The Hogan Verdict

HERE is commentary by Michigan Law Professor Len Niehoff.

Gawker seems to have a good argument that Hogan knew he was being taped, and had no reasonable expectation of privacy. - gwc

The Hogan Verdict

by Nick Denton // Gawker Media

The decision by a Florida jury to grant $140 million in damages for a story on Gawker.com about a Hulk Hogan sex tape was extraordinary. The number is far larger than even the plaintiff himself had asked for in relief. It’s a huge pay-day for an indiscretion that would have been quickly forgotten, one among many in the professional wrestler’s personal life.

The enormous size of the verdict is chilling to Gawker Media and other publishers with a tabloid streak, but it is also a flag to higher courts that this case went wildly off the rails. The plaintiff’s lawyers, with the occasional assist from our witnesses, successfully painted Gawker as representative of an untrammeled internet that good and decent people should find frightening and distasteful. Emotion was permitted to trump the law, and key evidence and witnesses were kept from the jury.

A state appeals court and a federal judge have already held repeatedly that the 2012 commentary and short video excerpt, which joined an existing conversation and explored the public’s fascination with celebrity sex tapes, were newsworthy. We have had our day in trial court, and we lost. We will have our day back in appeals court, and we will be vindicated.

Hogan did not sue us, as he has claimed, to recover damages from the emotional distress he purportedly experienced upon our revelation in 2012 of a sexual encounter with his best friend’s wife, Heather Cole (then Heather Clem). It turns out this case was never about the sex on the tape Gawker received, but about racist language on another, unpublished tape that threatened Hogan’s reputation and career.

Moreover, the basis of his claim that he had a reasonable expectation of privacy during his sexual encounters with Heather Cole, then Bubba’s wife, was that Hogan didn’t know he was being filmed. From the documents released by the appellate court, it is now clear that this is contradicted by multiple statements Bubba made to FBI agents asserting that Hogan knew full well that Bubba had wired his bedroom for video and was filming. We were barred from presenting that crucial evidence to the jury, or asking Bubba how much his most intimate friend knew about the couple’s sexual practices.

Hogan initially blamed his friend for the tape’s release, but later settled his lawsuit against Bubba for the sum of $5,000 and a pledge to play the role that Hogan needed him to in the litigation against Gawker. Bubba complied, asserting his Fifth Amendment rights against self-incrimination to avoid answering our questions about Hogan’s role in the tape’s genesis; the trial court allowed him to keep his end of his settlement bargain and prevented us from putting him on the witness stand.

BP to blame for payment delays, not Deepwater Claims Administrator Juneau | Legal Examiner New Orleans

BP to blame for payment delays, not Deepwater Claims Administrator Juneau | Legal Examiner New Orleans

by Tom Young

Recently, Florida Senator Bill Nelson penned a letter to Deepwater Horizon Claims Administrator Patrick Juneau urging Mr. Juneau to speed up claims analysis. While the resolution of individual and business economic loss claims associated with BP’s disaster has been much too slow, the fault lies squarely at BP’s feet, not Mr. Juneau’s.

BP’s Brilliant Subterfuge


Judge Barbier of lead BP attorney Rick Godfrey (pictured above): “If anyone is trying to rewrite the Settlement Agreement, it is counsel for BP.”

In 2012, with BP’s enthusiastic urging, Claims Administrator Juneau and his staff processed and paid (if eligible) most claims within 60-90 days of filing. The company was all too happy to promote the program’s efficiencies as it sought judicial approval for the compact. Then, once the Settlement was officially blessed by Judge Barbier, BP went about attempting to systematically dismantle it.

Objective number one for the company was to slow down payments by any means possible. This included cooking up largely unfounded allegations of fraud and filing losing lawsuits that BP pressed all the way to the Supreme Court of the United States (which promptly told the company to go pound sand).

BP’s course reversal after Settlement approval was not lost on Judge Barbier:


“[I]f anyone is attempting to rewrite or disregard the unambiguous terms of the Settlement Agreement, it is counsel for BP. Frankly, it is surprising that the same counsel who represented BP during the settlement negotiations, participated in drafting the final Settlement Agreement, and then strenuously advocated for approval of the settlement before this Court, now come to this Court and the Fifth Circuit and contradict everything they have previously done or said on this issue. Such actions are deeply disappointing.” – Judge Barbier, December 24, 2013


Judge Carl Barbier questioned BP’s motives, saying the company’s position was “deeply disappointing.”

I have written before about BP saying one thing while doing the opposite. Unfortunately for the people of the Gulf, such is the company’s modus operandi.

Why the GOP’s Merrick Garland strategy could be a disaster for Republicans - Salon.com

Why the GOP’s Merrick Garland strategy could be a disaster for Republicans - Salon.com

by Andrew Koppelman (Northwestern Law School)


***The united front against Garland could change that. You can imagine one Democratic line of attack: They would declare that the Republican candidate wants to trust Trump to fill a Supreme Court vacancy – and that voters have to decide whether they love Trump as much as their Republican Senator or Senate candidate evidently does.

The attacks would be effective because they would obviously be accurate.

Trump has cited, as precedent for his proposed mass exclusion of Muslims, World War II Japanese-American internment camps, one of the nastiest human rights violations in America’s history. President Trump might be badly inconvenienced by a Supreme Court that took its job seriously. Civil liberties are a bother. Does your Republican Senator agree that it’s okay to put American citizens in concentration camps on the basis of their ancestry? If he doesn’t think that, why is he so keen to give a Supreme Court appointment to a man who does?

How segregation works in NYC schools /vox

http://www.vox.com/2016/2/16/10980856/new-york-city-schools-segregation

J&J hammered on hip implants //Legal Examiner

http://fortworth.legalexaminer.com/medical-devices-implants/jj-hammered-in-texas-over-its-depuy-pinnacle-line-of-metal-hip-implants/

PrawfsBlawg: Judge Garland and the Future of Human Rights Litigation

PrawfsBlawg: Judge Garland and the Future of Human Rights Litigation

by Seth Davis

 It’s hard to deny that Judge Merrick Garland, President Obama’s nominee to the Supreme Court, is “is an amazingly qualified, brilliant judge,” even for commentators who think he’s a “bad choice.” He shouldn’t be blocked by Senate Republicans. He probably will be, though perhaps we’ll see a lame-duck hearing and confirmation vote. For now, there’s much to see --- and like --- in his jurisprudence on the D.C. Circuit.

For instance, I’d say his dissenting opinion in Saleh v. Titan Corp. is one to like. The question in that case was whether Iraqi nationals who were abused at the Abu Ghraib military prison could sue private military contractors for wrongs that both President George W. Bush and President Obama “repeatedly and vociferously condemned.” The panel held they couldn’t, reasoning that “tort law is preempted on the battlefield.” Judge Garland objected that the “country’s legal system [should] take its ordinary course and provide a remedy for those who were wrongfully injured.” Individuals who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors” should have a remedy under a state’s “traditional, generally applicable tort law.”

We shouldn’t lightly assume, in other words, that the United States’ foreign policy preempts an individual’s right to a remedy under state law. To the contrary, Judge Garland suggested, “facially neutral state tort law” may be an important source of remedies for international human rights violations.

If Judge Garland’s dissent in Saleh is any guide, then a Justice Garland might shift the future of human rights litigation in the United States. In recent years the Supreme Court has restricted human rights litigation under the Alien Tort Statute. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court applied the presumption against extraterritoriality to limit claims in federal court under the ATS. State law might, however, step in to fill the remedial gap, as this symposium in the UC Irvine Law Review explored. In the “ordinary course,” as Judge Garland put it, our legal system “provide[s] a remedy for those who were wrongfully injured.” Whether the Court will let our system run its ordinary course in human rights cases is but one of many controversial questions that may be at stake with this 

Johnson & Johnson hit with $498 million verdict in Pinnacle hip implant case

J&J hit with $498 million verdict in Pinnacle  hip implant  case
by Sindu Sindhar
Law360, New York (March 17, 2016, 12:57 PM ET) -- Johnson & Johnson was hit with an eye-popping $497.6 million verdict Thursday in the second bellwether trial in the multidistrict litigation over allegedly defective Pinnacle hip prosthetics manufactured by its DePuy Orthopaedics Inc. unit, a major win for the plaintiffs in the litigation who had this time put forth the consolidated claims of five patients alleging problems from the devices.

After a two-month trial and days of deliberations, a Dallas jury found in favor of all five plaintiffs in the trial, delivering a verdict that included $360 million in punitive damages, lead plaintiffs' attorney Mark Lanier of the Lanier Law Firm confirmed to Law360 Thursday.

The punitive damages are expected to be reduced to $10 million based on the statutory cap in Texas, according to John Beisner of Skadden Arps Slate Meagher & Flom LLP, an attorney for J&J. The plaintiffs had tried to argue that the commercial bribery exception to the Texas statutory punitive damages cap would apply, claiming that one of the surgeons who had treated some of the trial plaintiffs was a "highly paid" consultant for DePuy and J&J and that those payments swayed his decisions to use the devices. The jury on Thursday rejected the commercial bribery allegations.

The jury found for the plaintiffs on their failure-to-warn and design defect claims, holding both J&J and DePuy liable, Lanier said. About $240 million of the punitive damages were assessed directly against J&J while DePuy is on the hook for the other $120 million. The $140 million in compensatory damages will be divided among the plaintiffs based on the extent of their individual injuries, Lanier said. Juries are generally just asked to award damages without factoring in the cap, which the judge usually applies later, after sometimes asking the parties to brief him on the issue.

"The jury was very careful and deliberate in the way they went about working through the evidence, and it took a week to come to the conclusion," Lanier told Law360. "I'm not surprised by the outcome."

The defendants will appeal the verdict, according to DePuy spokeswoman Mindy Tinsley. The products at issue included the Pinnacle Acetabular Cup System, a metal hip implant product with a cobalt-chromium liner that the company brands the "Ultamet" liner.

“We have no greater responsibility than to the patients who use our products, and our goal is to create medical innovations that help people live more active and comfortable lives,” Tinsley said. “DePuy acted appropriately and responsibly in the design and testing of ULTAMET Metal-on-Metal, and the product is backed by a strong record of safety and effectiveness in reducing pain and restoring mobility for patients suffering from chronic hip pain.”

The trial had involved the consolidated claims of plaintiffs Margaret Aoki, Jay Christopher, Donald Greer, Richard Klusmann and Robert Peterson, who all underwent hip arthroplasty, where a hip joint is replaced with a prosthetic. In their case, the prosthetics were DePuy Pinnacle metal-on-metal devices, which they alleged cause serious health problems including inflammation of surrounding tissues, bone erosion and metallosis, a toxic condition allegedly caused when the device’s components grind against each other and shed metal debris into the bloodstream.

Beisner indicated that he believed J&J would prevail on its arguments at appeal to the Fifth Circuit.

"We expect this to be a pyrrhic victory for plaintiffs’ counsel as the grounds for appeal are strong and the punitive damages will be reduced to around $10 million subject to the Texas statutory cap," he said Thursday.

U.S. District Judge Ed Kinkeade, who is presiding over the trial and the MDL, had ruled on Jan. 8 that the five cases had enough issues in common that they would be consolidated for trial. In particular, all five plaintiffs here underwent similar implantation surgeries, their doctors received similar warnings, and the patients all alleged similar injuries, according to his ruling.

Aoki, who had filed her suit in March 2013, was implanted with a DePuy Pinnacle metal-on-metal device in 2010. She contended that after DePuy's other hip implant product, the DePuy ASR Hip System, was recalled in 2010, J&J doubled down on marketing the metal-on-metal device as a replacement.

She claimed that the ASR recall spurred J&J into "damage control" mode, where it assured surgeons that the metal-on-metal device was safe but knew it posed the risk of complications including metallosis. She claimed in particular that more than 1,300 adverse event complaints had been made to the U.S. Food and Drug Administration about the devices — among the roughly 150,000 such devices sold — and that J&J knew that patients implanted with those devices wound up with unsafe levels of cobalt and chromium in their bloodstream.

The first bellwether trial in the MDL ended in a significant verdict for J&J, in which a federal jury in October 2014 unanimously cleared DePuy Orthopedics of similar accusations.

The jury had found in favor of Johnson & Johnson on all counts, rejecting plaintiff Kathy Herlihy-Paoli's claims of negligence, defective design, failure to warn and violations of the Montana Consumer Protection Act after an eight-week trial in Dallas. The product at issue in the trial was the Ultamet metal-on-metal articulation.

The MDL was consolidated in May 2011, when the U.S. Judicial Panel on Multidistrict Litigation centralized three actions and identified 54 potential tag-along actions. There are now more than 8,000 cases in the MDL, all involving Pinnacle devices that contain sockets with metal, ceramic or polyethylene lining, according to court documents.

The plaintiffs are represented by W. Mark Lanier of The Lanier Law Firm, Larry Boyd, Wayne Fisher and Justin Presnal of Fisher Boyd Johnson & Huguenard LLP, Richard J. Arsenault of Neblett Beard & Arsenault and Jayne Conroy of Simmons Hanly Conroy.

Johnson & Johnson and DePuy are represented by Michael V. Powell and Seth M. Roberts of Locke Lord LLP and John H. Beisner, Stephen J. Harburg, Jessica Davidson Miller and Geoffrey M. Wyatt of Skadden Arps Slate Meagher & Flom LLP.

The five cases consolidated for trial are Aoki v. Johnson & Johnson Services et al., case number 3:13-cv-01071; Christopher et al v. Johnson & Johnson Services Inc. et al., case number 3:14-cv-01994; Greer v. DePuy Orthopaedics Inc. et al., case number 3:12-cv-1672; Klusmann et al v. DePuy Orthopaedics Inc. et al., case number 3:11-cv-02800; and Peterson et al v. Johnson & Johnson Services Inc. et al, case number 3:11-cv-01941, all in the U.S. District Court for the Northern District of Texas.

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.

GM Ignition Engineers Gagged By Orwellian Rules, Jury Told - Law360

GM Ignition Engineers Gagged By Orwellian Rules, Jury Told - Law360

Law360, New York (March 15, 2016, 11:20 PM ET) -- As GM refrained from urgently investigating reports of failing ignition switches, engineers deep within the organization were effectively prevented from sounding alarms by a policy that forbade terms like “problem,” “bad” and “rolling sarcophagus,” a former automotive industry engineer testified in a bellwether trial Tuesday.

(Credit: AP)

The company is engaged in a three-week trial over the claims of Louisiana driver Dionne Spain and passenger Lawrence Barthelemy, whose Saturn roadster spun out on an icy bridge two years ago. They walked away with few injuries. But the plaintiffs blame the now-infamous ignition switch, whose hair trigger could shut down the car while it was moving, even at high speeds. General Motors LLCclaims the switch wasn’t involved in Spain and Barthelemy's crash.

Slides shown in court Tuesday laid out a list of terms engineers were directed to avoid. They included “safety,” “big time,” “good,” “defect,” “ghastly,” “Challenger,” “powder keg,” “deathtrap,” “widow-maker” and “Cobain.”

“This practice of limiting how engineers can describe situations was one of the factors that allowed this situation to stay down and not get the attention that it needed for such a long time,” former Delphi engineer Steve Loudon told the court. Loudon spent his career in automotive electronics, writing software that controls airbags, among other things. He’s now a frequent expert witness in car-defect cases.

“You’re limiting [engineers] from being as precise and accurate as they could be,” Loudon said.

But in a deposition played soon after, a GM employee offered a defense of the policy. “‘Problem’ is judgmental: You’ve already decided that there was a problem,” engineer Eric Buddrius said on video.

Meanwhile on Tuesday, on a different floor of the same building, a Second Circuit panelappeared troubled by the landmark bankruptcy ruling that largely shielded the post-Chapter 11 version of General Motors from liability tied to the deadly ignition-switch defects, with one appellate judge wondering how the decision could have been made in the bankruptcy context at all.

2nd Circ. Has Doubts About New GM's Ch. 11 Liability Shield - Law360

2nd Circ. Has Doubts About New GM's Ch. 11 Liability Shield - Law360

2nd Circ. Has Doubts About New GM's Ch. 11 Liability Shield - Law360

Law360, New York (March 15, 2016, 3:39 PM ET) -- A Second Circuit panel appeared troubled Tuesday by a landmark bankruptcy ruling that largely shields the post-Chapter 11 version of General Motors from liability tied to deadly ignition-switch defects, with one appellate judge wondering how the decision could have been made in the bankruptcy context at all.

(Credit: AP)

At a closely watched appeal in which various claimant groups are seeking leave to target General Motors LLC, or New GM, Circuit Judges Chester J. Straub, Denny Chin and Susan L. Carney all expressed displeasure at U.S. Bankruptcy Judge Robert Gerber's April 2015 decision to wall off the $47 billion auto giant.

That decision came just months before a $900 million settlement between Old GM and criminal prosecutors.

Front-and-center in Tuesday's arguments was a stipulation between Chapter 11 GM and plaintiffs in which, according to Judge Gerber's opinion, "at least 24 Old GM personnel (all of whom were transferred to New GM), including engineers, senior managers and attorneys, were informed or otherwise aware of the ignition switch defect" before a 2009 sale agreement rescued the automaker.

“Old GM knew,” Judge Straub told the automaker's counsel Arthur Jay Steinberg of King & Spalding LLP. “The very same people who knew went to New GM. No one told the court. No one told the claimants. How are we to deal with that?”

Senior NFL official acknowledges football's link to brain disease CTE | Sport | The Guardian

Senior NFL official acknowledges football's link to brain disease CTE | Sport | The Guardian

An NFL official has acknowledged a link between football and a degenerative brain disease for the first time.

Jeff Miller, the NFL’s senior vice president for health and safety, spoke about the connection during an appearance Monday at a congressional committee’s round table discussion about concussions.

Peyton Manning retires – and ends the world's most exhausting hagiography

 

Read more

Representative Jan Schakowsky (D-Illinois) asked Miller: “Do you think there is a link between football and degenerative brain disorders like CTE?”

Miller, who was referring to chronic traumatic encephalopathy (CTE), began by discussing the work of Boston University neuropathologist Dr Ann McKee, who has found CTE in the brains of 90 out of 94 former pro football players.

“Well, certainly, Dr McKee’s research shows that a number of retired NFL players were diagnosed with CTE, so the answer to that question is certainly ‘yes,’ but there are also a number of questions that come with that,” Miller said.

Advertisement

Schakowsky repeated the question: “Is there a link?”

“Yes. Sure,” Miller responded.

The NFL has not previously linked playing football to CTE, a disease linked to repeated brain trauma and associated with symptoms such as memory loss, depression and progressive dementia. It can only be detected after death. Among the players found to have CTE in their brains were Hall of Famers Junior Seau and Ken Stabler.

During Super Bowl week, Dr Mitch Berger, a member of the NFL’s head, neck and spine committee, would not draw a direct line from football to CTE.