TORTS TODAY - course materials & news for Torts, Business Torts, Product Liability, and Remedies students of George Conk at Fordham Law School gconk@law.fordham.edu
Tuesday, December 13, 2016
SCOTUS denies review of NFL concussion settlement
http://www.si.com/nfl/2016/12/12/supreme-court-nfl-concussion-settlement-retired-players?xid=socialflow_twitter_si
Sunday, December 11, 2016
Is there a constitutional right to literacy?
Detroit civil rights lawsuit attempts to assert a constitutional right to literacy
https://www.theguardian.com/us-news/2016/sep/14/detroit-civil-rights-lawsuit-constitutional-literacy-education?CMP=Share_AndroidApp_Blogger
DeVos pick raises fears in Detroit schools
Trump's choice for education secretary raises fears in Detroit
https://www.theguardian.com/us-news/2016/dec/11/betsy-devos-trump-education-secretary-michigan-charter-schools?CMP=Share_AndroidApp_Blogger
Friday, December 9, 2016
Sunday, December 4, 2016
Eric Foner reviews ‘American Revolutions’ by Alan Taylor · LRB 6 October 2016
Eric Foner reviews ‘American Revolutions’ by Alan Taylor · LRB 6 October 2016
- American Revolutions: A Continental History, 1750-1804by Alan Taylor
Norton, 704 pp, £30.00, November, ISBN 978 0 393 08281 4
The racism, xenophobia and violence of Donald Trump’s presidential campaign is widely seen as an aberration, as if reasoned debate had been the default mode of American politics. But precursors to Trump do exist, candidates who struck electoral gold by appealing to exaggerated fears, real grievances and visceral prejudices. Among Trump’s predecessors are the anti-immigrant Know-Nothings of the 1850s, white supremacist politicians of the Jim Crow era, and more recent hucksters and demagogues including Joe McCarthy and George Wallace. Not to mention more respectable types such as Richard Nixon, whose ‘Southern strategy’ offered a blueprint for mobilising white resentment over the gains of the Civil Rights movement. (That ‘respectable’ and ‘Nixon’ can be included in the same sentence illustrates how far our political standards have evolved since the 1970s.) Violence isn’t unknown in American political history. The 19th century saw fistfights in Congress and riots at election time in major American cities. Until well into the 20th century, Southern blacks who wanted to exercise the right to vote faced violent retribution from the Ku Klux Klan and kindred groups.
Where does all this originate? In American Revolutions, Alan Taylor offers a surprising answer: the struggle for independence itself. Racism, violence, scurrilous attacks on opponents: all, he argues, were part of American political culture from the outset. Taylor breaks decisively with a trope of Cold War propaganda which has worked its way into historical scholarship: the idea that unlike the ‘bad’ French and Russian Revolutions, which degenerated into violent class conflict, a united American people rebelled against British overlords with restraint and decorum. In fact, as he makes clear, the American Revolution was a bitter, multi-sided conflict that pitted Loyalists against Patriots and white Americans against blacks and Indians. Hence the plural in his title.
Thursday, December 1, 2016
BREAKING: 3rd J&J Hip Implant Bellwether Delivers $1B Verdict - Law360
BREAKING: 3rd J&J Hip Implant Bellwether Delivers $1B Verdict - Law360
by Jess Krochtengel
Law360, Dallas (December 1, 2016, 5:14 PM EST) -- A Texas federal jury on Thursday found Johnson & Johnson’s DePuy Orthopaedics Inc. unit liable for more than $1.04 billion in a six-plaintiff bellwether trial targeting metal-shedding artificial hips that are part of its Pinnacle line, dwarfing the $150 million verdict J&J is on the hook for after a previous bellwether.
After a two-month trial that closed Nov. 30, jurors deliberated for less than a day before finding J&J and DePuy had negligently designed the hip implant, failed to warn surgeons about dangerous conditions related to the implant and concealed the implant’s risks. The verdict includes between $4 million and $6 million per plaintiff in damages for physical injuries and pain and suffering, $1 million each to four spouses for loss of consortium and more than $504 million against each of DePuy and J&J in punitive damages, after the jury found the companies had acted with malice or fraud.
DePuy and J&J were each found liable for negligent design defect, negligent failure to warn, strict liability failure to warn, failure to recall, negligent misrepresentation, intentional misrepresentation and fraudulent concealment. J&J was also found liable for aiding and abetting DePuy in each of the seven causes of action. The jury found J&J did not conspire with DePuy on the design defect claim, but did find J&J liable for conspiracy on the other six claims.
Because the six plaintiffs are from California, they are not [would not have been] subject to the same punitive damages cap that slashed by more than two-thirds the $502 million verdictfrom the second bellwether trial, which involved Texas plaintiffs. J&J previously won the first bellwether trial, which involved one plaintiff from Montana.
Before the third bellwether got underway, J&J complained it was being hit with unfair pretrial rulings, and during the trial, J&J continued to raise objections to perceived advantages for the plaintiffs. The case involved six plaintiffs from California, who each had to undergo “revision surgeries” after being fitted with metal-on-metal artificial hip systems made by DePuy, known as the Pinnacle hip system’s Ultamet variety.
At the MDL’s heart are allegations that friction between the device’s metal socket and metal ball head rubs away billions of microscopic particles with every step, polluting the bloodstream and surrounding tissue with “wear debris” over time. The plaintiffs alleged J&J knew the device was riskier than others available but still pushed it aggressively, even paying kickbacks to amenable surgeons.
In closing arguments, plaintiffs' lawyer Mark Lanier of The Lanier Law Firm had asked the jury to impose a stiff enough penalty on Johnson & Johnson that the company would change its behavior with future medical devices. He had suggested a $500 million punitive award would hardly be felt by a company worth $72 billion.
J&J maintains it acted appropriately and responsibly in the development, testing and marketing of the Ultamet product. During its opening, the company questioned whether the patients might have had hypersensitive responses to the implants, and suggested the devices were wrongly positioned in their bodies because of doctor error, which it said would lead to the excessive wear.
In a measured closing argument, defense lawyer Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC had walked jurors through the 96-page, 33-question jury charge, pointing out what he said were holes in the plaintiffs' case and a failure to present evidence supporting the plaintiffs' claims.
From the outset, J&J had raised complaints about how the trial was conducted. It launched a mistrial motion immediately after the plaintiffs’ opening statement, arguing plaintiffs’ lawyer Mark Lanier had improperly referred to illegal bribes and kickbacks — the subject of a 2007 deferred-prosecution agreement. Days later, it sought a mistrial after the introduction of what it said were misleading ads that ran in orthopedic journals, and filed another mistrial motion aimed at the suggestion by plaintiffs its metal-on-metal implants could increase patients’ risk of cancer and other systemic injuries.
J&J also complained that it was on the losing end of improper pretrial rulings, saying MDL decisions had undermined the chances for a fair or meaningful result.
It argued Texas federal court was the improper jurisdiction for a trial involving California plaintiffs, said the consolidation of six plaintiffs into one trial prejudiced its ability to present its defense and argued it had wrongly been shut out of the process of selecting plaintiffs for the trial. The company also said the trial court unfairly allowed witnesses to testify remotelywhen no special circumstances demanded it, even making an ultimately unsuccessful request to the Fifth Circuit to stop the practice.
The next bellwether is set to begin in September 2017, with the parties preparing for 10 plaintiffs all from New York. J&J has objected to proceeding with any more trials in the MDL until the appeals from the second bellwether trial have been resolved, and argues the Texas federal court lacks jurisdiction over out-of-state residents.
The patients are represented by W. Mark Lanier of The Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Jayne Conroy of Simmons Hanly Conroy LLC and Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger, among others.
DePuy and Johnson & Johnson are represented by Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC, John Anderson of Stoel Rives LLP, Dawn Estes of Estes Thorne & Carr, Michael Powell and Seth Roberts of Locke Lord LLP and Stephen J. Harburg, John H. Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.
The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.
by Jess Krochtengel
Law360, Dallas (December 1, 2016, 5:14 PM EST) -- A Texas federal jury on Thursday found Johnson & Johnson’s DePuy Orthopaedics Inc. unit liable for more than $1.04 billion in a six-plaintiff bellwether trial targeting metal-shedding artificial hips that are part of its Pinnacle line, dwarfing the $150 million verdict J&J is on the hook for after a previous bellwether.
After a two-month trial that closed Nov. 30, jurors deliberated for less than a day before finding J&J and DePuy had negligently designed the hip implant, failed to warn surgeons about dangerous conditions related to the implant and concealed the implant’s risks. The verdict includes between $4 million and $6 million per plaintiff in damages for physical injuries and pain and suffering, $1 million each to four spouses for loss of consortium and more than $504 million against each of DePuy and J&J in punitive damages, after the jury found the companies had acted with malice or fraud.
DePuy and J&J were each found liable for negligent design defect, negligent failure to warn, strict liability failure to warn, failure to recall, negligent misrepresentation, intentional misrepresentation and fraudulent concealment. J&J was also found liable for aiding and abetting DePuy in each of the seven causes of action. The jury found J&J did not conspire with DePuy on the design defect claim, but did find J&J liable for conspiracy on the other six claims.
Because the six plaintiffs are from California, they are not [would not have been] subject to the same punitive damages cap that slashed by more than two-thirds the $502 million verdictfrom the second bellwether trial, which involved Texas plaintiffs. J&J previously won the first bellwether trial, which involved one plaintiff from Montana.
Before the third bellwether got underway, J&J complained it was being hit with unfair pretrial rulings, and during the trial, J&J continued to raise objections to perceived advantages for the plaintiffs. The case involved six plaintiffs from California, who each had to undergo “revision surgeries” after being fitted with metal-on-metal artificial hip systems made by DePuy, known as the Pinnacle hip system’s Ultamet variety.
At the MDL’s heart are allegations that friction between the device’s metal socket and metal ball head rubs away billions of microscopic particles with every step, polluting the bloodstream and surrounding tissue with “wear debris” over time. The plaintiffs alleged J&J knew the device was riskier than others available but still pushed it aggressively, even paying kickbacks to amenable surgeons.
In closing arguments, plaintiffs' lawyer Mark Lanier of The Lanier Law Firm had asked the jury to impose a stiff enough penalty on Johnson & Johnson that the company would change its behavior with future medical devices. He had suggested a $500 million punitive award would hardly be felt by a company worth $72 billion.
J&J maintains it acted appropriately and responsibly in the development, testing and marketing of the Ultamet product. During its opening, the company questioned whether the patients might have had hypersensitive responses to the implants, and suggested the devices were wrongly positioned in their bodies because of doctor error, which it said would lead to the excessive wear.
In a measured closing argument, defense lawyer Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC had walked jurors through the 96-page, 33-question jury charge, pointing out what he said were holes in the plaintiffs' case and a failure to present evidence supporting the plaintiffs' claims.
From the outset, J&J had raised complaints about how the trial was conducted. It launched a mistrial motion immediately after the plaintiffs’ opening statement, arguing plaintiffs’ lawyer Mark Lanier had improperly referred to illegal bribes and kickbacks — the subject of a 2007 deferred-prosecution agreement. Days later, it sought a mistrial after the introduction of what it said were misleading ads that ran in orthopedic journals, and filed another mistrial motion aimed at the suggestion by plaintiffs its metal-on-metal implants could increase patients’ risk of cancer and other systemic injuries.
J&J also complained that it was on the losing end of improper pretrial rulings, saying MDL decisions had undermined the chances for a fair or meaningful result.
It argued Texas federal court was the improper jurisdiction for a trial involving California plaintiffs, said the consolidation of six plaintiffs into one trial prejudiced its ability to present its defense and argued it had wrongly been shut out of the process of selecting plaintiffs for the trial. The company also said the trial court unfairly allowed witnesses to testify remotelywhen no special circumstances demanded it, even making an ultimately unsuccessful request to the Fifth Circuit to stop the practice.
The next bellwether is set to begin in September 2017, with the parties preparing for 10 plaintiffs all from New York. J&J has objected to proceeding with any more trials in the MDL until the appeals from the second bellwether trial have been resolved, and argues the Texas federal court lacks jurisdiction over out-of-state residents.
The patients are represented by W. Mark Lanier of The Lanier Law Firm, Richard Arsenault of Neblett Beard & Arsenault, Jayne Conroy of Simmons Hanly Conroy LLC and Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger, among others.
DePuy and Johnson & Johnson are represented by Steve Quattlebaum of Quattlebaum Grooms Tull & Burrow PLLC, John Anderson of Stoel Rives LLP, Dawn Estes of Estes Thorne & Carr, Michael Powell and Seth Roberts of Locke Lord LLP and Stephen J. Harburg, John H. Beisner, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.
The MDL is In re: DePuy Orthopaedics Inc. Pinnacle Hip Implant Products Liability Litigation, case number 3:11-md-02244, in the U.S. District Court for the Northern District of Texas.
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