Tuesday, December 13, 2016

SCOTUS denies review of NFL concussion settlement


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

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.

Wednesday, November 30, 2016

World, Show Trump (and the Kids) the Money!

Trump towers, Trump golf courses, trump steaks would be valueless if separated from DJT.  He, his gaudy bragadoccio are the brand,are the value.  And now as he has said "the brand is hot".  The Trump presidency goes beyond conflict of interest.  It is monetizing the presidency. - gwc

World, Show Trump (and the Kids) the Money!

by Josh Marshall

The point is that there's no way to sell this operation to Larry Stein and have these gaudy monstrosities become Stein Towers. The value disappears or almost entirely disappears once the name goes. The value of this business is inextricably tied to Trump's (or his immediate family members) owning them and using his name. As we speak he's doing precisely the same thing, just with the value of the Trump name turbocharged with the new "President of the United States" brand which generations of Americans have been building up for almost a quarter of a millennium.

Party building


Sunday, November 27, 2016

How much could Trump’s education secretary damage public schools? Just look at Detroit.

How much could Trump’s education secretary damage public schools? Just look at Detroit.

President-elect Donald Trump has tapped Betsy DeVos, a philanthropist and a strong supporter of school choice, as his education secretary. And although DeVos isn’t a household name, she could end up having a big impact on public school students across the country.
For evidence, just take a look at Detroit — a city where DeVos’ influence shows how an expansion of charter schools without the proper oversight can hurt the quality of education for low-income students.
Throughout DeVos’ career as a school choice advocate, she has aggressively pushed for the expansion of charter schools. Although many charter schools across the country benefit low-income families seeking an alternative to public schools, educational equity advocates often raise concerns that a lack of accountability allows less effective charter schools to thrive. And DeVos has been at the forefront of efforts to push against this accountability.
DeVos sits on the board of the Great Lakes Education Project, which advocates for its education reform priorities in the Michigan state legislature. This group is responsible for pushing the legislature to end its plans for a Detroit commission to regulate charter schools.

Friday, November 18, 2016

Why is it so hard to make a sobriety test for marijuana? | Igor Grant | Opinion | The Guardian

Why is it so hard to make a sobriety test for marijuana? | Igor Grant | Opinion | The Guardian

Unlike alcohol, the amount of pot in someone’s blood doesn’t necessarily correlate with the ability to drive safely. We must learn how to assess the risk

On 8 November, voters in CaliforniaMaineMassachusetts and Nevadaapproved ballot measures to legalize recreational cannabis. It is now legal in a total of eight states. This creates potential problems for road safety. How do we determine who’s impaired and who’s not?
The effects of alcohol vary based on a person’s size and weight, metabolic rate, related food intake and the type and amount of beverage consumed. Even so, alcohol consumption produces fairly straightforward results: the more you drink, the worse you drive. Factors like body size and drinking experience can shift the correlation slightly, but the relationship is still pretty linear, enough to be able to confidently develop a blood alcohol content scale for legally determining drunk driving. Not so with marijuana....
But how do you know when you’re too stoned to drive? How can police tell?
My colleagues and I at the Center for Medicinal Cannabis Research at UC San Diego have received a $1.8m grant from the state of California to gather data about dosages, time and what it takes to impair driving ability – and then create a viable roadside sobriety test for cannabis.
Alcohol and marijuana both affect mental function, which means they can both impair driving ability.
Some elements of cannabis use are similar. Potency of strain affects potency of effect. Marijuana and its active ingredient – THC – alter brain function, affecting processes like attention, perception and coordination, which are necessary for a complex behavior like driving a car.
Regular users tend to become accustomed to the drug, particularly in terms of cognitive disruption or psycho-motor skills. Because they are accustomed to the drug’s effects, this means they may function better relative to naive users....

Friday, November 4, 2016

Fashion's Function in Intellectual Property Law by Christopher Buccafusco, Jeanne C. Fromer :: SSRN

Fashion's Function in Intellectual Property Law by Christopher Buccafusco, Jeanne C. Fromer :: SSRN

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a novel account of fashion’s function. It argues that aspects of garment designs are functional if they affect the perception of the wearer’s body. Clothes are not designed simply to look good. They are also designed to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it offers a solution to Varsity Brands Inc. v. Star Athletica, LLC, the copyright case now pending before the U.S. Supreme Court.

Friday, October 28, 2016

‘All Eyes Are Upon Us,’ by Jason Sokol - The New York Times

‘All Eyes Are Upon Us,’ by Jason Sokol - The New York Times

Race and politics from Boston to Brooklyn

reviewed by David Levering Lewis [biographer of W.E.B. DeBois]

If, as many believe, America’s experiment in postracialism is over, then “All Eyes Are Upon Us” is a prescient book that offers a great deal to explain a national self-deception of stunning brevity. According to Jason Sokol, whose anecdotally rich first book, “There Goes My Everything,” tracked white Southerners variously coping in the civil rights era, historians have paid insufficient attention to the Janus-faced ­responses of white Northerners to the struggles of black Americans. To be sure, monographs by James Goodman and Thomas Sugrue have explored the dark side of Northern race relations. They found that although the dominant racial philosophies of whites in the North and South were antithetical, opportunity for a majority of black men and women in the North was not very different from what it was in the South.

DNC moves to hold RNC in contempt of voter intimidation order

Roger Stone, a key pro-Trump operative got his start as a Nixon dirty trickster. He is up to new tricks.  'Vote for Hillary the new way, text 8888', he tweeted. That was the first exhibit in a motion by the Democratic National Committee which submitted a proposed Order to Show Cause. The DNC seeks an order holding the Republican National Committee in contempt of court and
(b) prohibiting Defendant RNC from allocating any money to fund, reimburse expenses for, or provide support for Donald J. Trump and/or his campaign’s voter intimidation program or his supporters’ plans to “watch” “certain sections” and “other communities”;
(c) directing Defendant RNC to seek reimbursement from the Trump campaign and all state political organizations for any funds previously allocated to fund any prohibited “ballot security” measures, including staff salaries, overhead expenses, training costs and expenses, digital resource expenditures, or any other resources used in any way to promote or facilitate the Trump campaign or state political organization “ballot security” or “integrity” endeavors;
(d) ordering Defendant RNC to distribute the Consent Decree and the relief awarded via this action to every RNC field office with instructions that no person employed by or affiliated with the RNC shall participate in any “ballot security” measures; 

In its brief the DNC seeks to extend for another eight years a 1982 consent decree later modified, extended and uphel in 2010 by the U.S. Court of Appeals in Philadelphia.  Originally issued by the lae federal judge Dickinson Debevoise it bars the Republican Bational Committee from doing anything that has the purpose or effect of suppressing voter turnout.  Further, the RNC is accused of violating its duty to obtain pre-clearance.  The DNC brief asserts that  "The 2009 Consent Decree provides that “[t]he RNC shall be required to notify the DNC and this Court of any proposed ballot security measures at least 10 days before instituting such measures so that this Court may determine their legality and whether they comply with the other terms of the Consent Decree.”"

The RNC has not yet filed answering papers.  A key issue is whether the Tump campaign is an agent of the RNC - or vice versa. - gwc

J&J, Talc Co. Hit With $70M Baby Powder Cancer Verdict - Law360

J&J, Talc Co. Hit With $70M Baby Powder Cancer Verdict - Law360

Law360, Los Angeles (October 27, 2016, 6:54 PM EDT) -- A Missouri jury slammed Johnson & Johnson and its talc supplier with a $70 million verdict late Thursday in a lawsuit filed by a woman who developed ovarian cancer after using J&J's baby powder on her genitals, the third massive verdict in that state's talc litigation.

The verdict is among the highest awarded in cases against J&J over the alleged link between talc and ovarian cancer. (AP)
Jurors in St. Louis found that plaintiff Deborah Giannecchini is owed $575,000 in economic damages and $2 million in non-economic compensatory damages. In addition, they said that J&J should pay $65 million in punitive damages, while talc supplier Imerys Talc America Inc. should pay $2.5 million.

The verdict falls far short of what Giannecchini had asked for -- more than $285 million total -- but is among the highest awarded in cases against J&J over the alleged link between talc and ovarian cancer. Another Missouri state jury awarded a plaintiff $72 million to another woman with the disease.

Shortly after the verdict was read, J&J announced it would mount an appeal.

During closing arguments earlier in the day, Giannecchini's attorney R. Allen Smith Jr. of The Smith Law Firm told jurors that the company callously joked about the possible cancer link and falsified medical records to hide it. He said the massive verdict is necessary to force "the largest corporation in the world" to change its ways, and that the company has rigged regulatory agencies in their favor.

"Make them stop," Smith said. "Stop this madness..."


Tuesday, October 25, 2016

BREAKING: RJ Reynolds Hit With $29M Verdict In Smoking Death Trial - Law360

Doesn't happen often enough.  - gwc

BREAKING: RJ Reynolds Hit With $29M Verdict In Smoking Death Trial - Law360

Law360, Los Angeles (October 25, 2016, 4:18 PM EDT) -- A Florida jury slammed R.J. Reynolds Tobacco Co. with $20 million in punitive damages Tuesday in a trial over the lung disease death of a sailor's chain-smoking wife, adding to an $8.8 million compensatory verdict awarded a day earlier and amounting to far more than the plaintiff requested.

Jurors awarded plaintiff, widower Alan Konzelman, about $10 million more than he had asked for. They gave him $8.8 million in compensatory damages for his own pain in suffering for losing his wife, Elaine Konzelman, when he had asked for $5 million plus nearly $300,000 to cover his late wife's medical expenses. During the punitive damages phase, he asked for $14 million but received $20 million.

During emotional closing arguments last week, Alan Konzelman's attorney Eric Rosen of Kelley/Uustal told jurors that sailor Alan Konzelman lost Elaine Konzelman, his wife of 29 years, to chronic obstructive pulmonary disease.

Rosen said that Alan loved her deeply, spent every spare moment with her and took her on adventures.

"They had an amazing and adventurous life that some people don't get to experience," he said. "They sailed, they got married, they had fun together and they grew old together. And they had a right to grow older together."

Friday, October 21, 2016

Are Detroit’s Most Terrible Schools Unconstitutional? - The New York Times

Are Detroit’s Most Terrible Schools Unconstitutional? - The New York Times

by Geoffrey Stone

At one Detroit school, just 4 percent of third graders scored proficient on Michigan’s English assessment test. At another, 9.5 percent did. Those students are among the plaintiffs in a lawsuit filed last month that asserts that children have a federal constitutional right to the opportunity to learn to read and write.
Illiteracy is the norm at those “slumlike” schools and others in Michigan’s biggest city, according to the plaintiffs. The facilities are decrepit and unsafe. The first thing some teachers do each morning is clean up rodent feces before their students arrive. In some cases, teachers buy the books and school supplies, even the toilet paper.
Lawyers for the students are arguing, in effect, that Michigan is denying their clients the right to a minimally adequate education, an issue that has been raised over the years in courts in other states under their state constitutions.
In Connecticut, a state judge last month ordered sweeping changes to reshape the state’s public schools after concluding that “Connecticut is defaulting on its constitutional duty” to provide all students with an adequate education. The judge concluded that the state’s funding system had “left rich school districts to flourish and poor school districts to flounder.”
Now the litigation in Detroit is raising this issue under the United States Constitution. The Supreme Court has never addressed whether disparities among schools would be constitutionally permissible if, as the court put it in 1973, a state failed “to provide each child with an opportunity to acquire the basic minimal skills necessary” for success in life....

Thursday, October 20, 2016

Trump's incoherent answer on Syria


Wednesday, October 19, 2016

Litigation Funders Planning a New Role: Law Firm Ownership | Law.com

Litigation Funders Planning a New Role: Law Firm Ownership | Law.com

by Roy Strom

Finance has a long history of creative expansion. Financing lawsuits is proving to be no exception.
Since litigation finance hit the scene just a couple decades ago, the business has evolved from investing in single lawsuits to groups of claims to purchasing judgments at bankruptcy auctions, as Chicago-based Gerchen Keller Capital did earlier this year.
Now, some litigation finance firms are preparing for an even bigger change to their business model: Injecting cash directly into law firms in the form of an equity stake that isn’t tied to any specific case. Litigation funders Burford Capital and Woodsford Litigation Funding told Law.com they intend to invest in U.K.-based firms that are allowed to have nonlawyer owners, something that remains against professional ethics in the United States.
“We’re open to that and excited about that,” Burford’s chief investment officer, Jonathan Molot, said regarding investing in firms known in the U.K. as “alternative business structures.”
Not everyone agrees.
There is a segment of the lawsuit finance industry that believes taking ownership in law firms could put litigation funders at odds with the lawyers they seek to work with. Others argue that better-capitalized law firms may cannibalize the need for more traditional funding of individual or groups of lawsuits before the industry matures. And equity investments in law firms would require a change from the “underwriting” method litigation funders currently use to analyze the likely results of potential cases.
“I don’t think you’ll have nonlawyers just handing money to law firm management and saying, ‘We trust you,’ ” said a litigation funding executive who declined to be named.
The discussion comes on the heels of Burford’s announcement this month that it had formed its own law firm under the U.K.’salternative business structures (ABS) law. The firm, Molot said, is limited to a lawyer who will track down funds from litigants who try to dodge judgments that Burford’s investments have helped to win. Burford hired Akin Gump Strauss Hauer & Feld counsel Tom Evans for the role, which it says represents “in-sourcing” an aspect of legal work that neither Burford nor the firms it funds typically specialize in.
Burford does not plan to hire lawyers to conduct its own case work, Molot said. The funder is wary to be seen as competing for legal work that it currently pays large law firms to handle, for fear of upsetting its relationships with those firms. Litigation funders typically rely on law firms to find many of the cases they ultimately invest in.
“That would never be our plan,” Molot said of creating a full-fledged ABS law firm.
For now, these concerns don’t affect law firms in the United States, where the American Bar Association still restricts nonlawyer ownership. The ABA asked for comments on potential rule changes in April, and Burford’s CEO, Christopher Bogart,responded in favor of expanding law firm ownership to nonlawyers. A change is not widely anticipated, and the ABA declined to expand ownership rules the last time it reviewed the subject, in 2011.
But there are plenty of U.S.-based litigation funders that do business in the U.K., and those financiers may see the opening of the country’s financial markets as an opportunity.

Tuesday, October 18, 2016

Monday, October 10, 2016

Health Insurance From Invention to Innovation: A History of the Blue Cross and Blue Shield Companies

Health Insurance From Invention to Innovation: A History of the Blue Cross and Blue Shield Companies: The Blues invented health insurance. And we will continue to reinvent health insurance with the same spirit of innovation that has helped to improve the lives of generations of Americans. Now you can read about it as it happens, here at The Blue Cross and Blue Shield Blog.

NCAA Student-Athlete Concussion Injury Litigation

National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation

Welcome to the NCAA Student-Athlete Concussion Injury Litigation Website

*If you are a medical provider wishing to provide services in the NCAA Medical Monitoring Program, the RFP and Provider Application can be found here.

If you played a National Collegiate Athletic Association (“NCAA”)-sanctioned sport at an NCAA member school, you may be entitled to free medical screening and may receive free medical testing, known as “medical monitoring,” up to two times over the next 50 years.
This website is designed to inform current and former NCAA Student Athletes of a settlement of a class action lawsuit titled In re National Collegiate Athletic Association Student-Athlete Concussion Litigation, Case No. 1:13-cv-09116, brought on behalf of current and former NCAA student-athletes and pending before Judge John Z. Lee of the United States District Court for the Northern District of Illinois.
The Court has granted preliminary approval of the Settlement and has set a final hearing to take place on May 5, 2017 at 10:00 am to determine if the Settlement is fair, reasonable and adequate, and to consider the request by Class Counsel for Attorneys’ Fees and Expenses and Service Awards for the Class Representatives. 
You are a member of the Settlement Class (meaning you would be referred to as a "Settlement Class Member")  if you played an NCAA-sanctioned sport at an NCAA school at any time prior to July 15, 2016.  You do not need to have been diagnosed with a concussion to be a member of the Medical Monitoring Class. 

If you are a Settlement Class Member, your legal rights and options are:
If you think you might want to participate in the Medical Monitoring Program, you should send the Notice Administrator your contact information to be sure you receive further notice. If you do not do so, however, you will still have the right to participate later. The commencement of the Medical Monitoring Period will be announced on the Settlement Website and inquiries regarding the Medical Monitoring Program can be directed to the Notice Administrator by clicking here
Write to the Court about why you do, or do not, like the Settlement. Your comments or objections must be in writing and postmarked no later thanMarch 10, 2017.
Ask to speak in Court about the fairness of the Settlement.  You may not speak unless have asked to do so in writing before March 10, 2017.

If you are a member of the Settlement Class but do not want to be bound by the proposed settlement, you must exclude yourself (“opt-out”) from the Settlement Class. If you exclude yourself, you will get no benefits.  To ask to be excluded, you mail a written request stating that you want to be excluded.  (Click here for further information about your right to exclude yourself from the Settlement Class.)
Participation in the Medical Monitoring Program is completely voluntary. Final approval by the Court of the Settlement simply means that those eligible Settlement Class Members who wish to participate will have the opportunity to do so.  If you do nothing now, you will have the right to participate in the Medical Monitoring Program in the future.

Saturday, October 8, 2016

Is the N.F.L.’s Concussion Settlement Broken? - The New York Times

Dr. Robert Stern, Boston University center

for study of Ttrauumatic bain injury

has hope that ithin a decade CTE will be

diagnosable in living people,not just the dead at autopsy.

The short answer is Yes.  The Supreme Court should take the case and hold that it is impermissible for a settlement to bar those whose causes of action have not yet accrued.  Accrual means sufficient reason to believe  that you have suffered both harm and a wrong that are causally related. - GWC

Is the N.F.L.’s Concussion Settlement Broken? - The New York Times

by Joe Nocera

...If we are, in fact, going to have the ability to diagnose the disease in living football players within the next decade, shouldn’t the N.F.L. and the plaintiffs’ lawyers want to use that diagnostic tool, whatever it turns out to be, to figure out who does and does not have C.T.E.? And wouldn’t they want to compensate football players who could show they had the actual disease that even the league acknowledges is related to head trauma?

Yet there is nothing in the settlement that offers that possibility. Twenty years from now — assuming Stern and others have succeeded in creating an accurate C.T.E. test — players with the diagnosis who exhibit the classic C.T.E. symptoms of anger, suicidal tendencies and so on will still get nothing from the settlement because they’ll have the “wrong” symptoms. Only when they get Alzheimer’s, which has nothing to do with football, will they be eligible for compensation.

I’ve listened to Seeger and others talk about how this was the best deal the players could have gotten, given the state of the science, the possibility of having the case thrown out of court, the lines in the sand the N.F.L. drew and so on. That’s all well and good.  But if you’re going to settle lawsuits that are about a disease called C.T.E., wouldn’t you insist that the settlement have something to do with, well, C.T.E.? This one does not.

Wednesday, October 5, 2016

Talc Cancer Suits Consolidated in District of New Jersey // NJ Law Journal

Talc Cancer Suits Consolidated in District of New Jersey // NJ Law Journal
by Charles Toutant

The U.S. Judicial Panel on Multidistrict Litigation has picked New Jersey as the site to consolidate suits nationwide linking cancer to usage of talcum powder.
The Oct. 4 order transferred 11 pending cases and 43 more potential actions from around the country to U.S. District Judge Freda Wolfson of the District of New Jersey. Wolfson presides over Chakalos v. Johnson & Johnson, which was filed in November 2014, making it the most advanced suit of its kind in the nation. Her experience with that case makes her well-situated to structure the litigation to minimize delay and avoid duplication of discovery and motion practice, the panel said. Furthermore, New Jersey is the best venue for the suits because it is home to Johnson & Johnson, a defendant in the litigation, so that relevant witnesses and evidence are likely located in the state, the panel said.
New Jersey was selected even though most plaintiffs who supported consolidation—those in nine cases—wanted the suits heard in the Southern District of Illinois, where two of the suits were filed. Plaintiffs in 12 cases opposed centralization. Johnson & Johnson and several other defendants proposed consolidation in the District of New Jersey or the Western District of Oklahoma.
The suits seek compensation for personal injuries or wrongful death that resulted from ovarian or uterine cancer in women who applied talcum powder to their genital area and for failure to warn of the risk of cancer. Some of the suits claim researchers have linked talc to cancer since the 1960s. The suits say manufacturers represented talcum powder as safe, failed to warn that it may cause cancer, and marketed the product to women with ads encouraging them to use such products to mask odors.
In addition to Johnson & Johnson, defendants include Sanofi US, Imerys Talc, Valeant Pharmaceuticals and Chattem. The plaintiffs used products such as Johnson & Johnson Baby Powder, Shower to Shower and Gold Bond. Shower to Shower was previously made by Johnson & Johnson but recently sold to Valeant; Gold Bond was made by Chattem, which was acquired by Sanofi in 2010. Imerys mined the talc in the products, plaintiffs claim.

Monday, September 26, 2016

NJ Justices Reject 'Feel of the Case' Doctrine, Overturn 2011 Ruling Reducing Damage Award | New Jersey Law Journal

 In Cuevas v. Wentworth the Supreme Court of New Jersey has overturned its ill-considered ruling in He v. Miller,  207 N.J. 230 (2011) which embraced a vague "feel of the case standard" for judges considering motions to reduce a jury verdict.  The rule, which harked back to Justice Oliver Wendell Holmes view that the jury "aid" the conscience of the court, and that as trial experience grows judges need juries less and less. -gwc

NJ Justices Reject 'Feel of the Case' Doctrine, Overturn 2011 Ruling Reducing Damage Award | New 

by Carmen Natale

In a unanimous ruling, the court repudiated its five-year-old ruling that said judges could rely on their experiences as attorneys in private practice and their years on the bench to determine whether verdicts are unusually or unjustly high and need to be trimmed.
"The pre-eminent role that the jury plays in our justice system call for judicial restraint in exercising the power to reduce a jury's damages award," wrote Justice Barry Albin in Cuevas v. Wentworth Group. "A court should not grant a remittitur except in the unusual case in which the jury's award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience."
The ruling in Cuevas essentially overturns the court's 2011 3-2 ruling in He v. Miller, in which the majority ruled that a judge was permitted to rely on his "feel for the case"—based on his professional experience—to slash a $1 million verdict to $200,000 in a medical malpractice case.
Albin and Chief Justice Stuart Rabner dissented in He. The members of the majority, Justices Helen Hoens and Roberto Rivera-Soto and Appellate Division Judge Dorothea Wefing, temporarily assigned, no longer sit on the court.
"[W]e now conclude that such an approach is not sound in principle or workable in practice," Albin said, referring to the ruling in He,
"A judge's personal knowledge of verdicts from experiences as a private practitioner or jurist is information outside the record and is not subject to the typical scrutiny evidence receives in the adversarial process," he said. "A judge therefore should not rely on personal knowledge of the verdicts."
A trial judge should also not do comparative case analysis in deciding motions for remittitur, Albin said. He said jury verdicts in specific cases differ and are not susceptible to comparison.
In Cuevas, the court upheld a verdict in which two Hispanic brothers were awarded hundreds of thousands of dollars each in damages after alleging that they faced discrimination in the workplace because of their ethnicity, even though they did not present any expert testimony attesting to the severity of their emotional distress.
At their trial, they were the only ones to testify about their emotional distress. Ramon Cuevas told the jury he was "despondent" and "depressed." Jeffrey Cuevas also testified that he was depressed, court documents said.
A Passaic County jury awarded Ramon Cuevas and Jeffrey Cuevas $800,000 and $600,000, respectively. Superior Court Judge Esther Suarez declined to apply her personal experiences as a jurist and attorney and denied a defense motion for a judgment notwithstanding the verdict, saying it "did not shock the judicial conscience."...

Thursday, September 22, 2016

Philip Morris wins in medical monitoirng case in Massachusetts

The New York Court of Appeals in Caronia v. Philp Morris spurned a claim for medical monitoring by long time smokers against Philip Morris.  The Massachuetts case went to trial.  The jury found Marlboro cigarettes are not defective - that there is no alternative safer design that would meet the needs of a "non-addicted" smoker.  The finding shocks me.  Marlboro's were designed to maximize the output of free base nicotine - making them defective.  A California jury found for plaintiff  in Boeken v. Philip Morris on that theory.

Very disappointing to see Philip Morris win one like this.


Donovan et al v. Philip Morris USA, Inc. 06-12234 (Docket Track) - 09/23/2016
Docket Number:1:06-cv-12234 in United States District Court for the District of Massachusetts
Title:Donovan et al v. Philip Morris USA, Inc.
Date Filed:Dec 14, 2006

Docket Entries

Entry #Filing DateDescription
741 Sep 22, 2016 Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with D. 540, 569 and 733, the Court reserved judgment on Plaintiffs' c. 93A claim against Defendant Philip Morris. This claim, as both parties acknowledge, is premised upon the breach of implied warranty of merchantability (i.e., the design defect claim). D. 29 at &para&para 100-110; D. 736 at 2; D. 725-1 at 3 (noting that a breach of warranty claim generally constitutes a violation of c. 93A and cases cited). It was the design defect claim for which a jury, after a contested and well-tried case by both sides, found Philip Morris, not liable. D. 718 (verdict form). Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, 725, 736, 740 (Plaintiffs' reply), the Court renders judgment for Philip Morris on the c. 93A claim and makes the following findings and conclusions.The jury found for Philip Morris on the design defect claim, finding in the first instance that Plaintiffs failed to show that Marlboro cigarettes produced by the Defendant are defective and unreasonably dangerous. D. 718 at 1. The court finds that the Plaintiffs failed to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer) and that the Defendant's failure to adopt a safer, feasible alternative design was unreasonable. The Court adopts the Defendant's proposed findings of fact, D. 736 at &para&para 14-82 in this regard.Having found and concluded that Plaintiffs failed to prove this first, requisite element of the breach of implied warranty of merchantability claim, the Court need not address the remaining elements of that claim. D. 715 at 159-60 (jury charge addressing elements of design defect claim). Since this claim was the basis of the alleged unfair and deceptive act under c. 93A, the Court concludes, by a preponderance of the evidence and based upon the same findings of fact, that Plaintiffs c. 93A claim fails as well.Accordingly, the Court shall enter judgment for Defendant Philip Morris as to the c. 93A claim (Count III). (Hourihan, Lisa) (Entered: 09/22/2016) 
742 Sep 22, 2016 Judge Denise J. Casper: ORDER entered. JUDGMENT (Hourihan, Lisa) (Entered: 09/22/2016) 

Wednesday, September 14, 2016

Boston Scientific Pelvic Mesh Trial Win Overturned - Law360

 Boston Scientific Pelvic Mesh Trial Win Overturned

Law360, Boston (September 13, 2016, 5:28 PM EDT) -- The Massachusetts Appeals Court ruled Tuesday that a new trial must be held for a woman who said Boston Scientific's surgical mesh was defective, because a judge kept critical evidence about what the company knew about the product's dangers out of the trial.

In July 2014, a Massachusetts jury returned a verdict in favor of Boston Scientific Corp. in the first product liability lawsuit involving the company’s pelvic mesh products to go to trial. The jury found BSC's Pinnacle Pelvic Floor Repair Kit was not defectively designed. Plaintiff Diane Albright had said that Pinnacle caused severe pain and other physical side effects. Albright claims neither she nor her physicians were warned before surgery about the Pinnacle kit's allegedly defective design.

The trial judge improperly excluded information about a warning that appeared on the material safety data sheet for the polypropylene that BSC made the device out of, the appeals court said.

“The MSDS caution was relevant, material evidence admissible for the limited purpose of showing that BSC, which had received the MSDS well before 2009, had notice or knowledge of the content of the caution,” it said.

“Exclusion of the MSDS caution substantially affected Albright's rights as, without this key piece of evidence, the jury did not have a complete picture of the information bearing on the safety of the Pinnacle device that BSC either knew of or, in the exercise of reasonable care, should have known about,” it said.

That goes to the heart of BSC's ability to foresee the problem, and “no other evidence before the jury served a similar function,” the panel said.

The caution in question said, "Do not use this [polypropylene] material in medical applications involving permanent implantation in the human body or permanent contact with internal body fluids or tissues.”