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Max Kennerly, Esq.
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Philadelphia, PA 19103.

Pennsylvania lawyers may be interested in my Pennsylvania Civil Discovery book. New readers should read my most popular law blog posts.

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The Doctors Company’s Dubious Medical Malpractice Statistics

This morning, MedPage Today — which should know better — began their “Morning Break” with this description and link:

An analysis of closed claim data from The Doctors Company suggests that physicians spend about 10% of their professional life dealing with malpractice claims, but most of those claims are closed with no money paid to the plaintiff.

Goodness! That sounds incredible. Turns out, it is incredible. In fact, it’s false.

The linked post by “The Doctors Company” at The Doctor Weighs In says:

The average physician spends over 10 percent of his or her career consumed in defense of an open malpractice claim. For the average neurosurgeon, that number is 25%—that’s a quarter of a career dealing with the intense emotional stress of defending your reputation and livelihood.

And the majority of those claims close with no payment to the plaintiff. That means the average U.S. physician in every specialty spends a significant portion of his or her career in court defending malpractice claims, but the overwhelming majority of those claims are found to be at best fruitless, and at worst frivolous.

These numbers come from a RAND Corporation objective analysis of the claims database of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. According to Richard E. Anderson, MD, FACP, chairman and CEO of The Doctors Company, these numbers show that our medical malpractice litigation system is broken—and must be fixed.

The only support given for any of these assertions is this YouTube video, where Dr. Anderson makes the same claims.

But there’s a problem: the RAND Corporation’s “objective analysis” never said anything like that. Continue reading

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The Lawyer Who Was Too Smart And Honest For Politics

[Update: The Hamilton County Democratic Party executive committee wisely voted against censuring Ben Lindy. Apparently Lindy was asked, “Why did the story end up in the Washington Post?” That’s easy: the best way to ‘go viral’ is to do something really stupid.]

Ben Lindy is the kind of person we all hope goes into politics: he grew up in Cincinnati, went straight from Cincinnati public school to Yale, then taught through Teach for America, then worked in the DC Public Schools system, then went to Yale Law, and then returned to Ohio to establish Teach for America’s office in Cincinnati. Now he’s running for state representative back in his hometown.

I met Ben Lindy during our first week at Yale. He’s the nicest and most trustworthy person I know. If you meet him, he’ll be the nicest and most trustworthy person you know. It doesn’t surprise me that, though an “upstart” candidate who wasn’t backed by the party, he’s now surging into the lead for the 31st District of Ohio. He’s a great guy who has committed himself to education, which I shouldn’t have to tell you is the first step in building a better world for our children. If our state capitols were filled with people like Ben, we’d have balanced budgets, flying cars, and kindergartners doing calculus (or as close to these things as we can get).

But now there’s a “controversy” surrounding him. It seems the Hamilton County Democratic Party establishment favors someone else — why would they do that is a good question that needs to be asked — and so they dug deep into Ben’s past to find the absolute worst thing about him they could find, a skeleton in his closet to knock him out of the race.  Continue reading

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Bill Cosby’s Non-Prosecution Agreement Is Unenforceable

[Update, January 20, 2016: The Montgomery County District Attorney’s Office filed its response, laying out how Cosby’s claimed “non-prosecution agreement” is really a grant of immunity, which is only available by a specific statutory process that was not even arguably followed here. Intriguingly, they also include correspondence between the prior District Attorney (Risa Vetri Ferman) and Bruce Castor, in which Ferman bluntly said she had never heard of this agreement and asked Castor to provide every document he had reflecting the agreement. Castor pointed only to that same press release which says nothing about immunity.]

[Update, January 28, 2016: Billy Penn has a story on the issue. I disagree that Judge Steven O’Neill would be required to find Castor’s testimony incredible in order to find the “agreement” unenforceable. Rather, I think Jeffrey Lindy has it right:

“Every DA is different,” said Jeffrey Lindy, a Philadelphia defense attorney and former prosecutor. “I’ve never heard of oral immunity. What I have heard of is a nod and a wink.” … Lindy said it’s possible Castor didn’t want a record of the deal and Phillips, who was “very old fashioned,” agreed to the oral deal because it might have been the best he was going to get.

Exactly. The best Cosby could get from Castor was “a nod and a wink.” That’s not the same thing as an enforceable immunity agreement.]

Last week, Bill Cosby filed a “petition for writ of habeas corpus” which argued:

The charges violate an express agreement made by the Montgomery County District Attorney in 2005, in which the Commonwealth agreed that Mr. Cosby would never be prosecuted with respect to the allegations of sexual assault made by complainant Andrea Constand This agreement was made for the express purpose of inducing Mr. Cosby to testify fully in Ms. Constand’s civil litigation against him. In reliance on that agreement, Mr. Cosby testified in 2006 without indication of his constitutional rights against self-incrimination.

It would sure be helpful to see a copy of that agreement, but it turns out there is no written agreement at all. Rather, the “agreement” was a conversation between Cosby’s lawyer and the District Attorney, a conversation that neither Cosby’s lawyer nor the District Attorney documented at the time. Cosby’s petition says, “Although Mr. Cosby’s then-counsel is since deceased, then-District Attorney Bruce Castor has confirmed he entered into this agreement on behalf of the Commonwealth. Mr. Cosby is prepared to offer Mr. Castor’s testimony at an evidentiary hearing on this petition.”

As a reminder, last fall Bruce Castor lost his electoral battle against Kevin Steele for the office, after which Steele initiated the prosecution against Cosby. So it seems the fate of the new District Attorney’s biggest case may hinge upon the testimony of his opponent in the election. There are few worse places to take a political feud than to the middle of a criminal trial, but it seems that’s just what will happen here.

Wait, it gets better. Continue reading

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The FDA Is Doing Too Little, Too Late About Transvaginal Mesh

I’ve written about transvaginal mesh so many times I feel like a broken record. But it’s still an issue affecting tens of thousands of families and will continue to be an issue as long as that infernal implant keeps being sold and the manufacturers keep refusing to do right by the families that have already been hurt by them.

Yesterday, the FDA announced:

The U.S. Food and Drug Administration today issued two final orders to manufacturers and the public to strengthen the data requirements for surgical mesh to repair pelvic organ prolapse (POP) transvaginally, or through the vagina. The FDA issued one order to reclassify these medical devices from class II, which generally includes moderate-risk devices, to class III, which generally includes high-risk devices, and a second order that requires manufacturers to submit a premarket approval (PMA) application to support the safety and effectiveness of surgical mesh for the transvaginal repair of POP.

On the surface, this is quite a victory, and it may mean the end for many of these implants.The requirements for a “class III” premarket approval device are far stricter than those for the “class II” medical devices.

As I wrote several years ago, that “class II” status was a big reason why the transvaginal mesh health debacle happened in the first place:

Highly similar surgical meshes have been used by surgeons to repair hernias and other abdominal issues, and so the FDA allowed the use of those meshes for pelvic repairs, including when implanted into the vaginal wall, without first requiring controlled human studies. This loophole — called the “510(k) clearance” — has been sharply criticized by the Institute of Medicine, which has recommended eliminating the “510 (k) clearance” program entirely. Those studies would have likely revealed the problem before the surgical meshes were implanted in over 70,000 pelvic and vaginal wall procedures a year.

With the “class II” status gone, the mesh manufacturers can no longer use that loophole. But the FDA left open a pretty big loophole themselves, as revealed in the FDA’s discussion of the orders in the Federal Register, which includes this: Continue reading

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Could Jeremy Carter’s Death Have Been Prevented?

Earlier this week, Jeremy Carter, the grandson of Jimmy Carter, died at 28 years old from an apparent heart attack. As his brother Josh wrote in a heartbreaking blog post,

He had a whole battery of tests just a couple months ago. He couldn’t eat well and his legs ached. He had nearly every doctor at Emory look at him. They ended up prescribing him Vitamin A and Vitamin D. After all that. He got the full work over and really just needed vitamins. If a 28 year old heart is going to go out, shouldn’t they have found that? Maybe, but they didn’t.

Indeed. It’s a tragic death that raises many questions.

Most of time, when grieving families contact me, they’re not looking to file a lawsuit, they’re looking for answers. Doctors and hospitals rarely tell family members much about the circumstances, or about what could have been done differently, and so those family members start looking for answers. I made it my policy long ago that, even if I didn’t believe a lawsuit was warranted or would be successful, I would try to explain to everyone who contacts me about a medical malpractice case what actually happened and if something could have been done differently.

From the information Jeremy’s family has provided publicly, we can start to figure out what might have gone wrong. The coroner hasn’t determined the cause of death yet, and apparently is not going to conduct an autopsy, but the circumstances strongly suggest a heart attack.

Jeremy was only 28-years-old. Coronary heart disease is rare in individuals younger than 40, but it’s not unheard of.  In the famous Framingham Study, acute myocardial infarction occurred in men 30 to 34 years old at a rate of 12.9 per 1,000. One of the few studies to look at risk factors for coronary heart disease in men under 40 found that the risk factors were roughly the same as for older men, i.e., “age, serum cholesterol level, systolic blood pressure, and cigarette smoking.” Continue reading

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Why Drug Companies Want The FDA To Stop Asking For Clinical Trials

Big Pharma is trying to ram two sweeping overhauls through Congress, the “21st Century Cures Act” and the “Reciprocity Ensures Streamlined Use of Lifesaving Treatments Act.” (The latter is so obnoxiously named that it is typically referred to as the Cruz-Lee proposal.) Both of these bills include good provisions, like increasing funding for the National Institutes of Health and allowing the Food and Drug Administration more flexibility to review drug approvals in other countries. However, the bills also include truly terrible provisions, like instructing the FDA to abandon the use of clinical trials and giving Congress the power to approve drugs on its own.

In favor of the bills, there’s economist Alex Tabarrok, who argues there’s an “invisible graveyard” of patients whose lives could have been saved by drugs that were not yet approved. In opposition, there’s medical school professor Dr. Aaron Kesselheim, who argues there’s no evidence the FDA has blocked innovation that actually helps patients.

Tabarrok calls that “laughable” and “magical thinking,” apparently unlike his “invisible graveyard.” He lays down a challenge: “We live in a world of tradeoffs. Let’s debate the tradeoffs.”

Challenge accepted.

Let’s start with some basic facts: Continue reading

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The Ethical and Legal Dilemmas of Self-Driving Cars

Back in 2011, I wrote about how tort liability would apply to self-driving cars. As I wrote then, it made the most sense to go right back to the case that first adopted the “crashworthiness doctrine,” Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968), which held “We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel.” Liability for autonomous cars shouldn’t be any different: if an autonomous car causes a crash, then the manufacturer will be liable if they did not use “reasonable care” in designing, programming, and testing the car.

Via Jason Kottke, I saw a recent TED video raised a whole bunch of ethical dilemmas arising from self-driving cars. Namely, the TED talk raised the possibility that autonomous vehicles might find themselves in situations where they could “choose” — depending on the programming — to take actions that value certain lives over others. Continue reading

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All About Objecting To The Form Of A Question At A Deposition

I’ve written several times before about deposition misconduct, such as in the posts “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences” and “Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?” Today’s post is about the venerable “objection to the form,” and the extent to which a lawyer is allowed or required to elaborate on the nature of their “form” objection. As I argue below, the weight of the precedent suggests that a lawyer raising a form objections should say nothing more than “object to the form” unless the lawyer taking the deposition asks them to elaborate.

Most motions for sanctions arising from depositions involve the lawyer defending a witness interjecting themselves into the deposition with speaking objections that are either so numerous that they obstruct the deposition or are so verbose that they coach the witness into giving a different answer.

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” Fed. R. Civ. P. 30(c)(2) is similarly blunt: at a deposition, “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Moreover, because depositions in federal court are conducted with the “usual stipulations” — which typically preserves all objections except for those to the form of the question — there is very little a lawyer defending a deponent needs to say except that which is necessary to preserve a privilege or to preserve those “form” objections. Courts have repeatedly sanctioned lawyers for coaching witnesses by “objecting” in improper ways that signal to the witness that they should say a question is “vague,” or that they “don’t want to speculate,” or that they “don’t know” an answer that they actually do know.

Given the above, most ethically-minded lawyers limit themselves at deposition to simply saying “object to the form” and little more. I was thus quite alarmed to come across this post by Adam Glazer which argued, “Those seeking to avoid waiver by asserting form objections may actually have it backward[.]” Continue reading

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Should There Be A Researchers’ Privilege For Junk Science?

Over at Drug and Device Law, Jim Beck highlights a new law review article, “Researchers’ Privilege: Full Disclosure,” published by Dr. Frank Woodside, described by the article as “of counsel to the law firm of Dinsmore & Shohl and [ ] a nationally known trial lawyer representing manufacturers of pharmaceutical and medical devices, chemicals, and flavorings, as well as producers of consumer products.”

Woodside argues:

Sometimes the authors of published studies or counsel relying on these researchers’ work have attempted to place barriers in the way of academicians or counsel who wish to challenge the validity of the published studies and their underlying data. These barriers originate from a misunderstanding, or misuse, of the concept of academic freedom—a litigation strategy that asserts the existence of the so-called “researchers’ privilege,” also known as “academic privilege,” “academic freedom privilege,” or “the research scholar’s privilege”—as well as the improper application of the Freedom of Information Act (“FOIA”). These challenges create a legal environment where opinions based on the published results of flawed research are admitted into evidence without providing opposing parties the opportunity to develop the facts necessary to assess the opinion’s validity. This admission of uninvestigated evidence creates the potential for unjust results.

Although published literature plays a big role in large-scale litigation these days, subpoenas against third-party researchers have generally fared poorly in the courts. One of the few successful examples I know of involves the Prempro products liability litigation, where Wyeth was able to compel the Women’s Health Initiative to turn over hormone treatment assignments and trial data collected. (In case anyone is wondering how that issue turned out, although Wyeth continues to fight these cases in the courts, there is a scientific consensus that hormone therapy increases the risk of breast cancer.) Continue reading

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The Lucrative Mass Torts Scam That Wasn’t

The lawsuit brought by financier Amir Shenaq against mass-torts law firm AkinMears has made the rounds of the tort reform blogs (e.g., SETexas Record, Daniel Fisher at Forbes, and Paul Barrett at Bloomberg), so I figured some plaintiff-side commentary was in order. The details of the lawsuit confirm what I’ve been saying for years: “Mass torts is not an area in which you want to dabble and start throwing around discounts. It’s work, it’s risky, and it can be very, very expensive.”

In essence, a former hedge fund executive filed suit against the law firm claiming that he was hired to raise millions of dollars in funding so that the firm could acquire thousands of transvaginal mesh lawsuits. He alleges that he brought in the funding (through his connections in the finance world), but, once he did, the firm fired him.

Shenaq’s complaint was filed publicly then sealed by the court. As Forbes recounts, the Complaint alleges:

“AkinMears is not run like a traditional plaintiff’s law office, and the Firm’s lawyers do not do the types of things that regular trial lawyers do,” like meet clients, file pleadings and motions, attend depositions “or, heaven forbid, try a lawsuit,” Shenaq claims in his suit. “Despite the fact that AkinMears’ lawyers do not have to dirty their hands with the mundane chores that come with actually practicing law,” the firm charges a 40% contingency fee “which is then divided in some fashion among the participants in its ever-shifting syndicate.”

And, of course, there’s also an allegation about the plaintiff’s lawyers buying themselves an interest in a private jet. Continue reading

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