Read This First

I write this blog primarily for lawyers and others interested in the law. If you’re looking for a lawyer, start with my legal services page. The lawyers at my firm focus on catastrophic injuries, like medical malpractice or product liability, and lawsuits over prescription drug and medical implant side effects, including cases involving Nexium, Levaquin, Essure, Mirena, Taxotere, and recalled hernia mesh. You can call me at 215-948-2718 or email me at msk@thlawyer.com. Continue reading

TweetLikeEmailLinkedIn

Is Judge Gorsuch Really Committed To Legal Textualism?

Judge Gorsuch’s confirmation hearing for his nomination to the United States Supreme Court begins today. He has been called “an originalist and a textualist,” someone with a “strong commitment to textualism.” He is repeatedly compared to the late Justice Scalia, a comparison that seems to have merit.
 
 
 
I am no fan of “originalism” or “textualism.” In practice, being an “originalist” or a “textualist” is a lot like being “gluten-free” except when it comes to pasta and bagels. There’s no consistent logic to these approaches and, just as bad, there’s no consistent application of them. I have yet to see a single judge or legal scholar in the United States who rigorously applies “textualism” to every case they see. Instead, most “textualists” are happy to apply these concepts rigorously when it will produce the result they want — but they’ll gladly relax them or ignore them if it produces a politically-inconvenient outcome. Continue reading

TweetLikeEmailLinkedIn

Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have To Disclose Before Trial?

 
 
 
Federal court litigators are of course familiar with Fed.R.Civ.P. 26(a)(2)(B), which requires “a written report” from the witnesses we typically think of as “expert witnesses,” i.e., the witnesses “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” But what about other types of expert witnesses?
 
 
 
“Non-retained” expert witnesses are more common in federal court than many people realize: think of the doctors who treated an injured plaintiff, the government employees who investigated an accident, the engineers who worked on a defective product, or the competing inventors of a design in a patent infringement case. What do parties have to disclose before trial about those witnesses? Continue reading

TweetLikeEmailLinkedIn

HR 985: A Sneak Attack On Veterans, Consumers, and Patients

Without even holding a hearing, the House Judiciary Committee just passed a new bill (H.R. 985) that would make it far harder to sue large corporations when they cheat or hurt people. The vote was on party lines, with all Republicans voting for it and all Democrats voting against. The bill now goes to the full House — but there’s still time to make sure your Representatives know how you feel about it. Call your Representative and tell them to put their constituents ahead of the U.S. Chamber of Commerce, the top-spending lobbyist in the country.

 
 
 

Have you ever been cheated by a bank on an overdraft fee? So have millions of Americans, and the only way they ever get that money back is through a fraud and restitution class action. From stock losses to pension mismanagement to consumer scams to unpaid wages, for most of the frauds in America, the only way to get a dime back is through a class action.

 
 
 

Do you live on the Gulf Coast? That’s where I grew up, and I know that the only way those communities recovered anything from BP for the Deepwater Horizon oil spill was through multi-district litigation (“MDL”). From Vioxx pills causing heart attacks to DePuy hips causing metal poisoning to Volkswagen lying about emissions tests to the NFL hiding brain injuries, the MDL process is the only way to hold accountable reckless corporations when they hurt hundreds or thousands of people.

 
 
 

The so-called Fairness in Class Action Litigation Act of 2017 (H.R. 985) would wipe away decades of federal court precedent and would override the laws of all 50 states in an effort to ruin class actions and MDLs. The American Bar Association has opposed it for a variety of reasons, including how it “would circumvent the time-proven process for amending the Federal Rules of Civil Procedure established by Congress in the Rules Enabling Act” and how its requirements would have precluded veterans from suing the Veterans Administration over delayed claims. Seventy consumer, labor and environmental groups have opposed it. Thirty-eight groups that represent individuals with disabilities have opposed it. One-hundred twenty civil rights groups have opposed it. Law professors Myriam Gilles and Elizabeth Burch have explained why it’s a jumbled mess that will confuse courts and delay cases.

 
 
 

So why didn’t the House Judiciary Committee hold a hearing? Continue reading

TweetLikeEmailLinkedIn

Rethinking Article III Standing Requirements

More than 2.6 million people tuned in to hear the Ninth Circuit’s oral argument in State of Washington, et al., vs. Donald Trump, President of the United States, et al, one of the cases challenging the Muslim refugee ban. It was a remarkable display of public interest in the workings of the federal judiciary. Those curious citizens were then treated to a lengthy argument over standing, one of the more obscure and frustrating doctrines in the law.
 
 
 
“Standing” refers to a particular plaintiff’s ability to bring a particular claim. If your third cousin gets hit by a drunk driver, your third cousin has “standing” to sue the drunk driver. You, however, do not have “standing” to bring that lawsuit. It sounds like such a straightforward issue, but, thanks to years of dubious Supreme Court precedent, “standing” is now a doctrinal morass that sporadically results in the dismissal of important cases, leaving a wide swath of potentially illegal or unconstitutional actions unreviewable by any court. Continue reading

TweetLikeEmailLinkedIn

Donald Trump And Honest Services Fraud

LBJ gave up his radio stations. Jimmy Carter gave up his peanut farm. Untangling Donald Trump from his web of companies and interests is a bit more complicated.

 

Yesterday, a team of lawyers at Morgan Lewis released a “white paper” about “conflicts of interest and the President,” apparently prepared for President-Elect Donald Trump. (“Apparently” because it’s not clear if Morgan Lewis prepared it for Donald Trump, The Trump Organization, the newly created trust, or some combination of all three.) The white paper argues that the President and Vice President are exempted from the federal criminal conflict of interest statute, 18 U.S.C. § 208, and that the Foreign Emoluments Clause of the Constitution isn’t violated by Trump (or his company) doing business with foreign governments “so long as foreign governments pay fair-market-value prices.”

 

What was more interesting, however, was what Morgan Lewis did not say: how is Donald Trump going to ensure he and his sons don’t commit “honest services fraud?” Continue reading

TweetLikeEmailLinkedIn

Chantix And The End Of Evidence-Based Pharmaceuticals

Last month, the FDA allowed Pfizer to change the warning label for Chantix — a drug prescribed for smoking cessation — so that it no longer has to have a prominent “black box” warning for psychiatric effects. Instead, it has a warning lower in the label that says:

Neuropsychiatric Adverse Events: Postmarketing reports of serious or clinically significant neuropsychiatric adverse events have included changes in mood (including depression and mania), psychosis, hallucinations, paranoia, delusions, homicidal ideation, aggression, hostility, agitation, anxiety, and panic, as well as suicidal ideation, suicide attempt, and completed suicide. Observe patients attempting to quit smoking with CHANTIX for the occurrence of such symptoms and instruct them to discontinue CHANTIX and contact a healthcare provider if they experience such adverse events. (5.1)

Kaleigh Rogers at Vice hails the change: “Though this is a win for Pfizer, it’s also a win for science: years of independent scientific research has shown there’s no link between the drug and an increased risk of negative psychiatric effects.” That sort of loose analysis — “no link,” instead of the more accurate “no statistically significant difference among users with no prior history of psychiatric conditions” — is what gets us into trouble. The problems only get worse once we look at the clinical trial that supposedly justified this change, a trial so plagued with problems that the FDA disregarded many of the investigators’ conclusions and initiated an investigation into protocol violations.
 

Put simply, we don’t have adequate scientific data to conclusively prove or disprove a link between Chantix and neuropsychiatric adverse events, but the evidence we do have is quite worrying.
 
Continue reading

TweetLikeEmailLinkedIn

Younger People Are Actually More Supportive Of Democracy

Have you seen this horrifying graphic?

nyt-horrifying-graphic

It’s from a New York Times story, “How Stable Are Democracies? ‘Warning Signs Are Flashing Red.’” The graphic suggests that people were asked whether it was “essential” to live in a democracy and, in response, more than half of people born after the 1960s said it was not. Worse, the graphic suggests nearly 70% of people born after 1980 said it was not “essential” to live in a democracy.

If that were true, it would be quite alarming.

Here’s the good news: it’s not true. No one was even asked if it was “essential to live in a democracy.”

Here’s even more good news: that same study actually showed,

  • 98.9% of Americans under 30 believe it is “important” to live in a democracy.
  • Americans under 30 are three times less likely than Americans over 50 to say that free elections are not “essential.”
  • Americans under 30 are half as likely than Americans over 50 to say that civil rights protecting people from state oppression are not “essential.”
  • Americans under 30 are far less likely to say it is “essential” that people “obey their rulers.”

There are lies, damned lies, and statistics. Let’s see how this all went wrong.

Continue reading

TweetLikeEmailLinkedIn

When Lawyers’ Blogs Are Cited In Federal Courts

As I wrote two weeks ago, a petition for certiorari is pending in Bristol-Myers Squibb Co. v. Superior Court, a case that might change the rules for specific jurisdiction. A week ago, amicus briefs were filed by several large corporations and their lobbying groups, including a brief by GlaxoSmithKline that included these curious quotes and citations:

GSK-Miller

When’s the last time you saw a multi-billion-dollar corporation tell the Supreme Court of the United States to get the real facts about personal injury lawsuits from The Trial Lawyer Magazine and a six-year-old post on accidentinjurylawyerblog.com?

 

I’d certainly trust Ron Miller before GlaxoSmithKline. Sure, there’s reason to question the credibility of both: GlaxoSmithKline paid $3 billion to settle fraud claims brought by the Department of Justice, whereas Ron Miller didn’t follow me on Twitter until recently. Despite that obvious lapse in Ron’s judgment, he’s a trustworthy guy.

 

The citation to Ron’s blog is not the only time I’ve seen a legal blog cited in a brief. I recently saw a federal appellate court brief filed by a drug manufacturer include a citation to Drug & Device Law, a blog written entirely lawyers who represent drug manufacturers. I don’t have a problem with that, either. The citation to Drug & Device Law was in many ways a de facto extension of the page limits, because the post in question advocated for the same position the defendants were taking, but the same could be said for many of the nominally “unbiased” law review articles that are routinely cited in briefs and by courts.

 

But there are deeper issues we need to consider here. Are parties encouraging courts to decide cases based on facts outside of the record? Should courts decide cases based on advocacy pieces from non-parties? Are we really entering an era in which a lawyer can credibly support an argument by referencing something they read on the Internet? Continue reading

TweetLikeEmailLinkedIn

Personal Jurisdiction Under Daimler AG and Walden

Pfizer likes California. As the company brags on its website, “Pfizer La Jolla’s 25-acre campus includes five buildings totaling more than 500,000 square feet of state-of-the-art facilities, with specialized laboratories and equipment for structural and computational biology, molecular design, drug metabolism, high throughput chemistry, and pharmacology.” Pfizer reaps billions in profits from its California sales (profits Pfizer is going to avoid paying taxes on by asserting they were earned overseas), and Pfizer shovels that money right back into California politics, spending over $6 million this year trying to influence a California ballot measure that would cap prescription drug costs.


But that didn’t stop Pfizer from claiming in a court filing earlier this week that lawsuits against it cannot “be fairly heard by a California state court.” Pfizer claims that allowing lawsuits against it to be heard in California would deny Pfizer “its due process right not to be hailed into a foreign court that lacks both general and specific jurisdiction.” It’s as if California was some sort of totalitarian regime on the other side of the world, rather than the home to Pfizer’s 25-acre campus less than a mile from the Torrey Pines Golf Course.

If this sounds nuts, that’s because it is nuts. But this is the wacky world of personal jurisdiction that big corporate defendants want to create by way of the Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 20 (2014). The proper application of Daimler AG has been one of the most contentious issues in the federal courts over the past two years, and it’ll remain contentious for years to come.

So grab a cup of coffee and let’s get to work.

Continue reading

TweetLikeEmailLinkedIn

In Praise Of Mercedes-Benz’s Killer Robot Car

I’ve been writing about the law of driverless cars since 2011. For more than forty years, the general rule for when a car was defectively designed is whether the manufacturer met “a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.” Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968).


Volvo got a lot of free press last year when it said it would accept legal responsibility for crashes involving self-driving cars, but, as always, the fine print said otherwise:

Volvo also told the BBC it would only accept liability for an accident if it was the result of a flaw in the car’s design. “If the customer used the technology in an inappropriate way then the user is still liable,” said Mr Coelingh. “Likewise if a third party vehicle causes the crash, then it would be liable.”

In other words, Volvo agreed to nothing at all. Volvo simply agreed it would be held responsible in the same circumstances under which it would already be held responsible: when there was a flaw in the car’s design.


That aspect raises an obvious question: how should driverless cars be designed? Most of the media attention has been devoted towards philosophical questions like “the Trolley Problem.” Continue reading

TweetLikeEmailLinkedIn