Monday, September 30, 2013

BP Lied To Feds, Withheld Actual Size Of Gulf Spill, Lawyers Claim

BP Lied To Feds, Withheld Actual Size Of Gulf Spill, Lawyers Claim:
by Michael Kunzelman
"NEW ORLEANS (AP) -- BP lied to the U.S. government and withheld information about the amount of oil spilling into the Gulf of Mexico after its well blew out in 2010, attorneys told a judge Monday.
But lawyers for the London-based oil giant denied those accusations and said there was no way to prepare for such a unique blowout a mile below the sea floor. Second-guessing the company's efforts to cap the well was "Monday morning quarterbacking at its worst," BP attorney Mike Brock said during opening statements of the second phase of a trial over the worst offshore oil spill ever in the U.S.
This part focuses on BP's response to the disaster and is designed help U.S. District Judge Carl Barbier determine much oil spewed into the Gulf.
The government's estimate is some 70 million gallons more than what BP says spilled. Establishing how much oil leaked into the Gulf during the 86-day struggle to cap the well will help figure out the penalties the oil company must pay. Billions of dollars are at stake.
The first phase of the trial centered on what caused the blowout."

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Sunday, September 29, 2013

Torts Blog: New study finds many direct to consumer advertising of prescription drugs are misleading. Is anyone surprised?

Torts Blog: New study finds many direct to consumer advertising of prescription drugs are misleading. Is anyone surprised?:

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Blame the Seafarers? Law in the wake of the Exxon Valdez

The Exxon Valdez spill was famously blamed on a drunken sailor.  The Supreme Court barred punitive damages and maritime law blocked recovery to all but fishermen and those whose property was contaminated by the spill.  The strict liability provisions that followed were good - though the limits on liability are dubious in some respects.  But no one hesitated to criminalize the captain who was found to have been intoxicated.  Similarly the Costa Concordia  captain has been made the principal villain of that wreck on the coast of Italy.  Fontugne argues that criminalization has gone too far. - GWC
Environment, Law, and History: Law in the wake of the Exxon Valdez:
by Elisabeth Fontugne//Stetson College of Law
Abstract: "In 1989, the tanker Exxon Valdez ran aground, spilling enough oil to deface the beaches and inlets of Prince William Sound. A year and a half later, Congress spoke, passing the Oil Pollution Act of 1990. And twenty years later, the Supreme Court enunciated a new bright-line rule for punitive damages in maritime cases, closing out the long years of litigation that had followed the spill. For seafarers, however, the grounding of the Exxon Valdez only marked the beginning. It heralded the advent of an era in which the global criminalization of mariners would become the rule. Putting out to sea had always been risky business. But making landfall, in the wake of the Exxon Valdez spill, could prove more perilous to mariners than any ocean journey. Against the judiciary’s successive interpretations of the tanker’s accident, this Article argues that the grounding of the Exxon Valdez can only be properly understood within its maritime context. It demonstrates that the real punishment for the spill was imposed not on Exxon, but on the men and women who choose to live and work at sea. Finally, it exposes the unfair legal climate in which mariners must now operate, and urges the seafaring community to act to change the law."

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Saturday, September 28, 2013

Billions in penalties at stake for BP in estimates of oil discharged into Gulf | New Orleans

Billions in penalties at stake for BP in estimates of oil discharged into Gulf | New Orleans
NEW ORLEANS - It’s sure to be dry and highly technical, but the second phase of the BP oil spill trial that starts Monday could make a $7 billion difference for the British oil giant.
Already reeling from higher-than-expected costs of a settlement with private plaintiffs, BP is desperately fighting against claims by the U.S. government and private lawyers that they were grossly negligent in the April 2010 oil spill, the largest offshore discharge in American history.
After a first phase that looked at liability for the Macondo well blowout and the resulting deadly explosions on the Deepwater Horizon oil rig, U.S. District Judge Carl Barbier will use the second phase of the trial to hear about BP’s efforts to stop the flow of oil.
The plaintiffs say they will show how the company was unprepared for a spill in spite of documents indicating that it knew just how large and devastating a blowout could be. BP failed again and again in the months after the spill to shut off the flow, and it raged on for 87 days until a capping device finally closed in discharge in mid-July 2010.
The most important fight of the second phase, however, will be over how much oil actually made it into the Gulf from that broken hole a mile under the surface.
The government says it was 4.1 million barrels, based on hydraulic analysis of subsea video and other scientific reviews that determined that 4.9 million barrels spewed out of the hole and 810,000 barrels were successfully collected by BP using tubes and other devices.
But BP claims only 2.45 million barrels really made it into the waters, based on different assessments of the subterranean reservoir of oil and the oil that was successfully collected.
That’s a huge dispute, because if the company is found grossly negligent by Barbier, it would face a maximum pollution fine of $18 billion using the government’s official total, but less than $11 billion based on BP’s total.
The Clean Water Act penalties are capped at $1,100 per barrel spilled for simple negligence. But if Barbier finds gross negligence and willful misconduct by BP, the fines would increase to $4,300 per barrel.
BP has only budgeted for Clean Water Act fines of $3.5 billion, based on its assumption that it won’t be found grossly negligent and on its own high-end calculation of 3.2 million barrels spilled.

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Monday, September 23, 2013

Stents, precedents, and presidents

Stents, precedents, and presidents: "In 2013, what's the meaning of "standard of care," and what are the implications when it doesn't seem to apply to all? Dr Eric Topol takes a look at the much-discussed cardiovascular interventions in former Presidents George W Bush and Bill Clinton and calls for individualized medicine (for all)."

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Friday, September 20, 2013

After Two-Week Delay, First Federal ASR Hip Case Goes to Trial

After Two-Week Delay, First Federal ASR Hip Case Goes to Trial:
After a two-week delay, the first federal trial over Johnson & Johnson’s recalled ASR hip implants is set to begin Monday, Sept. 23, in an Ohio courtroom. The case, brought by 58-year-old Ann McCracken of Rochester, N.Y., could set a precedent for thousands of other plaintiffs who say they also were injured by the devices.
The bellwether case, which is being heard in the U. S. District Court for Northern District of Ohio in Toledo, is the first of 7,860 similar federal lawsuits against Johnson & Johnson’s DePuy Orthopaedics unit to go before a jury. More than 3,600 additional ASR lawsuits against the company are pending in state courts.
The problems with the ASR stem from the design: a metal cup (socket) and a metal ball. Both components are made from chromium and cobalt, and grind against each other during normal movements. This releases metal debris into the patient’s tissues, and can cause metal poisoning and serious tissue and bone damage. To address these complications, patients often require a second surgery, known as revision surgery.

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Wednesday, September 18, 2013

Gulf oil spill claims administrator charges BP is trying to 'slow walk' claims payments |

05juneau2 copy.jpg
Patrick Juneau with BP Gulf Oil spill claimants
Gulf oil spill claims administrator charges BP is trying to 'slow walk' claims payments |
by Mark Schleifstein

The court-appointed administrator of the multibillion-dollar settlement of private economic and medical claims stemming from the BP Deepwater Horizon disaster and oil spill charged Tuesday that BP's attempts to cut his budget are part of a company strategy to halt the payment of valid claims.

"The point will not be lost to any reasonable observer that 'defunding' the settlement program can have effects almost as devastating as stopping it," attorneys representing Claims Administrator Patrick Juneau wrote in papers opposing BP's attempts to cut $45 million from the office's $131 million fourth-quarter budget.

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Saturday, September 7, 2013

NFL Concussion settlement: What is the civil justice system for? PrawfsBlawg

PrawfsBlawg: What is the civil justice system for?:

by Howard Wasserman

The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.
Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.

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BP Claims Administrator Juneau Cleared in Probe by Freeh - Businessweek

BP Claims Administrator Juneau Cleared in Probe by Freeh - Businessweek:
Patrick Juneau - the court-appointed administrator of the BP Gulf oil spill settlements has been slammed by BP and those who reflexively joined the attack like Joe Nocera in the Times.  Judge Barbier appointed the former FBI director to look into BP's charges against Juneau, whose practice was mainly liability defense.   Freeh's report is HERE.- GWC
The administrator of BP Plc (BP/)’s $9.6 billion partial settlement of claims from the 2010 Gulf of Mexico oil spill didn’t engage in any misconduct, an independent investigation found.
Louis Freeh, former director of the Federal Bureau of Investigation, said he had “not found evidence” that Patrick Juneau, the claims administrator, “engaged in any conflict of interest, or unethical or improper conduct.”
Freeh said that while he found “problematic” conduct by certain claims-administration employees, it shouldn’t stall processing payments to spill victims.

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Friday, September 6, 2013

BP Balks at Deal it Struck in Gulf

BP Wants To Halt Deepwater Horizon Claims Process

Thursday, September 5, 2013

SOA charged for Bohai Bay oil misconduct - CHINA -

SOA charged for Bohai Bay oil misconduct - CHINA -
The State Oceanic Administration (SOA) confirmed to the Global Times on Sunday that they are aware of being charged with administrative misconduct for giving production restoration permission to the US-based ConocoPhillips in Bohai Bay.
The official response came after a lawsuit was filed on Friday by the All-China Environment Federation. "We will give the public an explanation soon," Li Mousheng, director of the SOA's press office, told the Global Times. 
ConocoPhillips was ordered to suspend its production in the bay in September 2011, following a series of oil spills in the oil field jointly owned by the State-owned China National Offshore Oil Corporation and ConocoPhillips in June of that year. 
The spills, rated as "severe accidents" by the SOA, tainted some 10 percent of Bohai Bay.
Xu Hongliang, the lawyer representing the federation, told the Global Times that the SOA approved ConocoPhillips production in February 2013 without public hearings or feasibility studies, which contradicted some regulations.
"The federation demanded the SOA make public how it handled the permission, as ConocoPhillips' environmental assessment was approved within a month of it being submitted in October 2012," Xu said, adding that the assessment was carried out by a party that has business links with the company. 
Two spill-affected aquaculture companies in Dongying, Shandong Province, also sued the SOA for administrative inaction after it failed to use the compensation from ConocoPhillips to fix the damages following the spills. 

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Tuesday, September 3, 2013

First Hip Replacement Trial Set to Begin

The first federal bellwether trial against Johnson & Johnson's DePuy orthopaedics is about to begin.  The company faces design defect product liability allegations because it avoided full FDA pre-marketing review thanks to an exception for products that are the "substantial equivalent" of a product on the market before 1976.  Here the change was that the hip implant was all metal.  FDA's lax policies allowed that to be seen as an insubstantial change.  The design caused a high rate of problems due to metal-on-metal friction which released microscopic particles.
J& has been reported ready tosettle - after a series of test case rials known as bellwethers have given both sides a sense of the strengths and weaknesses of a sampling of cases.
The limited FDA review allowed plaintiffs to escape the Supreme Curt's federal preemption bar on design defect cases in Riegel v. Medtronic.  In an opinon by Antonin Scalia the Court spared medical device manufacturers who submitted devices for broader pre-market FDA review. - GWC
First Hip Replacement Trial Set to Begin:
by Amanda Bronstad - National Law Journal

Weitz & Luxenberg's Ellen Relkin
Ellen Relkin - Weitz Luxenberg
The first federal trial over DePuy Orthopaedics Inc.’s metal-on-metal hip replacement device, which is the subject of about 10,000 lawsuits across the country, is scheduled to begin on September 9 in Cleveland.
The case, brought by a woman in Rochester, N.Y., who claims to have a dislocated hip and was forced to undergo surgery to remove her ASR XL hip implant, will be the first bellwether proceeding to face jurors of nearly 8,000 cases coordinated in multidistrict litigation before U.S. District Judge David Katz. Prospective jurors are expected to be brought in on Tuesday.
Ellen Relkin of New York’s Weitz & Luxenberg, co-lead counsel for the plaintiffs’ steering committee in the ASR multidistrict litigation against DePuy, said the trial team will include committee member Eric Kennedy, managing partner of Weisman, Kennedy & Berris in Cleveland; Michelle Kranz of Zoll, Kranz & Borgess in Toledo, Ohio; and local counsel Stephen Schwarz, managing partner of Faraci Lange in Rochester, N.Y.
“We believe this is an appropriate case for bellwether trial since there is a concerning number of re-revisions among ASR patients resulting from injury to the tissue and muscle from metal debris and the two prior trials did not involve re-revisions,” Relkin wrote via email.****
Another trial in state court in Florida is scheduled for November 8. In California, where San Francisco Superior Court Judge Richard Kramer is overseeing about 2,000 cases, the first bellwether trial is scheduled for October 15. And in New Jersey, where DePuy’s parent company, Johnson & Johnson, has headquarters in New Brunswick, Bergen County Superior Court Judge Brian Martinotti has scheduled the first trial of more than 600 cases for October 21.
DePuy, based in Warsaw, Ind., pulled the device from the market on August 24, 2010, but plaintiffs allege the company knew about its problems long before that and failed to warn doctors. Those problems, they claim, include pain, grinding or clicking in the hips and a high metal content in blood tests. On May 6, 2011, the U.S. Food & Drug Administration, which regulates medical devices, ordered 21 manufacturers of metal-on-metal hip implants to conduct surveillance on their products and to assess their safety.

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