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
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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.
Susan G. Komen, March of Dimes, and Corruption by Branding
[Update: The Komen Foundation reversed its decision. That's of course the right decision; the question now is if they will publicly explain how they came to make such an obvious mistake, and why they dishonestly denied the influence of politics in making the decision.]
If by chance you read this blog but live under a rock, earlier this week the Susan G. Komen Breast Cancer Foundation, Inc., cut all grant funding for Planned Parenthood Federation of America, Inc. For some reason the Susan G. Komen Foundation claims the decision wasn’t political even though, of course, it was. This isn’t even an abortion issue, because Planned Parenthood spends the vast majority of its funds providing non-abortion services, like the 750,000 breast cancer screenings they provide every year, including at steeply discounted rates for lower income women.
It was politics, pure and simple, and the astonishing part is that the Susan G. Komen folks seemed totally unprepared for the backlash. Just search Twitter for what people are writing to @komenforthecure. The whole scene is reminiscent of the March of Dimes / KV Pharmaceuticals / Makena fiasco from March of 2011, in which another well-respected charitable organization lost its way, got involved with the wrong sort of people, and ended up making a wildly irresponsible choice diametrically opposed to the claimed mission of the organization.
It’s the second big debacle for Susan G. Komen Foundation in this young decade — in late 2010 and early 2011, the Foundation came under fire for its aggressive stance in protecting its trademarked phrase “race for the cure” (listed in the US Trademark database as “organizing and conducting foot races to raise money for breast cancer research and local community breast health awareness programs”) against small groups like, for example, “kites for a cure,” which flew kites to raise money to treat lung cancer. Komen hasn’t sued them, exactly, but it has filed oppositions with the U.S. Patent and Trademark office, which all the same compels the smaller organization to hire lawyers and deal with the issue. As Luke MacDowall wrote in an extensive law journal note on the trademark issues involved, ”[t]his case presents the perfect example of a situation where one probably has a responsibility not to enforce one’s rights” because enforcement of Komen’s trademark does little to reduce confusion among the public while causing substantial damage to other organizations with worthy and compatible missions.
The Komen Foundation eventually backed down — as they should have in the first place given how, as best I can tell, they lost the only fight they ever continued to its conclusion, with the American Cancer Society prevailing on its use of “cars for a cure,” 2001 TTAB LEXIS 455 (Trademark Trial & App. Bd. June 13, 2001) — but the core problem remained.
Pregnancy Is (Legally) Like A Disability If Employers Accommodate Temporarily Disabled Workers
Via Eric B. Mayer’s Twitter feed, I saw that a few days ago the Wall Street Journal’s blog for working parents, The Juggle, posted on a hot legal issue these days, “Should Pregnancy Be Treated as a Disability?”
A recent study by a University of Dayton law professor, Jeannette Cox, asserts that pregnant women should be covered by the Americans with Disabilities Act, to protect them from being fired or forced to perform labor that could be harmful to mother or child. (The paper is forthcoming in March in the Boston College Law Review.)
The ADA doesn’t recognize pregnancy as a disability, leaving pregnant women physically and financially vulnerable on the job, concluded Cox, who studies employment discrimination. She found that pregnant women are at risk for losing their jobs when “reasonable adjustments” aren’t made, such as retail workers fired for drinking water at work or pregnant police officers forced to perform rigorous assignments (while injured officers were given lighter duty).
She’s not kidding about “water at work” — I’ve heard of plenty of cases about pregnant women whose employers denied them basic necessities like water or chairs or bathroom breaks. Professor Cox’s idea is eminently sensible, of course, because there’s really no difference between a complicated pregnancy and the types of permanent disabilities covered by the ADA, except that the former is usually temporary.
In general, a woman with an uncomplicated pregnancy is unlikely to need anything more than the types of “accommodations” most of us take for granted, like drinking water when we’re thirsty or sitting down when we need to rest our legs. Pregnancy usually becomes an issue in the workplace in two circumstances: either the employer started imposing extra restrictions on the pregnant employee (sometimes as a means to force the pregnant employee out and thereby avoid Family and Medical Leave Act duties, and sometimes just out irrational prejudice in violation of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964) or the pregnant employee developed a complication like pre-eclampsia, placenta previa, or gestational diabetes, and so has a weight/lifting restriction imposed upon them by their doctor.
At that point, the employer can either accommodate the pregnant woman, force her to take whatever family leave is available to her (often exhausting it before the birth of her child), or try to fire her. A disturbing number of employers do the latter two.
Why Drunk Drivers File Lawsuits For Their Own Accidents
When I first start working as a personal injury lawyer, I didn’t grasp how most “dram shop” lawsuits worked in practice. Most everyone agrees that, if a bar keeps serving a customer alcohol until they’re intoxicated, and the customer gets in a car accident and injures someone, then that other person should be able to sue both the bar customer and the bar. But what about the drunk driver? Why would a jury believe that the bar, and not the drunk driver, is responsible?
I thought about the answer as I read three separate stories of unsympathetic plaintiffs who played a role in their own injures, two at Walter Olson’s Overlawyered and one at Daniel Cummins’ Tort Talk. Continue reading
“No Tolerance” for Drug Manufacturers Fabricating FDA Data Doesn’t Mean Much
As I’ve written before, as a legal matter, drug companies have it easy. Consider what drug company lawyers called their ten “best” court opinions of the past year, many of which involved courts re-writing laws to dismiss lawsuits brought by injured patients. In the notorious PLIVA v. Mensing case, a 5-4 Supreme Court tried its hardest to wash away any claims injured consumers could have against generic drug manufacturers by ruling that, as a matter of law, any lawsuit would conflict with the FDA’s regulations — even though the Supreme Court couldn’t point to any actual conflicting regulations, and even though the FDA itself said there wasn’t a problem.
Any hopes that consumers of generic drugs would be protected by the FDA’s own oversight of generic drug manufacturing came to a crashing halt earlier this week when the Department of Justice and the Food and Drug Administration jointly announced their Consent Decree with Ranbaxy Laboratories:
Through investigation by the department and the FDA, the government uncovered numerous problems with Ranbaxy’s drug manufacturing and testing in India and at facilities owned by its U.S. subsidiary, Ranbaxy Inc. These problems include failure to keep written records showing that drugs had been manufactured properly; failure to investigate evidence indicating that drugs did not meet their specifications; failure to adequately separate the manufacture of penicillin drugs from non-penicillin drugs in order to prevent cross-contamination; failure to have adequate procedures to prevent contamination of sterile drugs; and inadequate testing of drugs to ensure that they kept their strength and effectiveness until their expiration date.
The government also determined that Ranbaxy submitted false data in drug applications to the FDA, including the backdating of tests and the submitting of test data for which no test samples existed. All of these actions constituted violations of the federal Food, Drug and Cosmetic Act, making many of Ranbaxy’s drugs adulterated, potentially unsafe and illegal to sell in the United States.
As one member of the DOJ’s civil division said in the press release, “Submitting false data to the FDA in drug applications will not be tolerated.” These weren’t minor mistakes. It was a gross disregard for public safety covered up by deliberate falsifications to authorities.
And then we find out the penalty: Continue reading
Is Apple’s Dismal iBooks Author Software License Even Enforceable?
[UPDATE, February 3, 2012: Adam Reid points out via Twitter that Apple has substantially re-written their EULA addressing the concerns raised in my post. (Reid characterizes them as merely "clarifying" the EULA). Now, the EULA asserts that "If you want to charge a fee for a work that includes files in the .ibooks format generated using iBooks Author, you may only sell or distribute such work through Apple, and such distribution will be subject to a separate agreement with Apple." That puts Apple on far steadier ground — they no longer claim an exclusive license to author's works at all, but rather restrict use of iBooks-formatted files.]
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
