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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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.

'via Blog this'

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

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.

'via Blog this'

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 

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'

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.