towards those with severe memory dysfunction and/or evidence of neuromuscular abnormality, which is reflected in the reliance on neuropsychological evaluation in isolation from other indices of functional impairment in day-to-day settings (including information from reliable family members, etc.). In addition, the specification of a basic neurological evaluation excludes the abundance of literature on the multiplicity of other neurological abnormalities potentially present after mild TBI that would be undetected by a “basic” neurological examination. To be maximally effective at identifying those players with residual deficits, it is well accepted by the brain injury professional community that an approach that is more holistic, human-based, and less linguistically reliant is preferred. A more broadly based performance assessment that will not under-estimate pre-morbid intelligence for a personal baseline TBI comparison is needed. Such subtleties reinforce the need for clinical experience to make proper judgment in these assessments."

Sunday, September 28, 2014

Wisconsin will enact voter ID law denounced as 'recipe for chaos' | World news | theguardian.com

Wisconsin will enact voter ID law denounced as 'recipe for chaos' | World news | theguardian.com:

by Zoe Sullivan // The Guardian

"A controversial voter ID law in Wisconsin, which critics fear will disenfranchise thousands of voters in the November midterm elections, must be implemented after a federal appeals court turned down a request to re-hear a legal challenge "en banc".

The Seventh Circuit Court of Appeals in Chicago declined to take up the application to hear the challenge before its full panel of judges. On 12 September, three judges stayed an injunction issued by a district court that had prevented the law’s implementation.

With less than six weeks to go until the 4 November midterms, voter-rights advocates fear chaos as people rush to get the required identification, and confusion at the polls as election workers and voters struggle with the new rules.

Previous testimony in the case indicated that about 300,000 people who had previously been eligible to vote will have difficulty obtaining the identification now needed to cast their ballots. The plaintiffs in the voter ID cases include Ruthelle Frank, the League of United Latin American Citizens of Wisconsin, the League of Women Voters of Wisconsin, and the Advancement Project."

Friday’s order stated that the judges were divided on whether to re-hear the case. It also stated: “Chief Judge Wood and Judges Posner, Rovner, Williams and Hamilton voted to hear this matter en banc. In the coming days, members of the court may file opinions explaining their votes.”

According to Wisconsin Public Radio, all five judges who rejected the request for a re-hearing were appointed by Republicans, as were two of the five who voted in favor of the petition.

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Tuesday, September 23, 2014

Prosser and his Influence // Abraham and White

William L. Prosser

Kenneth S. Abraham and G. Edward White have done us the favor of assessing “Prosser and his Influence”.  Prosser is, of course, William Prosser - the legendary torts treatise writer and ALI 2d Restatement of Torts Reporter.  After a brief biographical sketch (he was no charmer and no progressive) the Virginia law professors analyze the strategy and style of Prosser’s torts treatise as a window on his outsized influence on the law.   Abraham and White identify a method that could be called “boldly asserted, plausibly maintained”.
By identifying “emerging trends” in the law - such as the torts of invasion of privacy and intentional infliction of emotional distress (IIED) - Prosser sought to give doctrinal coherence to the cacophony of tort law.  The project was welcomed by lawyers who saw opportunities to explain and advance the law by doctrinal argument.  This was a much more promising tool than the anarchy offered by Legal Realists who saw only contending forces rather than logical development in the law.  His assertions often had less support than his confident but carefully qualified language suggested.  But he was perspicacious in many respects about how the law would develop.  Prosser’s recognition - and advocacy - of the torts of IIED and breach of privacy laid the foundation for important developments in recognition of dignitary harms, such as the concept of the “hostile environment” in workplace discrimination actions brought by women and ethnic minorities.  - gwc

Prosser and His Influence


Kenneth S. Abraham 

University of Virginia School of Law

G. Edward White 

University of Virginia School of Law 

August 20, 2014

Journal of Tort Law, Forthcoming 
Virginia Public Law and Legal Theory Research Paper No. 2014-51 


This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.

We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.

Saturday, September 20, 2014

British Pharma giant GSK to pay $500M bribery fine in China, offers public apology

The Times reports that China's bribery investigation of the British pharmaceutical global giant Glaxo Smith Kline has ended with a quick trial, a $500 million fine, expulsion of its in-country manager, and a public apology by the company. Although similar sums have been extracted for marketing abuses in the U.S., it is an eye-catching figure for China.
Such a large fine is not explicitly authorized in the PRC's criminal law against bribery.  But in the year 2000 the Supreme People's Court issued regulations regarding use of fines in criminal cases. Article 2 provides that fines should be assessed according to the circumstances, including the unlawful gains realized, the harm done,
Article 2.  The People's Courts according to the circumstances of the crime,  the amount of the unlawful gain, the degree of harm it causes, and making an overall assessment of the criminal offender's ability to pay,  shall impose a fine according to law .  If the criminal law does not explicitly state a standard amount of fine, the amount of the fine cannot be less than 1,000 RMB. (trans. - GWC)
Another interesting aspect of the remedy is the public apology to the "people of china". (below) The company admits only paying bribes to "non-governmental" persons like hospitals and doctors.  Given the extent of  state institutions there is a plea bargained element there, avoiding a GSK admission of violation of the U.S. Foreign Corrupt Practices Act. - gwc
by Keith Bradsher and Chris Bucklen // NY Times  September 19, 204
 "Chinese authorities accused Glaxo of bribing hospitals and doctors, channeling illicit kickbacks through travel agenciesand pharmaceutical industry associations — a scheme that brought the company higher drug prices and illegal revenue of more than $150 million. In a rare move, authorities also prosecuted the foreign-born executive who ran Glaxo’s Chinese unit.After a one-day trial held in secrecy, the court sentenced Glaxo’s British former country manager, Mark Reilly, and four other company managers to potential prison terms of up to four years. The sentences were suspended, allowing the defendants to avoid incarceration if they stay out of trouble, according to Xinhua. The verdict indicated that Mr. Reilly could be promptly deported. The report said they had pleaded guilty and would not appeal."
GSK plc Statement of Apology to the People of China

Following a comprehensive investigation by the Chinese judicial authorities, GSK China Investment Co. Ltd (GSKCI) has been identified according to Chinese law to have offered money or property to non-government personnel in order to obtain improper commercial gains, and has been found guilty of bribing non-government personnel. GSK plc fully accepts the facts and evidence of the investigation, and the verdict of the Chinese judicial authorities. Furthermore, GSK plc sincerely apologises to the Chinese patients, doctors and hospitals, and to the Chinese Government and the Chinese people. GSK plc deeply regrets the damage caused. GSK plc also apologises for the harm caused to individuals who were illegally investigated by GSKCI.

The illegal activities of GSKCI are a clear breach of GSK plc’s governance and compliance procedures; and are wholly contrary to the values and standards we expect from our employees. It is deeply disappointing that these issues were not identified and addressed. GSK plc has reflected deeply and learned from its mistakes, has taken steps to comprehensively rectify the issues identified at the operations of GSKCI, and must work hard to regain the trust of the Chinese people. Today, GSK plc makes a further commitment to the Chinese government and people that GSKCI will take tangible actions to establish itself as a model for reform in China’s healthcare industry: by continuing to invest in China and supporting China's scientific development; and by further development of innovative new medicines and vaccines for diseases prevalent in China. GSKCI will also increase access to its products in both city and rural areas of China through greater expansion of production and through price flexibility.
This long-term development strategy of GSK plc will promote the future health and well-being of the Chinese people, and positively contribute to China’s economic and social development.

BP ~ Don't shorten penalty trial


GM CEO: 'No surprises' at rising recall numbers

GM CEO: 'No surprises' at rising recall numbers:

by Nathan Bomey // Detroit Free Press

 "General Motors CEO Mary Barra said she was not surprised that the number of people killed in crashes connected to an ignition-switch defect is higher than initially reported.

She told reporters Friday morning that she was not taken aback when Ken Feinberg, the man running GM's victim compensation fund, said he has already awarded settlements to the families of 19 people who died in crashes caused by the defect.

GM had identified 13 deaths tied to the ignition switch defect, for which the automaker has recalled 2.6 million small cars.

Barra said she expected Feinberg to find more people affected by the defect.

"There's been so much focus on the original number — but we've always said all along that was based on the information that we had available to us," she said. "There's no surprises. Our goal has been every person impacted is a part of that program and that's the process we're working through.""

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Opioids: Santa Clara sues the drug companies // Daily Show

Update: See CDC on What Clinicians can do to end opioid abuse
The County of Santa Clara, California has filed a complaint against Purdue Pharma and other prominent drug companies.  the Superior Court action alleges that their sale of opioids like oxycodone is a public nuisance , violates the California false advertising act, and the California unfair competition law.  The County seeks restitution, penalties, and injunctive relief.

The innovative effort to reduce use of the prescription pain killers was the subject of a recent Daily Show interview segment.

Wednesday, September 17, 2014

Corporate Lawyers Breaking Bad | centerjd.org

Corporate Lawyers Breaking Bad | centerjd.org:

"By Joanne Doroshow, Center for Justice and Democracy at New York Law School

 I cannot wait for the new Breaking Badspin-off, Better Call Saul, about the always entertaining lawyer, Saul Goodman. For those unfamiliar with Breaking Bad, Saul's a criminal lawyer. No, literally, a CRIMINAL lawyer. Saul already has a new fake website complete with a banner ad, "Welcome Lawbreakers!" It's a joke, of course, not to mention fiction. And yet, I think Saul would find himself right at home in the legal departments of some of today's mega-corporations, at least based on what we've been seeing in court lately. And that's no joke.

 Last week, an extraordinary decision was issued by the federal Third Circuit Court of Appeals in an asbestos case, which really should rock the corporate defense bar. In the case, Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., asbestos victims provided evidence to the court that "that BASF and ['the New York law firm that defended it for years in asbestos cases, Cahill Gordon & Reindel LLP'] systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements." See more here. It was enough evidence to revive a fraud case against BASF and its law firm for "lying about the toxic material, then depriving those injured by it of their day in court."

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ThePopTort: Punitives Damages Get a Boost

ThePopTort: Punitives Damages Get a Boost:

by Center for Justice & Democracy

Punitive damages can be a tough sell. Juries award these kinds of damages to hold reckless companies and others accountable for outrageous misconduct. Yet (or so), they are easy rhetorical targets. “Huge” “arbitrary” and “costly to society" are how Big Business groups like to describe punitive damages. But do the facts tell a different story? Actually, they tell a very different story.
Punitive damages are rarely awarded and are modest in amount: awarded in only about 3 percent of successful tort cases.  And the median punitive award to tort plaintiff winners isn’t in the millions – it’s only about $55,000.  (See more here.) What’s more, appellate judges are cutting them back left and right. Just this week, the 7th Circuit severely reduced a jury award against ConAgra Foods, saying it “does not have to pay nearly $100 million in punitive damages stemming from the explosion at an Illinois grain bin that severely burned three workers.” 
Even in the case against BP for causing the 2010 Deepwater Horizon explosion and oil spill in the Gulf, while the court just found BP to be reckless and grossly negligent, he said, “based on previous rulings in the U.S. Fifth Circuit Court of Appeals, which includes Louisiana, BP cannot be held liable for punitive damages under maritime law.”  He also noted, however, that  “in other circuit courts, BP could be held liable for punitive damages, in addition to compensation for losses.”  (Here we go, U.S. Supreme Court!)
But like a phoenix rising from the ashes comes the Missouri Supreme Court, with a wonderful, unanimous decision this week striking down that state’s $500,000 punitive damages cap as it applies to any common law claim. 
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Oregon Supreme Court Applies Aggregate Settlement Rule in Clerg Sex Abuse Case // Mass Tort Litigation Blog

Mass Tort Litigation Blog:

by Elizabeth Chamblee Burch

On August 21, 2014, the Oregon Supreme Court embraced the ALI's definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients' informed consent before distributing a lump-sum settlement.  In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients' informed consent in writing to the formula or method he devised to divvy up the defendants' lump-sum settlement payments, which violated Rule 1.8(g).  As a result, the court imposed a 90-day suspension as a sanction.
For more on the problems associated with lump-sum settlements, see Howie's article, The Trouble with All-or-Nothing Settlements.

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Tuesday, September 16, 2014

How Stephen King Teaches Writing // The Atlantc

Stephen King believes in diagramming sentences and Strunk & White's Elements of style.  Jessica Fahey interviews him in The Atlantic. - gwc
How Stephen King Teaches Writing - The Atlantic:
by Jessica Fahey

Stephen King’s On Writing: A Memoir of the Craft has been a fixture in my English classroom for years, but it wasn’t until this summer, when I began teaching in a residential drug and alcohol rehab, that I discovered the full measure of its worth. For weeks, I struggled to engage my detoxing, frustrated, and reluctant teenage students. I trotted out all my best lessons and performed all my best tricks, but save for one rousing read-aloud of Poe’s “A Tell-Tale Heart,” I failed to engage their attention or imagination.
Until the day I handed out copies of On Writing. Stephen King’s memoir of the craft is more than an inventory of the writer’s toolbox or a voyeuristic peek into his prolific and successful writing life. King recounts his years as a high school English teacher, his own recovery from drug and alcohol addiction, and his love for his students (“even the Beavis and Butt-Head types”). Most importantly, he captivates the reader with his honest account of the challenges he’s faced, and promises redemption to anyone willing to come to the blank page with a sense of purpose.
I asked King to expound on the parts of On Writing I love most: the nuts and bolts of teaching, the geekiest details of grammar, and his ideas about how to encourage a love of language in all of our students.
For the interview click the headline above

Monday, September 15, 2014

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC

Last spring China amended its environmental protection law.  Now they have released for comment a climate protection law amendment. - gwc

Cleaning China's Smoggy Skies: China Released Draft Air Pollution Law Amendments for Public Comment | Barbara Finamore's Blog | Switchboard, from NRDC: "Though a burst of clear skies on Monday allowed Beijingers to marvel at a magnificent Mid-Autumn Festival moon, a blanket of smog choked the capital the next morning, reminding citizens of China’s grave air pollution woes. However, that same Tuesday, September 9th, the Legislative Affairs Office of China’s State Council released the first draft of the highly-anticipated revisions to the national Air Pollution Prevention and Control Law (hereinafter referred to as the Air Pollution Law), providing hope that blue skies won’t always be so fleeting.

 The State Council’s Legislative Affairs Office, which generates and reviews drafts of national laws and regulations, will be accepting comments on revisions of the law between September 9th and October 8, 2014. Releasing the draft law for public comment at such an early stage of the process is a big step forward for governmental transparency and public participation. The Chinese government does not usually seek public comments on laws until they are submitted to the National People’s Congress (NPC), at which point it becomes more difficult for the public to influence legislation."

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Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words

Here’s what Shakespeare’s plays sounded like with their original English accent | 22 Words: "In this short documentary, linguist David Crystal and his son, actor Ben Crystal, look at the differences between English pronunciation now and how it was spoken 400 years ago. They answer the most basic question you probably have right now — How do you know what it sounded like back then? — and they discuss the value of performing Shakespeare’s plays in the original accent…"

<iframe width="854" height="510" src="//www.youtube.com/embed/gPlpphT7n9s" frameborder="0" allowfullscreen></iframe>

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Friday, September 12, 2014

NFL Estimates 1 in 3 will develop cognitive problems. NY Times

This is the most shocking statement about workplace safety I have ever heard.  If football cannot be made safe it must be banned.  And I doubt it can be made safe. = GWC
N.F.L. Agrees: Brain Trauma in 1 in 3 Players - NYTimes.com:
The National Football League, which for years disputed evidence that its players had a high rate of severe brain damage, has stated in federal court documents that it expects nearly a third of retired players to develop long-term cognitive problems and that the conditions are likely to emerge at “notably younger ages” than in the general population.
The findings are a result of data prepared by actuaries hired by the league and provided to the United States District Court judge presiding over the settlement between the N.F.L. and 5,000 former players who sued the league, alleging that it had hidden the dangers of concussions from them.
“Thus, our assumptions result in prevalence rates by age group that are materially higher than those expected in the general population,” said the report, prepared by the Segal Group for the N.F.L. “Furthermore, the model forecasts that players will develop these diagnoses at notably younger ages than the generation population.”

Thursday, September 11, 2014

Washington High Court Holds Legislature in Contempt in School Funding Case - Law Blog - WSJ

Washington State Supreme Court
Washington High Court Holds Legislature in Contempt in School Funding Case - Law Blog - WSJ:

by Jacob Gershman

 "Washington’s highest court on September 11, 2014 in McCleary v. State of Washington took the rare step of holding the state’s Legislature in contempt for failing to come up with a plan to put billions of dollars into the state’s public education system as required by a 2012 ruling. In January 2014 the Court ordered the state to submit by April 30 a "complete plan for fully implementing its program of basic education for each year between now and the 2017-2018 school year".  The State failed.  In June 2014 the Court ordered the State to show cause why it should not be held in contempt.

The move was the latest chapter in a landmark case brought by teachers’ unions and parents who alleged in a 2007 lawsuit that the state was shortchanging public schools in violation of state constitutional standards.

The state “has known for decades that its funding of public education is constitutionally inadequate,” the unanimous court wrote in its opinion. “This proceeding is therefore the culmination of a long series of events, not merely the result of a single violation.”

The judges in Washington are the latest judicial body to get in the middle of a polarized state education policy fight. The ruling follows a California court decision from June declaring the state’s strong teacher-tenure laws unconstitutional. In that case the plaintiffs were students, and the issue in dispute wasn’t money but rules protecting teachers that critics said were dragging down the quality of education."

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Monday, September 8, 2014

G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis - NYTimes.com

The "Valukas Report" by the law firm Jenner & Block into GM's response to the ignition key defect continues to produce insights into how corporate responsibility took the form of self-protection and self delusion.  - gwc
G.M.’s Board Is Seen as Slow in Reacting to Safety Crisis - NYTimes.com:

by Bill Vlasic

DETROIT — After General Motors emerged from bankruptcy and a government bailout five years ago, the board of directors of the “new G.M.” was expected to keep a more watchful eye on a company that had gone seriously off track.

But on the issue of vehicle safety, the board until recently took a mostly hands-off approach, rarely even discussing the topic beyond periodic reviews of product quality with company executives, according to interviews with current and former board members, as well as G.M. officials with knowledge of the board’s actions.

In February, the initial recall of hundreds of thousands of cars with defective ignition switches was treated in such a routine manner at the board’s monthly meeting that the board’s chairman, Theodore M. Solso, said he had only a vague recollection of the details.

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Saturday, September 6, 2014

Republicans after white supremacy | GOPLifer

Republicans after white supremacy | GOPLifer:
by Chris Ladd
A strategy aimed at consolidating national power by appealing to the racial fears of Southern whites has reached the end of its effectiveness. That does not mean we will stop using it.

It is entirely possible that a perverse new version of the Republican Party, the mirror image of its anti-slavery, Hamiltonian heritage may control its brand going forward. Political outcomes over the next four years may determine whether the Republican Party regains its national footing or retreats into a strategy of regional resistance with dangerous consequences for the country.

A strategy aimed at consolidating national power by appealing to the racial fears of Southern whites has reached the end of its effectiveness. That does not mean we will stop using it.

It is entirely possible that a perverse new version of the Republican Party, the mirror image of its anti-slavery, Hamiltonian heritage may control its brand going forward. Political outcomes over the next four years may determine whether the Republican Party regains its national footing or retreats into a strategy of regional resistance with dangerous consequences for the country.

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J&J Aware of Hip Poisoning Worry in 2001, Lawyer Says - Bloomberg

Lawyer grills DePuy exec Ekdahl in Pinnacle hip trial

J&J Aware of Hip Poisoning Worry in 2001, Lawyer Says - Bloomberg

By Jeff Feeley and Tom Korosec Sep 4, 2014

Johnson & Johnson (JNJ) knew as early as 2001 the metal-on-metal version of its Pinnacle artificial hips might generate debris that could cause metal poisoning, a lawyer said in the first case over the device to go to trial.

A doctor who consulted with J&J’s DePuy unit on the Pinnacle hip made the company aware in February 2001 that the device would require extensive testing of implant patients to see whether they had metal debris in their bloodstreams, Mark Lanier, a lawyer for a Kathleen Herlihy-Paoli, a Montana woman suing over her hips, said today in his questioning of ex-DePuy President Andrew Ekdahl.

In an internal memo, DePuy officials said Dr. Thomas Schmalzried warned the potential release of metal ions was a “major issue for metal-on-metal hips,” according to Lanier. Ekdahl, now chairman of J&J’s DePuy Synthes unit’s global orthopedics business, denied that officials considered cutting marketing efforts over Schmalzried’s concerns.

Herlihy-Paoli’s suit is the first of more than 6,000 cases over the Pinnacle hips, approved for sale in 2000, to be weighed by a jury.

The devices weren’t covered by J&J’s $2.5 billion settlement of claims last year over another line of artificial hips known as ASRs.  In that case, J&J recalled 93,000 ASR hip implants worldwide in August 2010, saying 12 percent failed within five years.

 Failure Rate 

 Herlihy-Paoli claims the metal hips’ flawed design produced cobalt and chromium material that leached into her body, causing an infection that required the devices to be surgically removed. She’s seeking damages for pain, suffering and intentional infliction of emotional distress.

 Lanier said today that internal files from 2012 showed DePuy officials found the metal Pinnacle hips had a 15 percent failure rate after five years of use. Company officials had expected a failure rate of 5 percent over that time period, he said.

Lanier questioned Ekdahl about whether the company misled the public about the metal-on-metal hips’ durability in a 2007 patient-marketing brochure, which said 99.9 percent of the devices were “still in use after five years.”

‘Keep Quiet’

“You knew that was a bogus statement,” Lanier said to the executive. “No, it’s not,” Ekdahl responded.

 The lawyer produced a string of 2008 e-mails between DePuy executives, who said Schmalzried had reviewed a hip recipient’s case that showed extensive tissue damage tied to the device.

The e-mails, made public in court, recounted that Schmalzried had said the extent of the metal-hip patient’s tissue damage was “alarming and concerning.” DePuy officials said in the e-mails that they planned to tell colleagues to “keep quiet for now” about the case Schmalzried highlighted.

Schmalzried, head of the Joint Replacement Institute at St. Vincent Medical Center in Los Angeles, helped DePuy develop the ASR artificial hip. The doctor testified in an ASR case last year that he’d been paid more than $20 million by DePuy for his work on medical devices like artificial hips.

 Lanier also said company files show Dr. John Irving, a Hartford, Connecticut-based orthopedic surgeon, repeatedly contacted DePuy officials to tell them he was seeing high failure rates with Pinnacle metal hips.

In a 2010 letter to Ekdahl, Irving said the wave of problems he’d seen with the metal devices “is an epidemic,” and he considered it to be “borderline unethical to continue to market these products until the issues are elucidated. These products are harming patients.”

Patient’s Suicide

Lanier said Irving contacted DePuy again in 2012 to tell officials that one of his Pinnacle patients who’d complained of pain from the inserts had committed suicide because he “was so depressed and thought he would never resolve” the issue.

 Under questioning by DePuy’s lawyers, Ekdahl said the company sought to make the Pinnacle metal hips’ risks clear in a 2002 educational brochure created for doctors.

The device maker said it was common knowledge among orthopedic surgeons the metal hips could produce metal ions that showed up in patients’ bloodstreams, Ekdahl testified.

 The case is Herlihy-Paoli v. DePuy Orthopaedics Inc., 12-cv-3590, U.S. District Court, Northern District of Texas (Dallas)."

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Genuine patriots- volunteer lawyers at detention centers - NYTimes.com

OTHERWISE: Genuine patriots- volunteer lawyers at detention centers - NYTimes.com:

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A Legal Battle Over Vivian Maier’s Work - NYTimes.com

Astonishingly beautiful work.  Click through to the story.  Reminds me of my very much alive friend and great street photographer Susan Sermonetta.

A Legal Battle Over Vivian Maier’s Work - NYTimes.com

by Randy Kennedy

The story of the street photographer Vivian Maier has always been tangled — she worked much of her life as a nanny, keeping her artistic life a secret, and only after she died in 2009, at the age of 83, nearly penniless and with no family, were her pictures declared to be among the most remarkable of the 20th century. Now a court case in Chicago seeking to name a previously unknown heir is threatening to tie her legacy in knots and could prevent her work from being seen again for years.
The case was filed in June by a former commercial photographer and lawyer, David C. Deal, who said he became fascinated with Maier’s life in law school and took it upon himself to try to track down an heir. He did so, he said, because he was upset that prints of her work — from more than 100,000 negatives found in a storage locker at an auction, containing images now possibly worth millions of dollars — were being sold by people who came to own the negatives but had no family connection to Maier, who spent most of her childhood in France and worked in Chicago, where she died.

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Friday, September 5, 2014

Judge Posner dismisses Wisconsin and Indian gay marriage bans

The decision of District Judge Martin Feldman in Robicheaux v. Caldwell upholding Louisiana's bar on same-sex marriage heartened conservatives (e.g. Justice Scalia acolyte Kevin Walsh in the conservative Catholic blog Mirror of Justice).  Feldman sees the issue as a choice between "democratic processes"and "sincere lifestyle choices".  He opts for democratic process, finding a rational basis for the discrimination because "Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents."

But this week, in Baskin v. Bogan, only nine days after oral argument, the 7th Circuit struck Wisconsin and Indiana's bans in a scathing opinion by Judge Richard Posner, saying
Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.
It won't be long before the United States Supreme Court has to resolve the splits among the lower courts.  Conservatives will stack history and state sovereignty against the rising tide of opinion that accepts homosexuality and same-sex relationships as unobjectionable, or a positive good.  - GWC 

Thursday, September 4, 2014

Third Circuit Says Irreparable Harm Not Presumed in False Advertising Cases

Ferring unsuccessfully sought an injunction against its competitor Watson
which had misrepresented facts, but retracted the unsupported claims

Even though injunctive relief is often granted - especially in patent, copyright, and trademark infringement cases - that injunctive relief is an “extraordinary remedy, which should be granted only in limited circumstances” has remained the often ignored black-letter law. The principle lies at the heart of the maxim that a judge has discretion to to grant or deny a preliminary injunction. The conventional "test" is
(1) whether the party seeking the order has shown a reasonable probability of success on the merits; 
(2) whether they  will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the non-moving party; and (4) whether granting preliminary relief will be in the public interest.
Although courts recite these elements by rote a body of law developed that in certain cases - particularly trademark infringement, patent infringement, and copyright cases the irreparable harm element is presumed.  That is because it is practically impossible to prove what loss one suffered when someone else appropriates your trade name, or misrepresents something about your product or service.  Courts routinely grant injunctions in such cases because damages seem inadequate - hard to prove, and if the conduct continues, sure to cause some harm.  But eight years ago in eBay v. Merc Exchange the Supreme Court rejected such a presumption.  The Supreme Court further cracked the whip in 2008, holding in a Winter v. NRDC - a challenge to Navy sonar practice as harmful to marine mammals - that plaintiffs must show a "likelihood of irreparable harm" to obtain a preliminary injunction.  
The implications of the two rulings have slowly extended beyond patent cases.  The latest court to fall in line is the Third Circuit.  In Ferring Pharmaceutical v. Watson  decided August 26, 2014 the court declared that irreparable harm is not presumed as a matter of law in a Lanham Act false comparative advertising case. Because the competitor Watson had retracted the false statements and its expedrt promsied not to repeat them District Judge Dennis Cavanaugh denied Ferring's request for an injunction.  The 3rd Circuit affirmed, but said it will stiffen its injunction standards.

The court joined the general belt-tightening directed by the high court, writing:
[I]njunctive relief is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22 . Presuming irreparable harm would relieve the plaintiff of her burden to make such a showing.
The Circuit panel acknowledged that it had been somewhat "all over the map":
We note that before Winter, we had not treated the preliminary injunction irreparable harm requirement in a uniform manner, at times requiring a showing of a "possibility," "probability," or "potential" for irreparable harm. See, e.g., Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1458 (3d Cir. 1994) (holding that the plaintiff "failed to demonstrate the possibility of immediate and irreparable harm"); Furlong v. Gudknecht, 808 F.2d 233, 234 (3d Cir. 1986) (noting that the district court considered, inter alia, the "potential for irreparable injury absent temporary relief" in determining whether to grant a preliminary injunction); United Tel. Workers, AFL-CIO v. W. Union Corp., 771 F.2d 699, 703 (3d Cir. 1985) ("In deciding whether to provide preliminary relief, the district court must consider the probability of irreparable injury to the moving party in the absence of such relief . . . ."); United States v. Price, 688 F.2d 204, 211 (3d Cir. 1982) (noting that the "factors which guide the exercise of the courts' equitable discretion" in granting or denying a request for preliminary injunctive relief include "the probability of irreparable injury to the moving party in the absence of relief"). However, in light of Winter, parties seeking a preliminary injunction are now required to demonstrate that "irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22

BP reckless in 2010 Oil Spill, U.S. Judge Rules - NYTimes.com

The Times headline writer makes a mistake here.  They key is the finding of recklessness, not simple negligence.  The Oil Pollution Act has a $75 million cap unless recklessness or violation of federal safety regulations is shown.  BP waived the cap but did not admit recklessness.  Now that the finding has been made it will have major implications for the penalty phase.
In the class action settlement agreement punitive damage claims are waived. 
- gwc
BP Negligent in 2010 Oil Spill, U.S. Judge Rules - NYTimes.com: ""

by Clifford Krauss and Campbell Robertson

A federal judge ruled on Thursday that BP was grossly negligent in the 2010 Gulf of Mexico oil well blowout that killed 11 workers, spilled millions of barrels of oil into the Gulf of Mexico and soiled hundreds of miles of beaches.

“BP’s conduct was reckless,” United States District Court Judge Carl J. Barbier wrote in his sternly worded decision. Judge Barbier also ruled that Transocean, the owner of the rig, and Halliburton, the service company that cemented the well, were negligent in the accident.

But the judge put most of the blame on BP, opening the way to fines of up to $18 billion under the Clean Water Act.

In a 153-page, densely technical decision, Judge Barbier described how BP repeatedly ignored mounting warning signs that the well was unstable, making decisions that he says were “primarily driven by a desire to save time and money, rather than ensuring that the well was secure.”
'via Blog this'

Wednesday, September 3, 2014

BP Moves to Oust Patrick Juneau as Oil Spill Administrator // NOLA

BP moves to oust Juneau as spill claims administrator
by the Associated Press

BP PLC has asked a federal judge to remove Patrick Juneau as administrator of damage claims from its 2010 oil spill, saying he failed to disclose a major conflict of interest.
Tuesday's motion by BP says Juneau represented Louisiana in talks setting up the claims process and pushed for favorable terms for those with claims. BP says that means he's not the neutral person required for the job.
Juneau says he will respond in court.
BP says it recently obtained correspondence between Juneau's law firm and the Gulf Coast Claims Facility showing he argued for liberal compensation, flexible documentation requirements and other terms that would help Louisiana claimants at BP's expense.
BP says Juneau was legally required to disclose any conflict of interest, but didn't do so.

Halliburton settles Gulf Oil Spill claims for $1.1 billion // NY Times

Subject to court approval!
Halliburton Settles Gulf Spill claims for $1.1 Billion //NY Times
by Clifford Krauss
Halliburton, the company contracted by BP to cement the ill-fated Macondo oil well in the Gulf of Mexico, has reached a $1.1 billion settlement with thousands of businesses, individuals and local governments that suffered losses from the 2010 Deepwater Horizon oil rig explosion, the company and plaintiffs announced on Tuesday.
The settlement represents a small fraction of the damages paid out by the companies involved in the accident, which left 11 workers dead, spilled millions of gallons of oil into the gulf and soiled hundreds of miles of beaches. But it goes a long way toward resolving Halliburton’s exposure to liability claims.
Had the cement Halliburton mixed and applied to the well been sturdy enough, the worst offshore oil spill in American history would probably not have occurred, according to several studies of the accident. Four years after the disaster, Halliburton and BP continue to dispute which company was responsible for the faulty cement job.