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Via TechDirt, I learned that Carl Malamud, proprietor of Public.Resource.org, was sued last week by the State of Georgia for copyright infringement. Malamud is perhaps the leading advocate in the world for putting primary legal materials — statutes, case law, dockets, etc — on the internet. He’s also the leading advocate for making those same legal materials part of the public domain under copyright law, so they can be freely copied and distributed.
This isn’t the first time Malamud has been sued for his efforts. He’s been sued before for publishing technical standards: check out this ABA Journal article from June 2014 and this opinion piece by Malamud from February of this year. (As far as I can tell, none of the cases have reached the point of dispositive rulings.) The lawsuit brought by the State of Georgia is, however, to my knowledge the first time he’s been sued by the government itself — a situation that raises a host of troubling questions aside from the details of copyright law.
Malamud is accused of distributing copies of the “Official Code of Georgia Annotated.” According to the Complaint:
The copyrighted annotations include analysis and guidance that are added to the O.C.G.A. by a third party publisher of the O.C.G.A. as a work for hire. These annotations include synopses of cases that interpret the O.C.G.A., summaries of Opinions of the Attorney General of Georgia, and summaries of research references related to the O.C.G.A.
The “third party publisher” in question in LexisNexis. I’m quite familiar with LexisNexis; I am the co-author of a legal guide published by LexisNexis, one that includes plenty of “synopses of cases” and “summaries of research references” related to Pennsylvania law. I know all too well that it takes a substantial investment of time and energy to produce these works and to keep them updated with current changes in the law, and I’d be awfully upset if Malamud posted the whole thing online.
It is impossible to overstate the impact that Atticus Finch has had on the American legal system and its members. Consider this opening from a case decided by the Florida Supreme Court in 2013:
In his final remarks to the jury, Atticus Finch, the heroic protagonist of Harper Lee’s iconic novel, To Kill a Mockingbird, proclaims
I’m no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.
Harper Lee, To Kill a Mockingbird, 205 (Warner Books, Inc., 1960). The case before us today addresses the very heart in which Atticus’s faith roots — the integrity of our courts, the soundness of our juries, and the men and women who “make [them] up.” Id.
Matarranz v. State, 133 So. 3d 473 (Fl. 2013). Or consider this 1999 concurrence from a Justice of the Washington Supreme Court: “We would most likely agree with Atticus Finch’s advice to his precocious, six-year-old daughter, Scout: ‘[Y]ou just hold your head high and keep those fists down. No matter what anybody says to you, don’t you let `em get your goat. Try fighting with your head for a change.’” State v. Riley, 976 P. 2d 624 (Wa. 1999). Trial lawyer Jim Perdue wrote a book titled, I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know. In 2010, the Texas Bar Journal had an article about the origins of the character, and how he exemplified the best aspirations of lawyers. Atticus is to lawyers as Galileo is to scientists.
Tuesday is the release date of Go Set A Watchman, in which Atticus Finch is, twenty years after the events of To Kill A Mockingbird, a closed-minded bigot who believes “The Negroes down here are still in their childhood as a people” and that the civil rights movement is moving too quickly.
As one quipster remarked on Twitter, “It’s like finding out Santa Claus beats his reindeer.”
So what are we, as lawyers, to do with this information? In my humble opinion: nothing.
Tort reformer Ted Frank and I have had our disagreements over the years. (See here and here.) In recent years, he has focused his work on filing objections to class action settlements through the Center for Class Action Fairness. Some of his work has focused on getting a better deal for class action members who, he alleged, weren’t receiving fair portions of the proposed settlement, but the bulk of his objections — at least to my knowledge — have focused on reducing the attorney’s fees claimed by the class counsel.
As Alison Frankel reported yesterday, it seems that, in the course of his contingent-fee work on behalf of people objecting to class action settlements, Frank has found himself in a situation he himself describes as “lurid, complex and Grishamesque.” The situation seems to have arisen from his personal goals as a lawyer being different from one of his client’s goals, and from his fee-splitting relationship with another firm, the very same issues he so frequently raises in his objections.
It would seem like a perfect opportunity for schadenfreude, but, in fact, all I can feel for him is sympathy — and his misfortune in the In Re: Capital One Telephone Consumer Protection Act Litigation presents a tremendous opportunity for tort reformers, politicians, the press, and the public to see just how difficult class actions, mass tort, and other large-scale litigation can be. In that case, Frank filed an appeal on behalf of a class member objecting to the fee claimed by Lieff Cabraser, and then everything went south. Continue reading
As I wrote three years ago, one of the ‘basics’ as a young litigator is to learn how to take a deposition. Depositions are so commonplace in civil litigation — even the smallest of soft-tissue limited-tort car accident cases will typically have a couple — that it’s easy to forget how truly strange they are. Preparing for and taking a deposition is part psychology, part detective work, and part pure habit. The latter is what I want to focus on today.
Neither the Federal Rules of Civil Procedure nor most state rules provide much guidance on the conduct of depositions. As a result, most depositions are typically free-form. There aren’t many basic ground rules. Even critical issues like when a lawyer can demand a break in the deposition to confer with the witness remain unsettled. Indeed, most depositions start with the questioning attorney giving “instructions” to the witness that have no basis anywhere in the case law, they’re just a custom the lawyer has learned through their practice.
Which brings me to an issue I saw arise last week: when a questioning attorney gets an answer they believe wasn’t responsive to the question, what should they do?
This situation happens quite frequently, particularly when it comes to sophisticated parties and expert witnesses. These types of witnesses often come into depositions with a story they want to tell, and they are hell-bent on telling it, regardless of the questions asked.
I’ve addressed this issue before in a prior post, arguing that the key is persistence. (Sitting here today, I’d add that asking a clear, concise question is equally important.). But some lawyers respond by aggressively saying, “move to strike!”
Huh? Why? Where in the rules does it say an attorney can “move to strike” an answer they don’t like? Continue reading
Rolling Stone’s recent article, “A Rape on Campus,” needs no introduction. (If you really need one, check the extensive Wikipedia article.) On April 5, Rolling Stone formally retracted the article and published an extensive outside critique of its fact-checking and reporting methodology by Steve Coll, dean of the Columbia School of Journalism. The next day, the Phi Kappa Psi chapter at UVA issued a press release announcing “plans to pursue all available legal action against the magazine.”
As the press release begins:
“The report by Columbia University’s School of Journalism demonstrates the reckless nature in which Rolling Stone researched and failed to verify facts in its article that erroneously accused Phi Kappa Psi of crimes its members did not commit,” said Stephen Scipione, President of the Virginia Alpha Chapter of Phi Kappa Psi.
Scipione’s use of the word “reckless” is undoubtedly a reference to part of the standard for proving defamation, i.e. showing “the statements were made with knowledge that they were false or with reckless disregard for their truth.” Cashion v. Smith, 749 SE 2d 526, 533 (Va. 2013). But that magic word, “reckless,” is just one small part of the analysis. As explained below, whatever that critique by Steve Coll says about Rolling Stone’s journalistic practices, that critique also includes a lot of information and conclusions that will make it difficult for the fraternity to prevail in a defamation lawsuit.
Defamation has a special place in our firm’s history (see some of our cases here, here, and here — they all settled confidentially), and the truth is: defamation cases are tough. By and large, the vast majority of people whose reputations have been unfairly damaged in the media do not have a viable legal claim. Defamation cases can fail for a million reasons, and here I want to focus on just two problematic issues: the fact that the fraternity is bringing the case, and the Coll report’s findings about the mindset of Rolling Stone.
Let’s start by being clear about what this post is not about. This post is not about sexual assault on college campuses; for that, watch The Hunting Ground. This post is not about journalistic standards; for that, Poynter has compiled more than a dozen reactions to the article’s retraction.
Rather, this post is about the single issue raised by the press release: whether “the Virginia Alpha Chapter of Phi Kappa Psi” has any “available legal action against the magazine.” Continue reading
Years ago, a family friend hired a contractor to do some basic work around the house, and paid half the cost as a deposit. Mid-way through, it became clear the contractor was doing a terrible job and that everything would need to be redone, so they terminated the agreement and brought in someone else. The contractor sued my friend in small claims court, asking for the balance of the contract. I told the friend to counterclaim for the initial deposit, and to bring to the hearing evidence of the faulty work.
At the hearing, my friend showed a short video of what happened when they carefully put a ball on the crooked shelf the contractor installed: it swiftly rolled off. The judge turned to the contractor, who exclaimed, “they never said they wanted it to be level!”
I thought of that case while reading the Pennsylvania Supreme Court’s recent opinion in Brady v. Urbas, a medical malpractice case. In every malpractice case I’ve tried, the lawyer for the defendant doctor tries to make a big fuss about the “risks of the procedure” that were disclosed to the patient. The argument is irrelevant and prejudicial: obviously, the patient didn’t consent to the risk of negligent treatment; rather, the patient consented to the risks of the procedure if it was done properly.
But the defendants always raise it anyway, mostly to confuse the jury into thinking that the patient accepted this “risk” when they went in. It’s no different from a contractor claiming a homeowner didn’t ask for level shelves, but, sadly, courts routinely allow this stealth ‘assumption of risk’ argument to pervade malpractice trials.
Yesterday, my wife called me on her way back from the Pennsylvania Supreme Court’s oral arguments to tell me about Green v. Pennsylvania Hospital et al., a medical malpractice case. She swiftly assigned me two tasks: first, I had to figure out who the appellate lawyer for the plaintiff was (because they had done an excellent job), and, second, I had to write about the case.
I had a hunch about the excellent lawyer, and the docket confirmed it was indeed Howard Bashman, proprietor of the impossibly productive How Appealing. I’ve admired Bashman’s appellate work before, including referencing his briefs in my post on Lance v. Wyeth back in 2011, in which his client subsequently prevailed, 85 A.3d 434 (Pa. 2014), making good law for every consumer of prescription drugs in Pennsylvania — which of course includes virtually every Pennsylvanian at one point or another.
Bashman posted yesterday, “The oral argument seemed to go very well.” I don’t think that’s a fair description; the first-hand account I received said his argument was “fabulous.”
Here’s the underlying Superior Court panel opinion and dissent and Bashman’s petition to the Pennsylvania Supreme Court, which lay out the two issues, one relating to “ostensible agency” (i.e., when a hospital can be held liable for a doctor that isn’t formally their employee) and one relating to whether an expert witness nurse can testify that a defendant nurse ‘caused’ the patient’s harm. Both revolve around interpretations of Pennsylvania’s MCARE statute (PDF copy here), specifically 40 Pa. State. Ann. §§ 1303.516 & 1303.512.
If I just re-wrote my thoughts about the legal issues, I’d be doing a disservice to Bashman’s clear and concise petition, with which I entirely agree and which I recommend to anyone with a passing interest in these subjects. But there’s still plenty of interesting issues to raise: the case is a reminder of just how frustrating, cruel, tragic, irrational and stupid the law can be if we don’t stop to think about the purpose of the laws we have in the first place.
We begin with a stupid tragedy. Joseph Fusco was admitted to Pennsylvania Hospital for shortness of breath, rapid breathing, and wheezing, sent to the Intensive Care Unit, and intubated. A week later, to try to wean him off the ventilator, Fusco was given a tracheostomy. A nurse later noticed the tracheostomy was “squirting” blood, so an emergency team was called, including an Ear, Nose and Throat physician. The ENT negligently tried to reinsert an endo-tracheal tube through the trach, rather than through his mouth; the tube ended up in his thorax, forcing pressurized air that collapsed his trachea. Fusco asphyxiated.
[Updated July 13, 2015, to reflect Tanja Carter’s Wall Street Journal article. See below. Also, see my post about Atticus Finch’s racism in Go Set A Watchman.]
For someone who is “one of the world’s most famous literary recluses,” and hasn’t given an in-depth interview or published any work in more than 50 years, Harper Lee has made quite a lot of headlines over the past few years.
She sued her agent, then her hometown museum, and in both alleged that each had taken advantage of her declining health. Her complaint against her agent alleged that, because of her “serious deafness” and “macular degeneration,” she was barely able to hear or read anymore. (The complaint also alleged, at paragraph 48, that as of October 2012, Tonja Carter, Lee’s estate lawyer, was instructing HarperCollins to pay all To Kill A Mockingbird royalties to her. We’ll come back to that.)
Thus, when Harper Lee announced — through Tanja Carter, of course — that she was publishing Go Set A Watchman, a “sequel” to To Kill A Mockingbird that had been miraculously found by that same lawyer, more than a few eyebrows went up.
Misfortune of Knowing recounts much of the backstory. Many people who have known Lee for decades, from the editor-in-chief at W.W. Norton to the owner of her favorite restaurant, David’s Catfish House, have said Lee was adamant that nothing else was going to be published in her lifetime. Others in Monroeville, Alabama, say that Lee’s health has been in a severe decline for years, and that they feel she’s being manipulated and that she likely lacks the capacity to decide one way or another.
Adding to the concern, it seems that virtually no one can actually see Lee anymore, not even her editor or her publisher. As reported by The New York Times, everything goes through Tanja Carter:
Ms. Carter appears to have won the trust of Ms. Lee’s publisher, too. She was a key contact for HarperCollins as the deal for the new book was negotiated. “We talked to her through her lawyer and friend Tonja Carter,” said Jonathan Burnham, the senior vice president and publisher of Harper, adding that getting direct permission from Ms. Lee “wasn’t necessary.”
Harper Lee’s editor said he didn’t even know about the book until it was announced, and that he hasn’t had any contact with her: “She’s getting progressively deafer and more blind, and that’s where things stand. I don’t hear from her. There’s no reason why I should, because we don’t need to do anything. I write her notes now and then, but I haven’t heard anything back and I wouldn’t expect to.”
Though adverse to publicity, Lee wasn’t a recluse, and for decades Lee delighted in conversing with neighbors, acquaintances around town, writers, editors, and publishers — and now she won’t even talk to the editor and publisher of her own book?
I wrote back in 2013 that Lee’s unusual litigation created “the impression that this fight is driven more by the professionals around Lee than it is by her.” Now, based on the information available through published reports, the situation looks less like ‘a fight driven by professionals’ and more like elder abuse. Continue reading
The Philadelphia Inquirer recently picked up on a story that has been around the Philadelphia legal community for a while, i.e., the $1 million in sanctions entered against attorney Nancy Raynor in the Sutch v. Roxborough Memorial Hospital case.
Raynor was defending Roxborough Hospital in a medical malpractice case in which the hospital failed to inform a patient or her doctor that her chest x-ray had revealed a potentially cancerous nodule on her lung. Twenty months later, the patient was diagnosed with Stage IV lung cancer. She died six months later, and her relatives sued.
The decedent was a smoker. In advance of the trial, the court held that the defense could not admit evidence of her smoking into the trial. That’s not unusual: Pennsylvania law precludes doctors from trying to avoid responsibility for their malpractice by blaming the plaintiff for their own cancer. Patients go to doctors for treatment; it’s irrelevant when or how a plaintiff was injured. What matters is if the doctor did, or did not do, what they were supposed to do. Indeed, the Sutch case has been around so long that it already went through its appeal to the Pennsylvania Superior Court, which affirmed the trial court’s order excluding from the case any reference to smoking.
At trial, however, Raynor called to the stand one of her expert witnesses, Dr. John Kelly, and asked him, “Did [the patient] have any cardiac risk factors?” In response, the expert said: “The patient was a smoker. The patient was hypertensive. So, yes, I mean, those are big risk factors.” That was, obviously, in violation of the court’s order. The plaintiff’s lawyers at Klehr Harrison and Messa & Associates moved for a mistrial and for sanctions. The court, after hearing Raynor and Dr. Kelly’s side of the story, granted the sanctions, the bulk of which are attorney’s fees for the time the plaintiff’s lawyers had to spend on what ultimately ended up being a superfluous trial.
I won’t comment more on the sanctions, except to make two points. First, it wasn’t the first time Raynor was sanctioned in the case — she had previously been sanctioned by another judge for improperly contacting the employer of the plaintiff’s expert witness. Second, after the sanctions were entered, this is how Raynor responded to The Legal Intelligencer:
“I’m not only going to appeal the decision, I am going after everyone in this,” Raynor said, adding that she is calling for an investigation into [Judge] Panepinto and has met with lawyers to discuss lawsuits against Messa & Associates and Klehr Harrison. … “If they think for one nanosecond that I’m laying down and putting up with their bullshit, they’re crazy,” Raynor continued.
It is rarely helpful to “call for an investigation into” or to “go after” a judge who enters an adverse order.
But my interest in this case was piqued by a follow-up article in yesterday’s Inquirer, in which it was reported that the Pennsylvania Medical Society hopes to get involved in the case by filing an amicus brief. The hypocrisy of the Pennsylvania Medical Society is almost too much to take: Continue reading
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.