I’m a trial lawyer for injured people and businesses at The Beasley Firm. Founded in 1958, we have recovered over $2 billion for our clients through hundreds of verdicts and settlements in excess of $1 million. We’re listed in Super Lawyers, Best Lawyers in America, U.S. News’s Top Lawyers, [...]
A Note About This Blog
For the latest posts, scroll below.
I write this blog primarily for lawyers and interested non-lawyers. If you’re looking for a lawyer, start with this legal services page or call my office at (215) 931-2634.
I typically represent plaintiffs in contingent-fee personal injury and medical malpractice lawsuits, with additional work in business litigation. We also represent clients in mass torts and class actions, with a current focus on the link between Actos and bladder cancer, the recall of defective DePuy hip replacements, and the erosion problems with implanted vaginal mesh.
Lawyers may be interested in my Pennsylvania Civil Discovery book.
Is Apple’s Dismal iBooks Author Software License Even Enforceable?
It seems Dan Wineman was the first to sound the alarm, with Ed Bott using his soapbox at ZDNet to shout it from the rooftops: Apple’s new “free” iBooks Author program, which allows authors to create their own professional layouts while they write books, includes an astonishingly greedy and overbearing clause in its end-user license agreement (“EULA”):
B. Distribution of your Work. As a condition of this License and provided you are in compliance with its terms, your Work may be distributed as follows:
- (i) if your Work is provided for free (at no charge), you may distribute the Work by any available means;
- (ii) if your Work is provided for a fee (including as part of any subscription-based product or
service), you may only distribute the Work through Apple and such distribution is subject to the following limitations and conditions: (a) you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place; and (b) Apple may determine for any reason and in its sole discretion not to select your Work for distribution.Apple will not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your use of this Apple Software, including without limitation the fact that your Work may not be selected for distribution by Apple.
As Bott explains, “The nightmare scenario under this agreement? You create a great work of staggering literary genius that you think you can sell for 5 or 10 bucks per copy. You craft it carefully in iBooks Author. You submit it to Apple. They reject it. Under this license agreement, you are out of luck. They won’t sell it, and you can’t legally sell it elsewhere. You can give it away, but you can’t sell it.”
Jason Gilbert at Huffington Post considers the problems in enforcing the EULA as a “contract of adhesion” (because it’s included in the license and you have no ability to negotiate it) and as including “unconscionable” terms (a rare legal doctrine that courts virtually never apply). But there’s a more fundamental problem: the terms are unenforceable under the Copyright Act. Continue reading
The Legal Effect of Paterno’s Death
In less than three months, Joe Paterno went from one of the most revered figures in sports and a Pennsylvania institution to being implicated in a scandal, terminated from the job he had held for generations, and excoriated by the media to a historical figure who is no longer with us. He passed away over the weekend at the age of 85. A memento mori indeed.
I did not attend Penn State, so I’ll leave the remembrances to others. Paterno died, however, amidst a national scandal, two criminal prosecutions, and likely more than a dozen civil lawsuits to be filed. In those same three months the legal issues surrounding the Sandusky indictment have already advanced considerably, and now there’s a new question: what effect will Joe Paterno’s death have on the ensuing criminal and civil litigation?
I was quoted in a Reuters article that addressed those issues:
Because Paterno was not believed to have witnessed any purported abuse, his testimony would not have been crucial to Sandusky trial, said Paul Callan, a former prosecutor and criminal defense attorney.
But his death could set back the criminal case against Curley and Schultz.
“The Confrontation Clause (of the constitution) guarantees that criminal defendants will have the right to confront and cross-examine the witnesses against them at the time of trial,” Callan said. “No defense attorneys were present at the grand jury proceedings to do such a cross-examination.”
Max Kennerly, a Philadelphia trial lawyer who has followed the case, said Paterno’s death was unlikely to alter any civil litigation being contemplated by Sandusky’s accusers. If any were considering suing Paterno, they could just name his estate.
“Death doesn’t change your status as a party,” Kennerly said.
It wasn’t my intent to sound callous, but, in the legal world, death typically doesn’t break a case except where either a criminal defendant dies (and there’s no point in going forward) or the sole complaining witness against a criminal defendant dies (“no witness, no case” is the disturbing motto sometimes tied to witness intimidation or witness murder prosecutions, like Paul Bergrin’s). Here, Paterno wasn’t a defendant and, as far as anyone has said publicly, he didn’t witness any of the sexual assaults nor did Jerry Sandusky make any incriminating remarks to Paterno. Continue reading
Blame The Supreme Court, Too, For SOPA and PIPA
Yesterday, many of the largest and most influential websites on the Internet exercised their power in our attention economy by either going entirely dark (like Wikipedia and reddit) or by prominently displaying calls to action that recommended users contact their representatives and senators about the Stop Online Piracy Act (“SOPA”) in the House and the Protect IP Act (“PIPA”) in the Senate. The effort apparently worked, with support for both bills collapsing, particularly in the Senate, where even seven of the former co-sponsors of the bill renounced their support. Of course, there’s a good chance some of the more dubious provisions of both will come back at some point.
There is of course no doubt that the SOPA and PIPA bills were bad laws, little more than major media and content companies buying from elected representatives more power to enforce private copyright interests than your local county District Attorney or United States Attorney has to prosecute violent crime. The bills astonishingly allowed private companies to take down entire websites, and force other websites to change their entire business practices, upon nothing more than a vague allegation of copyright infringement. As Donny Shaw at OpenCongress described it more than a month ago:
Back in the old days, Congress was a branch of the federal government, separate from corporations, that wrote and passed laws to defend the general welfare of the United State. These days, however, that work is being outsourced to private interests while the actual members of Congress, quaint as they are, spend their time fundraising for their next re-election campaign.
Obviously Congress bears most of the blame for allowing such an absurd piece of special interest legislation to even make it to the floor, and SOPA/PIPA are certainly not the only examples of Congress granting special privileges to content companies under the guise of copyright law, but let’s not forget another party responsible for this set of affairs: the United States Supreme Court. Continue reading
The Future Of Asbestos Litigation And The 60,000 Mesothelioma Patients Yet To Be Diagnosed
One of my main purposes of writing this blog is to dispel the myths that surround trial lawyers and personal injury law. There’s a myth, for example, that every time some sort of chemical exposure or defective product might be more dangerous than suspected, trial lawyers fabricate tens of thousands of fraudulent claims and then extract millions of dollars from poor, helpless corporations that somehow cannot defend themselves.
Consider this silliness from a law professor invited to speak before Congress:
When in the distant future, we look back at asbestos litigation, we will surely include it among the great scandals in our history along with the Yazoo land frauds, Credit Mobilier, Teapot Dome, the Savings and Loan debacles, WorldCom, Enron and the vast Ponzi schemes that have recently unfolded. In nine published articles on asbestos litigation, I have documented the existence of a massively fraudulent enterprise involving the creation of literally hundreds of thousands of bogus medical reports. These reports have been used to extract billions of dollars in settlements from defendants in the tort system and from asbestos bankruptcy trusts which have been created with the assets of the companies that were bankrupted by asbestos litigation.
It doesn’t work that way. Consider the recent developments in the Asbestos Multi-District Litigation (MDL) — including, by the way, the summary dismissal, without trial, of every case where plaintiffs’ didn’t promptly produce a detailed medical report along with authenticated x-rays.
Asbestos exposure is “a tale of danger known about in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s.” Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)(quoting United States Judicial Conference Ad Hoc Committee on Asbestos Litigation). From an engineering standpoint, asbestos is an astonishingly useful product; it’s flame-resistant, provides exceptional insulation, and can mined in quarries throughout North America. It’s not surprising that it was used in virtually everything made from the 1940s to the early 1980s, from the Navy ships that fought World War II to the limited-print first-edition of Fahrenheit 451.
That, unfortunately, meant that three full generations of workers in the construction or heavy machinery industries were heavily exposed to asbestos, particularly if they were in the industry before the mid-1980s, when asbestos use declined in advance of the EPA’s ban in most products in 1989. As I wrote about a couple months ago, even if you never worked in any of those industries, there is so much asbestos floating around in our world that a biopsy of your lungs would already show millions of asbestos fibers and tens of thousands of asbestos bodies. If you were directly exposed, the numbers are far higher. There’s only so much a person’s lungs can take before the odds start shifting in favor of cancer.
But mesothelioma isn’t like an ordinary injury: no one develops mesothelioma overnight. Indeed, people rarely develop it within the first decade after being exposed to asbestos, and the average patient develops it an astonishing 32 years after their initial exposure. It’s no surprise that exposure in the 1940s and 1950s created a wave of symptoms and initial cancer diagnoses in the 1960s, then deaths and lawsuits beginning only in the 1970s.
Given the magnitude of the exposure and damages, the litigation grew to proportions never before seen by the federal courts, prompting the judicial panel on multi-district litigation to consolidate as many cases as possible into the Eastern District of Pennsylvania (EDPA) in 1991, where, over time, an astounding 191,822 asbestos cases have been filed. And that’s where we pick up the story. Continue reading
The Third Circuit’s New Spoliation Opinion On Producing Originals In Discovery (And Bad Faith In Sanctions)
It may very well be the oldest trial lawyer trick in the book: noticing an insubstantial, trivial, or non-existent discrepancy in a witness’ testimony and then throwing a fit about it and claiming the whole case is a sham. That’s what happened in Bull v. UPS, No. 10-4339 (January 4, 2012), an employment discrimination case arising from an on-the-job injury at UPS. Here’s the Third Circuit’s new precedential opinion in the case. ABA summary here.
In short, after the company’s orthopedist said the employee could not lift more than 10 pounds overhead, the company advised her it had no work for her and she had to go on permanent disability. On the recommendation of her union, the employee went to her own doctor, who at one visit said she could lift 50 pounds and then at the second visit said she could lift 70 pounds. UPS informally requested the original of the notes, claiming the copies she provided were illegible, but before she produced them she filed a worker’s compensation claim and an employment discrimination claim with the EEOC, which eventually turned into a lawsuit.
That’s where things got ridiculous. UPS knew one of the major issues in the case was her ability to lift heavy objects overhead. They also knew, before the lawsuit was even filed, that her primary care physician said she could lift enough weight, and they also already believed that the copies of the medical records they had were illegible.
At that point, any sane defense lawyer would have:
- served a subpoena upon her primary care physician for original copies of the record, and
- specifically requested from the plaintiff original copies of the record.
The company’s lawyer inexplicably did neither, and the issue remained dormant until trial, when the employee — who until that time understandably did not see anything wrong — said that she had the original copy at home, and that she could bring it in.
I am pretty sure that 9 out of 10 judges would have rolled their eyes when they heard the plaintiff had the originals at home, would have dismissed the jury for the day, and then would have told the plaintiff to go home and get that original and bring it in the next day. I have had exactly that same thing happen to me several times at trial. No harm, no foul is a good rule both for recreational sports and for sanctions.
For reasons that seem to me completely unfathomable, the judge responded by declaring a mistrial and inviting UPS’ lawyers to file a motion for sanctions, which the judge later granted, dismissing Bull’s case entirely.
Supreme Court Sets The Tone For 2012 Term: Might Makes Right
Yesterday, the Supreme Court issued its first two opinions this term* in civil cases, Minneci v. Pollard, a lawsuit brought by a prisoner who was denied medical care at a federal prison run by a private company, and CompuCredit v. Greenwood, a proposed class action on behalf consumers deceived into signing up for a credit card that claimed it would help “rebuild poor credit” but actually instantly filled its $300 limit with $257 in fees.
If you own a prison management company or fake credit repair company, yesterday was a good day for you. If you don’t, not so much.
The court’s reasoning behind the opinions is as poor as we’ve become accustomed to seeing from the Supreme Court lately (see, e.g., PLIVA v. Mensing, which used a statute that didn’t exist to tell the FDA an irreconcilable conflict existed between federal law and state law even if the FDA didn’t think there was a conflict at all). In Minneci, the Court held that a prisoner sentenced to serve time in a federal prison loses his constitutional rights the moment the jailhouse door slams shut if that prison happens to be run by a private company. In CompuCredit, Congress told consumers “You have a right to sue a credit repair organization that violates the [Credit Repair Organizations Act],” 15 U.S.C. §1679c(a), but the Court held that Congress didn’t really mean it, but instead meant, you don’t have the right to file a class action, you don’t have the right to file an individual lawsuit, but you do have the right to pay a couple thousand dollars for an arbitrator to hear your claim for $257.
I suppose I should give the Roberts’ Court some credit for consistency. Like with Citizens United and the Wal-Mart v. Dukes and AT&T v. Concepcion cases, the Court yesterday reaffirmed its primary theory of constitutional law and statutory interpretation: might makes right. Thrasymachus from Plato’s Republic would be impressed. Continue reading
The Secret Behind The Dumb But Successful Lawyer
Lawyers, particularly young lawyers, often pride themselves on being more clever than one another, and so particularly resent other lawyers who don’t seem to possess the same rapier wit and razor-sharp reasoning skills we claim for ourselves.
Every lawyer knows that dimwit who they can’t believe even passed the bar. The one with all those uninspiring and poorly-researched arguments in their briefs that never cite any relevant cases. The one who prefaces every argument to the court with “in layman’s terms,” as if the judge wasn’t also a lawyer.
The one who, despite being dumb as a stump, has a steady clip of good business.
Subrogation, Where Much Of The Hip Implant Settlement Money Will Go
We have a fair number of hip replacement lawsuits at the firm, so we follow all of the news related to them, including last week’s article in the New York Times about “The High Cost of Failing Artificial Hips“, which included a key point that hasn’t received much attention in the press:
In August, Mr. Dougherty underwent an operation to replace a failed artificial hip, but his pelvis fractured soon afterward. The replacement hip was abandoned and then a serious infection set in. Some of the bills: $400,776 in charges related to hospitalizations, and $28,081 in doctors’ bills.
I can guarantee you Mr. Dougherty’s insurer, hospital, and orthopedic surgeon don’t plan on taking payment in flowers and boxes of chocolate notes. As the article continues:
The incidents have set off a financial scramble. Recently, lawsuits and complaints against makers of all-metal replacement hips passed the 5,000 mark. Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare is also expected to try to recover its costs.
While his insurer has covered his bills so far, Mr. Dougherty said he was preparing to sue his surgeon, who may have implanted the device incorrectly, and Johnson & Johnson, which produced his artificial hip, to help recoup some of the insurer’s money.
“All these payers want to be paid back,” said Matt Garretson, the founding partner of the Garretson Resolution Group, a firm in Cincinnati that manages product liability cases.
Perhaps it’s best to explain the situation by explaining what the New York Times means when it says Garretson’s firm “manages” product liability cases. We’ve retained Garretson’s firm in the past: they don’t represent clients in litigation, but rather assist plaintiff’s lawyers with “lien resolution,” a multi-billion-dollar industry that deserves a lot more attention from legislators in this day and age. Continue reading
Google’s New Antitrust Liability With Search Plus Your World And The Chrome SEO Penalty
[UPDATE: Just a few days after I wrote this post based on the Chrome issue, Google released their biggest change in a decade, the "Search Plus Your World" feature that directly integrates results from Google properties like Google+ and Picasa into standard Google search results. That change — a mixing of search with Google verticals, or church and state, so to speak — raises the antitrust stakes considerably. Twitter has already raised alarms.
The antitrust analysis for "Search Plus Your World" is the same as for the Chrome SEO penalty, because it would also be alleged to be 'exclusionary conduct.' Did Google make that change as part of, in the Supreme Court's words, "the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident?" Interestingly, we can already see Google's planned response in their description of why Facebook and Twitter — the obvious competitors for this same market — won't do as well in the new Google search framework:
“Facebook and Twitter and other services, basically, their terms of service don’t allow us to crawl them deeply and store things. Google+ is the only [network] that provides such a persistent service,” [Amit] Singhal told me. “Of course, going forward, if others were willing to change, we’d look at designing things to see how it would work.”
That could indeed protect Google from antitrust liability. They’re saying, in effect, “you don’t show up as highly in our results because our agnostic search crawler can’t access as much from you as it does from Google+.” It’s similar to how, as SEOMoz pointed out, Google+ pages rank so well not because of any specific Google tampering, but because of exceptional optimization to rank for searches of names. That might convince a judge that the new move was intended to improve user results, not to exclude Twitter and Facebook.
It’s an aggressive move, one without considerable risk given the Senate’s concerns outlined below.]
It’s no secret that Google’s biggest fear of late has been the potential for antitrust liability arising from its near-total dominance of the online search market, particularly mobile search. Google has so far prevailed, including in the myTriggers claim that many believe was secretly funded by Microsoft (how else would some little nothing company have the funds to pay for Microsoft’s own chief antitrust lawyer to represent them?), but their biggest challenge is yet to come. Back in September, the United States Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights held somewhat hostile hearings on the issue, and just last month the Chairman and Ranking Member of the Subcommittee sent a bipartisan letter to Federal Trade Commission requesting an investigation. More on that in a moment.
Aaron Wall of SEOBook gets the credit for spotting hundreds of posts ending “this post is sponsored by Google,” many of which included direct, followed links to the download page for Google’s Chrome browser. As any business with a web presence knows, there’s almost no greater sin in Google’s eyes than paying people to write phony drivel accompanied by followed links, so Danny Sullivan of Search Engine Land wondered aloud what the consequences would be:
Paid links drew much attention last year, after Google penalized JC Penney, as well as Forbes and Overstock for using them. Google even banned BeatThatQuote, one of its own companies last year, over the issue. In 2009, Google penalized Google Japan for its own search results for the same issue, not removing it but reducing its ability to rank for 11 months.
Potentially, all this means that Google will have to ban the Google Chrome download page over paid links. That would suck for Google, since it’s busy running ads for Google Chrome, which will in turn prompt people to search for it.
Matt Cutts, head of Google’s webspam team —and increasingly their public face, like in the videos Google prepared as part of a public relations campaign after the Senate’s Antitrust Subcommittee hearing— responded on Google Plus that the campaign violated Google’s quality guidelines, and so “the webspam team has taken manual action to demote www.google.com/chrome for at least 60 days,” after which the Chrome team can submit a reconsideration request. Problem identified, action taken.
So where’s the antitrust problem?
The Ethics Of Using Money To Link Criminal And Civil Sexual Abuse Cases
Norm Pattis’ latest blog post raises an issue near and dear to me: the ethics of personal injury lawyers. I certainly don’t think personal injury lawyers are above reproach, and I’ve commented before on some of the stupid things they can do, but I’m not going to sit quietly and nod politely when a lawyer in another field claims its unethical for an alleged victim’s lawyer to zealously represent their client.
Norm is a criminal defense lawyer; as he posted a few days ago, the next year brings for him “trials involving child sex abuse, child pornography, drugs.” I’m going to go out on a limb and speculate that at least one of those defendants is in fact guilty of at least one crime with which they’re charged, and yet I wish Norm the very best in his defense: that’s his job, and he is required to zealously represent his clients and use every appropriate tactic available to further their defense. That’s how our adversarial system works. That’s how constitutional rights are protected.
Norm, however, apparently doesn’t have the same respect for what the civil lawyers for sexual abuse victims do. Continue reading
