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Ethicon Asks MDL Court To Presume Women Lie About Their Health

Transvaginal mesh is one of the great health debacles of our time, causing more damage across more families than any other medical device in recent memory. I know it from my own files: the mesh implants ruin women’s health, often sending them down a spiral of revision surgeries and infections and debilitating pain that they never really escape.

 

Last April, the FDA finally started taking action to address the problem by proposing that surgical mesh for transvaginal pelvic organ prolapse be reclassified from a “moderate-risk device (class II)” to a “high-risk device (class III),” which would require manufacturers to submit a premarket approval application to the FDA before selling the meshes. (Way back in 2011, I noted that the “class II” status played a central role in allowing the transvaginal mesh debacle to occur.) If we’re lucky, within the next year they will be off the market or limited to use in women who can’t use safer treatment options.

 

The transvaginal mesh litigation, in turn, continues to grow, so that now the federal multi-district litigation in West Virginia now has more than 65,000 open cases. The jury trials of these cases have not gone well for the manufacturers: even their hand-picked “bellwether” cases have typically resulted in large verdicts for plaintiffs. Some of the mesh manufacturers have come to their senses and have started limited settlement processes with groups of firms. None of the manufacturers have utilized the same global claims process that worked well in Vioxx and the DePuy ASR litigation, but it’s progress, at least.

 

And then there’s Ethicon, a division of Johnson & Johnson. They seem content with a “gates of hell” approach, refusing to even consider settlement until they have exhausted every last legal process available to them.

 

The latest ploy by Ethicon starts with this argument: “Women across the nation are receiving unsolicited phone calls from strangers who are seeking — or, more disturbingly, already know — their very personal medical information. These individuals, who are on some occasions may call as often as 50 times a month, try to entice each woman into filing a lawsuit, oftentimes disregarding whether she has an injury or even had a mesh implant at all.” Motion, p. 3. I wouldn’t be surprised if that’s happening. If it is, it is unethical, illegal, and should be prosecuted to the full extent of the law. Johnson & Johnson should take on these companies and start suing the bejesus out of them.

 

Importantly, though, several pages later in the motion, Ethicon admits: “Johnson & Johnson and Ethicon do not suggest that any specific plaintiffs’ counsel involved in this MDL is knowingly participating in this scheme. In fact, it appears that the callers on occasion may be coaching women about what to say to lawyers.” Motion, p. 9. Indeed. To those of us who work on behalf of plaintiffs, these companies are scoundrels. If Johnson & Johnson would devote even one-hundredth of the energy towards those companies’ destruction as it puts into denying injured women compensation, the calls would disappear.

 

But that’s not what Johnson & Johnson and Ethicon have in mind. I suspect that they like these companies for the cover these companies give them to do what they really want: put more burdens on women with meritorious claims. Their motion doesn’t even ask for any remedies actually related to the telemarketing. Instead, they ask for “mechanisms to cull the docket.” Motion, p. 15. In other words, Johnson & Johnson and Ethicon are accusing all 20,000+ plaintiffs in the Ethicon MDL of being outright liars who should be held to a far higher burden of proof at the very beginning of their case than any other plaintiff is held, as if women in general can’t be trusted to give information about their own bodies.

 

Long ago, the MDL court ordered that transvaginal mesh plaintiffs start their case with detailed evidence about their mesh and their injuries. As I recounted last year, when discussing how the TVM cases could be brought to resolution by remanding them and moving them swiftly towards trial:

 

the MDL’s pretrial orders require every plaintiff to swiftly serve on the defendants information from their medical records specifically identifying the implanted product in question. Then, within two months after filing and serving the complaint, the plaintiff also has to serve a detailed plaintiff profile form (as an example, here’s the Ethicon form) that identifies, among other issues, all the symptoms they’ve had, and whether or not they had the mesh revised or removed — and, if so, they have to identify the doctor and the hospital involved. They also have to identify their primary care physicians, OB-GYNs, urologists, psychiatrists(!), psychologists(!), endocrinologists, and rheumatologists, and then sign authorizations allowing the defendants to obtain their medical records.

 

Johnson & Johnson and Ethicon, however, now say that’s not good enough. They ask the Court to order all plaintiffs to also get “all physician office notes addressing the indications for the implant, going back at least 1 year prior to the surgery, and physician notes one year following the implant, as well as all medical records reflecting any complaint to a physician of the injuries allegedly caused by the device, including but not limited to records evidencing excision, revision or explant of the mesh product …” Motion, p. 17.

 

Johnson & Johnson and Ethicon could, of course, already get all of that themselves, but they’d rather force the plaintiffs to spend the money and time to get those same medical records, and they’d prefer to have some leverage to use to kick the plaintiff’s case out if they miss a record or if a doctor disposed of the records.

 

It gets worse from there: Johnson & Johnson and Ethicon also demand plaintiff’s counsel provide all “intake questionnaires” under the guise that these “could help identify the offenders at these call centers.” Motion, p. 19.

 

That’s baloney. Johnson & Johnson and Ethicon want my privileged work product because they want to scour it for any arguable inconsistency with my client’s later testimony — who knows, maybe someone somewhere wrote a day wrong — and then pummel my client with it later. Frankly, I’ll gladly turn over my intake notes, if Johnson & Johnson and Ethicon’s lawyers are required to turn over their notes from their interviews with their clients. Somehow, I don’t think they would agree to that.

 

All in all, it’s just another example of a well-heeled defendant using the court system for a war of attrition against the very people it hurt with its products. The time has come to move these cases along, with joint trials and remands. These plaintiffs’ day in court shouldn’t be delayed by a myth about their ability to tell the truth about their bodies.

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Does The President Really Think U.S. Attorney Carmen Ortiz Is Doing A Good Job?

Next week is the second anniversary of the death of Aaron Swartz, who committed suicide amid an unjustifiable prosecution led by U.S. Attorney Carmen Ortiz, a prosecution that at best was based on a complete misunderstanding of how computers work. Two years ago, a petition on the White House’s “We The People” site made a straightforward request: “Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.”

 

U.S. Attorneys are appointed by the President and confirmed by the Senate. U.S. Attorneys, however, are removed at the sole discretion of the President. As the Federal Judicial Center says, “In 1820 Congress prescribed a term of four years for the attorneys, although it provided for their removal at the pleasure of the President.” The current statute is 28 U.S. § 541(c), which says only: “Each United States attorney is subject to removal by the President.”

 

That is, the President is the one and only person in the world who can remove a United States attorney, and he does so at his sole discretion. The buck stops with him.

 

Yesterday, the White House finally responded to the “We The People” petition calling for Ortiz’s removal from office in a manner that would be laughable if it wasn’t so insulting and troubling:

 

As to the specific personnel-related requests raised in your petitions, our response must be limited. Consistent with the terms we laid out when we began We the People, we will not address agency personnel matters in a petition response, because we do not believe this is the appropriate forum in which to do so.

 

(Link in original.) The legal term for the White House’s response is “bullshit.”

 

The removal of a U.S. Attorney is not a “personnel-related request.” No one is asking the President to reach into the federal bureaucracy and start meddling with civil servants. The selection and oversight of U.S. Attorneys has been for centuries one of the most important jobs of the President. Those U.S. Attorneys have “more control over life, liberty, and reputation than any other person in America.” The President is the only person with any power over them, because the President alone decides if they can remain in office. The appointment of U.S. Attorneys is no more a “personnel-related” issue than the appointment of a Cabinet Secretary is a “personnel-related” issue: the “person” chosen to fulfill that role is part and parcel of the President’s policy.

 

The insulting reference to the “terms” of We the People makes the problem even worse. No one seriously believes some silly website rules could trump the President’s obligation to be honest with the public about the way his appointees perform their jobs. Yet, even that hollow defense fails: those terms say nothing at all about “personnel” matters being irrelevant — but the terms do say “the limited purpose of the We the People platform” is “to allow individuals to petition the Administration to take action on a range of issues — to address a problem, support or oppose a proposal, or otherwise change or continue federal government policy or actions.”

 

Ortiz’s continued appointment isn’t even like a “federal government policy or action,” the bulk of which involve Congressional statutes and agency rulemaking procedures over which the President has either no control or limited control. It’s a matter of the President’s sole discretion. He could fire her tomorrow for any reason or no reason at all — but he feels the people’s complaints do not even warrant a genuine response, much less action.

 

The White House’s non-answer to the petition suggests that not one person in the White House was able to justify her continued appointment. Not exactly a ringing endorsement, is it?

 

Unsurprisingly, Ortiz’s poor performance has continued, as right now she’s throwing considerable prosecutorial resources towards the trial of Dzhokhar Tsarnaev, who apparently offered to plead guilty in exchange for life-without-parole, which is what happened with Sept. 11 conspirator Zacarias Moussaoui, shoe-bomber Richard Reid and Unabomber Ted Kaczynski. While the content of the negotiations is confidential, it has been reported that Ortiz was overseeing it and there is no question that it was a failure. There was no good reason to turn down that offer, which would have provided closure (giving all of us a reprieve from seeing Ortiz’s name in the press) and would have ended the case.

 

At what point will the President explain to us why we shouldn’t just assume Ortiz is looking more for the spotlight than for justice? Or should we just assume that the President is perfectly comfortable with Ortiz’s actions in office?

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Tort Reform Kills (General Motors Defective Ignition Edition)

As the New York Times described yesterday, Natasha Weigel and Amy Rademaker, both teenagers, died needlessly in 2006 because General Motors sold a defective car that suddenly lost power, causing them to crash and also causing their airbags to fail. A police investigation found that “[t]he car’s ignition switch had powered off seconds before the accident, and G.M. had received reports of similar incidents, pointing to a possible defect.” G.M. had already settled other cases involving deaths, including of another teenager, arising from the non-deployment of the frontal airbags in a 2005-2007 Cobalt.

 

The Weigel and Rademaker families both went to experienced product liability lawyers who had pursued car defect cases before, and they were both told: you don’t have a case.

 

Why not? Because both girls were from Wisconsin, and the Wisconsin legislature thought it was more important to pad insurance company profits than it was to give manufacturers an incentive to ensure their products are safe. As one of those lawyers wrote the family, “Because of the $350,000 maximum recovery for loss of society in Wisconsin and the extreme expense of litigating the case against General Motors, our office is unwilling to become involved in this matter.” As the firm told the Weigel family’s personal attorney, they needed to “see a potential upside recovery well in excess of $1 million” because the costs of pursuing a G.M. case through trial averaged $300,000 and could exceed $400,000.

 

The deadly cars with the defective ignition switches stayed on the road, killing at least 42 people. (There are probably more; that’s how many have been uncovered so far.) Eventually, as the New York Times says, “the defect’s public disclosure — and the recall of 2.2 million G.M. vehicles in the United States — was set in motion by a lawsuit filed in Georgia, a state that does not place strict caps on damages in product liability lawsuits.”

 

Tort reform kills.

 

I have handled claims against car manufacturers before (they’re typically “crashworthiness” cases). The numbers given are accurate: lawyers are lucky if they can get a crashworthiness case through trial for less than $250,000, and there’s a good chance they’ll end up paying double that. The cases require an enormous amount of time and out-of-pocket costs given the limited number of qualified experts and the extensive testing they have to conduct to evaluate and prove the case.

 

Just as bad, the car manufacturers (and the tire manufacturers, the baby seat manufacturers, the airbag manufacturers, etc) fight these claims with a war of attrition, and sometimes with outright lying to the court that can only be uncovered years later. Sometimes it’s never uncovered at all. In one of my cases, the car manufacturer said it destroyed all of its own testing data on one of its most popular models, and so couldn’t give it to us in discovery. Do you believe that? I didn’t. I still don’t.

 

The cases are also fraught with legal peril. Just last week, the Pennsylvania Superior Court decided a case in which the roof of a 2001 Ford Excursion caved in on the family inside, severely injuring two of the daughters, leaving one a quadriplegic. At trial, the court allowed Ford to argue that the daughter’s spinal cord really broke when she fell out of her seat and hit the roof, and not when the roof caved in on her, but precluded the plaintiffs from presenting evidence from the National Highway Traffic Safety Administration, the Insurance Institute for Highway Safety, the National Center for Statistics and Analysis, Fatality Analysis Reporting System, and the National Automotive Sampling System showing that Ford’s theory was pure junk science, and that the real cause of their daughter’s injury was the roof crush.

 

The jury found for Ford.

 

The Superior Court affirmed.

 

The plaintiffs get nothing, and their lawyer likely spent more than 2,000 hours on the case and more than $400,000 dollars out of pocket.

 

Little wonder lawyers are hesitant to take product liability cases against car manufacturers.

 

Bad as this sounds for people who ever ride in cars (i.e., you, me, and everyone else) the point here is much broader than just car manufacturers, and much broader than just product liability cases. This is the situation in medical malpractice — as I’ve been saying on this blog for years, and as ProPublica detailed back in January — and in most other areas of litigation.

 

I review a lot of cases, and far too often I have no choice but to tell a potential client with a valid claim that I can’t help them. Maybe the law is unsettled or just plain bad. Maybe I think the jury pool is so tainted by propaganda that they’ll think a malpractice award will cause their health care to get worse. (It won’t — it’ll cause it to get better.) Or maybe the damages provided by law simply aren’t enough to make up for the extreme cost and risk of the case.

 

The deaths of Natasha Weigel and Amy Rademaker were needless and couldn’t even be used to make other people safer. It doesn’t have to be this way. But thanks to “tort reform,” it is.

 

 

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Sony And David Boies Owe Val Broeksmit And The Internet An Apology

[Updated January 2, 2015, regarding the DMCA issues. See below.]

I used to be a fan of David Boies back when he was defending Napster, and I recall liking the guest lecture he gave at Temple Law, though I don’t remember what it was about. These days, though, like an unnecessary movie sequel, it seems he’s given up his integrity for a paycheck.

 

As part of the Sony hack, a huge slew of potentially embarrassing information has come to light, including a whole bunch of internal emails about, for example, why David Fincher had to direct the Steve Jobs biopic, and how casting African-Americans is inconsistent with Sony’s “fiduciary obligations to their shareholders.”

 

This isn’t just gossip. These are matters of public interest. See, e.g., Synder v. Phelps (2011)(“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Citations and quotations omitted.)

 

Sony is a major corporate conglomerate that spends millions every year lobbying Congress. (Here, for example, is just one disclosure from earlier this year in which Sony Pictures Entertainment is lobbying for preferential tax treatment and for “support of strong IP chapter in trade pacts.”) Moreover, though the term “entertainment” is thrown around as if movies were just any other business, the truth is that movies — like all forms of art — are a key part of our culture. (Yes, at that link is a picture of Lawrence Lessig standing with a very young Aaron Swartz.) At the very core of human culture is the act of storytelling; a free society has the right to discuss how its stories are told and who tells them.

 

Val Broeksmit is a musician who tweets at @bikinirobotarmy, and he’s been combing through the hacked Sony emails — which are now out in the public for anyone to see — and posting some of what he finds, like the above two examples.

 

He has the right to do that. We have a right to see those emails. They’re “confidential,” I suppose, in the sense that Sony would rather we not see them, but so what? American law really doesn’t care about damage to a corporation’s reputation, not enough to chill free speech rights. See, e.g., Doe v. Public Citizen (4th Cir., April 16, 2014); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (“commercial self interest” does not to qualify as a legitimate ground for keeping documents under seal). The public doesn’t have the right to hack into Sony’s emails, but, once they’re out there, they’re out there. This is part of living in a democratic society.

 

That’s where David Boies comes in. Sony has hired him to, well, I don’t know what. Put on a show? It seems all he’s been doing so far is sending silly letters to newspapers vaguely demanding that they not reference the Sony emails, letters which they have rightly ignored. Yesterday, he sent one of those silly letters to Twitter, asking them to remove the emails posted by Broeksmit.

 

It’s mostly a bunch of blather with a mere paragraph devoted to the discussion of actual laws:

 

The possession, use, and publishing of the Stolen Information implicates numerous federal and California state laws, including, but not limited to, the Computer Fraud & Abuse Act (18 U.S.C. § 1030), the Copyright Act (17 U.S.C. § 501, et seq.), the California Comprehensive Computer Data Access & Fraud Act (Cal. Penal Code § 502), California’s Stolen Property Law (Cal. Penal Code § 496), the Uniform Trade Secrets Act (Cal. Civ. Code § 3426, et seq.), and the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.), among others, especially when such actions are taken knowingly in furtherance of federal and state crimes committed by the perpetrators, including extortion.

 

You know a lawyer is talking rubbish when in a single sentence they reference six different acts prefaced by “including, but not limited to” and followed by “among others,” to make sure you know they’re still working hard to find other statutes to vaguely reference. California has a law that says frogs used in frog-jumping contests can’t be eaten, why not reference it, too? After all, it’s not like you need to explain why it applies — just cite it and move on to the rest of the threat.

 

It’s embarrassing: they have 240 lawyers over at Boies, Schiller & Flexner, and the whole lot of them couldn’t come up with a cogent sentence explaining why any of those laws would apply to Twitter or Broeksmit. Sitting here, I can’t see it — for example, the first law he cites, the CFAA, applies to unlawfully accessing computers, which Broeksmit plainly didn’t do, unless he actually hacked Sony himself — and I’m not going to do Mr. Boies job for him. Frankly, I’m wondering if he didn’t veer a bit close to extortion by throwing around the potential for criminal liability. As PopeHat notes, that’s unethical under the California Rules of Professional Conduct.

 

Like Broeksmit told the Wall Street Journal, “If this can happen to me, it can happen to anybody.” Indeed, and that’s why Sony needs to immediately apologize to him and to the Internet as a whole or explain why it thinks Broeksmit has broken the law. If Sony and Boies really think they can sue everyone who ever talks about Sony’s emails, we have a right to know that, too.

 

Update, January 2, 2015: Via @jaredmauch, I see Twitter removed just two tweets as a result of the threat, both of which included portions of the script to the next Bond movie. That is understandable: those scripts are copyrighted and registered, and thus subject to a DMCA Takedown Notice. The rest of the materials have not been registered with the copyright office, and thus Sony cannot file a copyright infringement claim over them. See Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237 (2010)(copyright registration requirement of 17 U.S.C. § 411(a) “is a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction.”) If Sony wants to file a copyright infringement claim over those emails, it needs to first register them with the Copyright Office — which will further weaken any putative claims they have to “trade secrets,” and which will also strengthen Broeksmit’s First Amendment defenses. 

 

Thus, we’re all still waiting for Sony and Boies to come up with a viable legal theory against Broeksmit. I’d prefer they come to their senses and apologize.

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“We Do Not Dispense Justice Via The Phone”

Last week, while I was waiting for a court conference back in “antechambers” (that is, the part of the judge’s office that isn’t the judge’s actual “chambers”), I spotted this sign, strategically placed so that every lawyer who came through would see it:

we do not dispense justice via the phone

They gave me permission to take a picture (always ask first — courts get sensitive about that), so long as I didn’t say where I took it. The judge’s clerk put it up one day after a string of calls from lawyers all trying to get the clerk to tell them how the judge would likely rule on an issue. In my 3L clerkship clinical, I lost track of the number of times lawyers tried to extract from me information about what a judge was thinking over the phone. I was sorely tempted to tell them all, “the judge is very upset with you, but I can’t say more,” then hang up, leaving them bewildered and terrified.

 

After the court conference where I took the picture, I went to a lawyer cocktail party–one of many this season–and chatted with judges and clerks. One clerk who was just finishing their second year said they could easily tell, when reviewing briefs, which lawyers had clerked and which lawyers had not. The lawyers who clerked were more likely to get to the point, citing only relevant cases (with appropriate parentheticals) and key parts in the record. The lawyers who never clerked rambled at length, citing either nothing at all or way too much, while trying to obscure or ignore difficult issues.

 

As I wrote not too long ago, an ounce of empathy for the reader is worth a pound of grammar and vocabulary. It’s easy for litigators to lose sight of how cases are actually decided, because we spend so much time being adversaries with no disinterested parties around to restore a sense of perspective. Every letter, every call, and every deposition feels like a pistol duel in the middle of the desert.

 

But litigation isn’t a duel, and it isn’t like a football game or a boxing match, you don’t really unambiguously win by scoring more touchdowns or knocking out your opponent. You don’t even really “win.” Rather, someone who has sworn an oath to be impartial is suppose to dispense justice from the bench or the jury box by independently coming to a conclusion about your client’s case. Spend your energy helping them do that, instead of trying to defeat the other side, with clear, concise writing and argument.

 

* * *

 

The ABA Journal was kind enough to include me again on their Blawg 100. If you like what you read here, I’d be obliged if you’d click over and vote for Litigation and Trial in the “Tort/Consumer” category (voting closes December 19th). I’m going to lose again to Abnormal Use, run by Jim Dedman, and that’s quite all right. He’s one of the nicest folks I’ve met, and one of the few bloggers with the brains and the guts to invite guest posts from bloggers with whom he disagrees, like yours truly.

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Tincher v. Omega Flex: Five Key Points From Pennsylvania’s New Standard For Strict Liability

 

It’s finally here: Tincher v. Omega Flex, the Pennsylvania Supreme Court’s overhaul of strict liability. If you’re unfamiliar with the recent turbulence surrounding strict liability, check out this post of mine from July 2012, which will take you all the way from Webb v. Zern, 220 A.2d 853, 854 (1966) to Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Tincher is a foundational opinion, one that resets the landscape of strict liability and puts it on a more secure and coherent framework for the future.

 

The 137-page majority opinion written by Chief Justice Castille may become his magnum opus. It rises swiftly into the high politics of separation of powers (pp. 29–37), unearths the half-century-old foundations of strict liability in Pennsylvania (pp. 37–57), reviews the entirety of the precedent (pp. 57–74), explains the practical problems of the doctrine as used today (pp. 74–84), outlines the conceptual framework for strict liability (pp. 84–107), and charts the path forward (pp. 107–137).

 

It even quotes David Hume (p. 38) and includes a sly reference to Einstein’s dual theories of relativity (p. 110, criticizing the Third Restatement as having “general and special rules” for different types of products, rules that together fail to “state a general principle of liability consistent with the public policy that compensation is available for an injury caused by any type of defective product”).

 

The opinion is also unanimous, given that the whole court joined it, although Justice Saylor wrote and Justice Eakin joined a two-page “concurring and dissenting” opinion. Justice Saylor says that, if “left to [his] own devices,” he would adopt the product liability segment of the Third Restatement of Torts — an approach the majority opinion he joined eviscerated (pp. 33-37, 107-117), concluding it was “unmoored from guidance upon the broader legal issue,” making it at best “a superficially enticing option” that “risk[s] elevating the lull of simplicity to doctrine.” Slip op. at 116 (quoting Scampone). Frankly, I don’t see the incongruous ‘concurring and dissenting’ opinion having much impact going forward.

 

The majority opinion admits that it is part of an “incremental approach,” and that much lies ahead in “the development of strict liability law in Pennsylvania.” Slip op., p. 116. So let’s roll up our sleeves and figure out how to best apply the case going forward.

 

Predictably, the defense bar, the big corporate manufacturers, and the insurance companies have started claiming that Tincher actually adopted the Third Restatement by stealth, that this stunning reaffirmation of the purpose of strict liability and of the role of the jury as ultimate fact-finder is somehow favorable for them. See, e.g., Ballard Spahr, Morgan Lewis, and, of course, Drug and Device Law. We’ll come back to them.

 

Here are the five key points I’ve drawn from the opinion: Continue reading

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Mediation Of A Big Injury Case: A Game Worth Playing?

A few months ago, in a wrongful death case I have against one of the biggest companies in America, the company’s lawyer asked: will you agree to a mediation?

 

Our firm founder, Jim Beasley, Sr., had a simple method to mediation: he told the representative to call and figure out what their highest number was. Then he told them if it was settled or not and left the mediation.

 

I haven’t tried that one yet, but maybe I should.

 

I’m not a fan of mediation. Mediation is useful where the parties have some shared interest in mutually resolving their dispute but disagree on the terms of the deal, like with, say, unions and employers. The workers want to work and the company wants to keep on running. As the jargon of negotiation theory puts it, for both of them, their ‘best alternative to a negotiated agreement’ (“BATNA”) would likely leave them both worse off than reaching almost any deal. In the jargon of game theory, their negotiation is a “non zero-sum game.” If they reach an agreement, they both do better than if they didn’t.

 

But that’s not the situation in catastrophic injury litigation. My client’s “best alternative” to settlement is a jury verdict that holds the defendant accountable for the full extent of my client’s injuries. The defendant / insurer’s “best alternative” is a jury verdict absolving them of responsibility. My client and the defendant don’t have any shared interests. Rather, they each have the similar interest in ending the litigation and avoiding the risk of losing, but it isn’t a “shared” interest. Civil litigation is a “zero-sum game.”

 

Thus, when it comes to serious injury lawsuits against a single defendant — where the only issue is the amount the defendant is willing to pay to settle the case — it’s hard to articulate what, exactly, the mediator can accomplish. Assuming the clients and lawyers aren’t irrational, there’s little for a mediator to work with, there’s just a number on one side and a number on the other. I don’t need a mediator for that. I know the numbers I’ve recommended to my client. I know what my client has told me. If a defendant actually wants to settle something, they know how to find me to convey an offer to my client.

Continue reading

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Comcast, Kozinski, and The Decline Of Class Actions

Nearly a year ago, I praised an objection Judge Alex Kozinski filed — as a consumer, not a judge — to a proposed class action settlement that he was a part of, and so I was dismayed to see a recent article noting Judge Kozinski’s complaint that “There’s a tendency for lawyers to buy themselves off” in class actions.

 

He’s missing the forest for the trees: whatever the problems of class actions, the “tendency” we need to worry about isn’t that plaintiffs’ lawyers might be able to settle these cases too soon, but that the cases aren’t filed at all because they’re too hard to win, even in the face of blatantly illegal conduct.

 

If you’re from the Philadelphia area, you know that the tallest building in the City is the Comcast Center, begun in 2005 and completed in 2008 at a cost of $540 million. What you may not know is that Comcast’s customers paid for the whole thing (and more) by way of a glaring antitrust violation.

 

Between 1998 and 2002, Comcast’s share of the “Philadelphia designated marketing area” — i.e., the surrounding counties of Pennsylvania, New Jersey, and Delaware* — grew from 23.9 percent to a whopping 77.8 percent. (See this brief, page 2.) In four years, Comcast went from controlling less than a quarter of the market to controlling over three-quarters of it. By 2007, Comcast still held 69.5 percent of the market.

 

Comcast wasn’t competing on price, and it didn’t grow that way by dramatically improving its services (I can tell you that from my personal experience!). Instead, it was buying entire cable companies within the Philadelphia area and swapping customers with other cable systems, like Time Warner. As a statistician and econometrician later established by comparing prices in the Philadelphia area to prices in comparable areas, Comcast’s anticompetitive behavior cost Philadelphia consumers a whopping $875,576,662 in inflated prices.

 

In December 2003, five customers and eight law firms filed an antitrust complaint against Comcast. The antitrust damages for any one customer aren’t much — probably under $1,000 for most — so the case was filed as a class action on behalf of all the customers in the area. Thus, before the case could reach the issue of whether or not Comcast actually violated antitrust laws, the case has to decide whether and how customers could bring their case as a class action.

 

Comcast unsurprisingly fought a war of attrition, so that the District Court didn’t get to class certification until May 3, 2007. Thereafter, the Third Circuit decided In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), prompting the District Court to go back around to re-certify the class again on January 7, 2010. Then the case was appealed, and the Third Circuit upheld the class certification on August 23, 2011 in Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011). The Supreme Court granted certiorari, and issued its opinion on March 27, 2013.

 

That is, it took almost ten years to sort out whether 2 million current and former Comcast subscribers apparently bilked out of nearly a billion dollars could bring their claims as a class action. It reminds me of a case I argued earlier this year in front of the Third Circuit involving investors defrauded by a gigantic bank. The bank’s lawyer was trying to explain to the panel of judges why the bank had waited nearly two years after litigation was filed to bother arguing that it felt my client’s case had been filed in the wrong court, and in the course of that argument he claimed there was a difference between “calendar time” and “litigation time.” In “litigation time,” he argued, a big company could let issues sit unresolved for months, even years, without consequence. (Thankfully, I won, and the Third Circuit held the bank had engaged in an “unsavory tactical maneuver” by waiting so long.)  Continue reading

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Studies Again Show Dangerous Doctors Bigger Problem Than Defensive Medicine

If I told you that, every week, between 4,200 and 8,400 people were poisoned by contaminated food, would you say restaurants needed special protection from negligence lawsuits because fear of such lawsuits would force them to clean too much? “Defensive cleaning,” so to speak.

 

If I told you that, every week, between 4,200 and 8,400 people were killed in fires caused by bad electrical wiring, would you say electricians needed special protection from negligence lawsuits because fear of such lawsuits would force them to insulate too much? Call it, “defensive wiring.”

 

Of course you wouldn’t. Thankfully, I made those numbers up: combined, foodborne illnesses and home electrical fires kill about 3,500 people per year. That’s one-hundredth as many people as the 210,000 and 440,000 patients killed each year by medical malpractice. But the “defensive medicine” myth — the claim that, when doctors are worried about getting sued, they start running unnecessary tests and doing unnecessary procedures, thereby increasing the health care costs for everyone — just won’t go away as a justification for “tort reform.”

 

The whole notion of “defensive medicine” has always been silly: doctors are held responsible for malpractice when they don’t do something required by the standard in the field that would have helped the patient. Doctors can’t be held accountable for not doing something that wouldn’t have made a difference. The notion has also always been misleading, too: as the Congressional Budget Office said a decade ago, “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians…,” a point repeatedly echoed by others even in the medical field like Atul Gawande.

 

Yet, a quick search of case law reveals the myth’s pervasive, ongoing effect on the legal system. There are the obnoxious defense “experts” deliberately making speeches in front of juries (Pin v. Kramer, 41 A. 3d 657, Conn. 2012), legislatures enacting special laws to hinder malpractice victims (Jackson v. HCA Health Services, 383 SW 3d 497, Tenn. 2012), and federal judges who should know better than accepting the myth at face value when deciding federal tort law (Gipson v. US, 631 F. 3d 448, 7th Cir. 2011). Continue reading

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When Writing, An Ounce Of Empathy Is Worth A Pound Of Grammar

A lawyer has two jobs. First, the lawyer thinks about how the law might work, good or bad, in their client’s situation, and then tells their client. Second, the lawyer brings others around to ideas about the law that are good for their client.

 

Outside my office, there’s a poster of the brilliant xkcd comic “Up Goer Five,” in which the various complicated parts of the Saturn V Moon Rocket are “explained using only the ten hundred words people use the most often.” As the comic explains, the “US Space Team’s Up Goer Five” is “the only flying space car that has taken anyone to another world.”

 

It is an amusing joke, juxtaposing one of the greatest engineering feats of humanity with a kindergarten-level vocabulary. It also carries an important reminder about the limitations of language: rightly or wrongly, words have different meanings for different people. (“Inconceivable!”) The first paragraph of this post won’t win any awards, but the vast majority of the population can read it and understand it: it is written at a 7th grade level with every word being one of the “ten hundred” most often used words except for law, lawyer, and client. You can check it with the Up-Goer Five Text Editor and the Hemingway Editor — in fact, you might want to check all of your writing with both of those tools.

 

Lawyers are routinely attacked for their use of language: just last week, the Chronicle of Higher Education noted sardonically, “Only two classes of people, it seems, stick up for the adverb: young adults and members of the bar.” (I’ll gladly stand up for adverbs: a lawyer should not needlessly omit them.) Yet, few professions agonize so thoroughly over language as the law. Back in August, the American Bar Association’s journal for young lawyers had an issue devoted to writing. It’s worth a review by all lawyers, including those who fancy themselves great writers. If you’re going to read only one article, make it Michael Bess’ pithy “How To Write Better.”

 

Similarly, although advice about writing never goes out of style — writers like to write about writing, no surprise there — there seems to be a bit more chatter devoted to the subject thanks to the recent promotion of Steven Pinker’s The Sense of Style. As The New York Times’ review summarized:

 

The cause of most bad writing, Pinker thinks, is not laziness or sloppiness or overexposure to the Internet and video games, but what he calls the curse of knowledge: the writer’s inability to put himself in the reader’s shoes or to imagine that the reader might not know all that the writer knows — the jargon, the shorthand, the slang, the received wisdom.

 

Yes, indeed. As Judge Richard Posner began his contribution to the aforementioned ABA article, “Successful communication requires the communicator to understand how much the person or persons to whom he is communicating understands.”

 

What I try to remember as a legal writer is that an ounce of empathy for the reader is worth a pound of grammar and vocabularyContinue reading

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