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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. You can call me at 215-948-2718 or email me at msk@thlawyer.com.

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The Details Of Judge Curiel’s Trump University Orders

Popehat already explained in general why there’s nothing unusual about Judge Curiel’s rulings in the Trump University case, i.e., that denying summary judgment is the norm. Nonetheless, Kevin Drum recently mused:

 

I think we all know perfectly well that Curiel is just an ordinary judge, and Trump is ranting against him because that’s what Trump does whenever something doesn’t go his way. He whines. Endlessly. Still, I’m kind of curious. It would be interesting if some kind of qualified lawyer type went through the records of these trials and reported back on whether Curiel seems to be conducting things fairly. Maybe he’s not! Maybe he really does hate Trump. Unfortunately, I suppose that would be a lot of work. Oh well.

 

Let’s take a trip “through the records” of Makaeff v. Trump University, No. 10-cv-0940, in the United States District Court for the Southern District of California. (Coincidentally, I’ve argued in that courthouse many times over the past few years, most recently in April. None of those cases were in front of Judge Curiel.)

 

Just so we have a baseline of Trump’s complaints, Jake Tapper spent a while trying to understand what, exactly, Trump had against Judge Curiel. Trump gave only two examples of “unfair” rulings by Judge Curiel:

 

  • “I have a case that should have been dismissed. … I should have won this case on summary judgment.”
  • “The woman that brought the case … gave an evaluation that was like the best you’ve ever heard. … They went to the judge and they said, Your Honor, we don’t want her anymore to be our plaintiff. So we say, let’s dismiss the case, that’s okay, let’s dismiss the case, and he said no I won’t dismiss the case and she doesn’t have to be the plaintiff.”

 

Trump repeated again the summary judgment complaint: “If somebody else were there, this would have been thrown out on summary judgment.”

 

The Makaeff case was filed on April 30, 2010, and transferred to Judge Curiel on January 30, 2013. I initially wrote a timeline of the orders after then, but, like with most litigation, a pure chronology quickly gets boring and confusing. So we’re going to break it up into three groups:

 

  1. The Class Certification Orders
  2. The Summary Judgment Orders
  3. The Orders Specific To Plaintiff Makaeff (“the woman that brought the case”)

 

The punchline is quite simple:

 

  • On the issues where Judge Curiel had discretion, he generally ruled against the plaintiffs, including refusing their request to amend the complaint and extend discovery, and, most recently, rejecting their trial plan.
  • On the issues where Judge Curiel had to rule on disputed legal concepts, he generally ruled against the plaintiffs. Trump’s own lawyers said the class action certification was “narrow,” and they’re correct. The plaintiffs sought a nationwide class action over Trump University’s deceptive “upsell” practices, but Judge Curiel refused to certify the claims for plaintiffs from 47 states, and, for the three states remaining, trimmed down the claims to just three “core” misrepresentations.
  • There’s only really one issue where Judge Curiel truly sided with the plaintiffs, and that was over the appropriate proof of damages. Trump argued that the plaintiffs had to prove the “difference in value” between what they received and what they were promised, and the plaintiffs argued they were entitled to a full refund because they received nothing of value. Judge Curiel’s decision was hardly unusual: to support it, he relied on a Ninth Circuit case (that’s the appellate court which will eventually review this case) and a District Court case that assessed damages in a case involving a deceptive business coaching scam.
  • Continue reading

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Towards A Unified Theory Of Aging And Cancer

In my work, I spend a lot of time thinking about cancer. In toxic exposure and pharmaceutical lawsuits, I have to prove, with a bevy of experts, that a given chemical or drug is capable of causing cancer. In medical malpractice cases involving undiagnosed cancer, I have to prove the cancer was treatable at an earlier stage, and prove how that treatment would have made a difference. I’ve spent hundreds of hours discussing cancer with oncologists, cell biologists, biochemists, immunologists, epidemiologists, and biostatisticians.

 

So pardon me as we depart from the law in this post and talk about the science of cancer and aging. Continue reading

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Hulk Hogan v Gawker Legal FAQ – In Their Lawyers’ Words

Updated at the bottom to add some thoughts, based on an article written by Hogan’s lawyer after the verdict.


In 1787, “Cincinnatus,” a common nom de plume of anti-federalists, wrote to James Wilson:

It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light, that we may groan under tyranny and oppression without knowing from whence it comes. But you comfort us, by saying,–“there is no reason to suspect so popular a privilege will be neglected.” The wolf, in the fable, said as much to the sheep, when he was persuading them to trust him as their protector, and to dismiss their guardian dogs.

The anti-federalists prevailed on this point, and the First Amendment was born.


Over the past fifty years, free speech rights have blossomed, partly through austere cases involving civil rights, but mostly as the result of terrible people doing obnoxious things. In Brandenberg v. Ohio (1968), a bunch of losers in the Ku Klux Klan were convicted of a criminal conspiracy by advocating for “revengeance,” then had their conviction overturned by the Supreme Court. In National Socialist Party of America v. Village of Skokie (1977), a bunch of Nazis sad about how WWII ended were prevented from marching in a heavily Jewish community, but the Supreme Court gave them their right to march and remind us all why we bombed their predecessors to smithereens. In Synder v. Phelps (2011), the odious trolls at the Westboro Baptist Church protested gay rights at the funeral for a solider killed in the line of duty, were sued by the soldier’s parents and hit with a verdict for intentional infliction of emotional distress, but then had the verdict overturned by the Supreme Court.


All of which brings us to Terry Gene Bollea v. Heather Clem, et al, Case No. 12-012447-CI, in the Circuit Court of Pinellas County, Florida. The docket is available here. It’s a little bit better known as Hulk Hogan v. Gawker. It involves a sex tape. You know that, know the facts, and have probably read a hundred different opinions on it.


This post is different: this will be entirely about the actual law involved. Continue reading

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Good Doctors Learn From Malpractice; Bad Doctors Lobby For New Laws

A week ago, the Wall Street Journal published an excellent article, “Clues to Better Health Care From Old Malpractice Lawsuits,” which detailed the way that malpractice insurers and medical safety groups have been pouring through thousands of closed malpractice cases to see ways they can improve health care.

As the Wall Street Journal says:

There are common themes in claims from almost every medical specialty—including failure to properly diagnose a patient or poor technique in a procedure. But data collections from different specialty groups are also helping to identify issues unique to different types of doctors, including primary-care physicians, anesthesiologists, emergency-room doctors and cardiologists.

It should come as no surprise that many of the “issues unique to different types of doctors” are exactly the same types of cases for which medical malpractice lawyers routinely advertise. Consider this list of improvements to Emergency Care:

Of 332 claims studied from 2007 to 2013, 52% of patient injuries were found to be caused by patient assessment issues.

  • The diagnosis was wrong because the doctor failed to consider other diseases and conditions with similar symptoms.
  • The doctor failed to order the right diagnostic tests.
  • The patient was discharged too soon.
  • The physician didn’t deal with abnormal test results or examination findings or use available information in the patient’s medical record.

Solutions: Avoid first-impression or intuition-based diagnosis. Make sure all specialists who evaluate patients have complete data.

Indeed. The very best source for information about how to improve health care comes from, no surprise, the times when it didn’t work right. That is to say: medical malpractice lawsuits. Continue reading

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Death From Medical Error: Even More Common Than The Headlines Say

A recent article in the British Medical Journal made the headline-grabbing claim that medical errors were now “the third leading cause of death in the US,” behind only cancer and heart disease. Medical errors, in their estimate, caused more deaths each year than motor vehicles, firearms, and suicides combined.

The backlash from the medical profession has already started. STAT News posted an equally-provocative article, written by an assistant professor of medicine, “Don’t believe what you read on new report of medical error deaths.” MedPageToday grumbled about the “superficial coverage” and made several complaints. Skeptical Scalpel said the article “shines no new light, only heat, on the subject.”

So who’s right?

Let’s start with two basic points. First, the primary author of the BMJ article, Martin Makary, isn’t a quack, but rather a surgeon at Johns Hopkins who has regularly written about transparency in health care. Second, the BMJ article wasn’t an original study, but rather a two-page analysis of existing literature about medical errors. There wasn’t much “new” in the article, except that they took the estimated rate of death from medical error in the 1999 Institute of Medicine report, To Err Is Human: Building a Safer Health System, and extrapolated it to the present by using 2013 US hospital admissions. Continue reading

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The Science Connecting Talcum Powder And Ovarian Cancer

On Monday, a jury in Missouri hit Johnson & Johnson with a $55 million verdict in favor of a woman who developed ovarian cancer after decades of using talc baby powder in her vaginal area as part of her normal routine. Younger readers might find this practice unusual, but this was commonly recommended and encouraged through advertisements with slogans like, “just a sprinkle a day keeps odor away.” To this day, Johnson & Johnson still doesn’t warn against use in the vaginal area, and instead continues to encourage adults to use it all over their bodies, because it “gives a cooling sensation, and helps to prevent chafing.”

The case was the second such huge verdict this year, following a $72 million verdict in February. But this verdict is in many ways a better indicator of the strength of these lawsuits: this case was selected for trial by the defendants, apparently based on the belief that the woman’s pre-existing endometriosis would absolve Johnson & Johnson. As the defense lawyer told the jury:

“The fact is, endometriosis is a recognized, significant risk factor for ovarian cancer,” she said. “It’s highly unlikely [that] Mrs. Ristesund would have had ovarian cancer if she had not had endometriosis. In fact, there’s no proof, none, that she wouldn’t have had ovarian cancer had she not used talc. None.”

Afterwards, another of Johnson & Johnson’s lawyers told the press: “The scientific reality is that cosmetic talc does not cause cancer.” This statement isn’t true, but I’ll get to that in a moment. Continue reading

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When Will Hospitals Learn How To Use Heparin?

Heparin is one of the most basic medicines used in medicine, the primary anticoagulant used by hospitals, which is why it’s part of the World Health Organization’s List of Essential Medicines.

But anticoagulants are so powerful that they are used as rat poison. Anticoagulants make a patient 10 times more likely to develop intracerebral hemorrhage, and thus all of them — Heparin, Coumadin, warfarin — have to be used with the utmost caution.

The Legal Intelligencer reported yesterday:

A Philadelphia jury has hit the Hospital of the University of Pennsylvania with a $44.1 million verdict for failing to recognize a woman’s adverse reaction to anti-coagulant medication before she suffered a brain hemorrhage.

While at the neurological intensive care unit, Tate was given the heparin. Using an activated partial thromboplastin time (or aPTT) test, staff measured coagulation in Tate’s blood as it rose from 19 seconds to nearly 32 seconds, court papers said. Testing then stopped for two days, until Tate sustained the brain hemorrhage, Tate’s memo said. When she was tested again, her aPTT level was 61, according to Tate’s memo.

The amount of heparin given is typically based upon a “nomogram,” in which the patient’s initial heparin dose is calculated purely on the basis of their weight. But that’s just to start the heparin. The cardiovascular system is dynamic and constantly changing in response to conditions, including both whatever medical condition brought the patient to the hospital (like surgery) and to reactions to the medicine itself. Thus, as a 2012 review by the American College of Chest Physicians noted, “because the anticoagulant response to heparin varies among patients, it is standard practice to monitor heparin and to adjust the dose based on the results of coagulation tests.” There’s a couple different types of coagulation tests. For years, aPTT was the most common, although newer evidence points towards using the antifactor Xa test. Continue reading

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Pennsylvania Workers Comp Doesn’t Need Evidence-Based Medicine (Not Like This)

“Evidence-based medical treatment guidelines” sounds like such a good idea. Who would want medical treatment that wasn’t based on evidence?

The problem is in the details. Way back in 1996, when “evidence-based medicine” was coming to the fore, the originators of the concept went out of their way to say “evidence-based medicine is not cookbook medicine,” and that it can “never replace individual clinical expertise and it is this expertise that decides whether the external evidence applies to the individual patient at all, and if so, how it should be integrated in a clinical decision.”

Fast-forward twenty years, and now the Pennsylvania General Assembly is considering whether to use evidence-based medicine as the sort of “cookbook medicine” it was never meant to be. Continue reading

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The Problems With Court-Appointed “Independent” Experts

Over at The Green Bag, Judge Richard Posner published “What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part I.” The article is quintessential Posner: concise, expansive, forceful, and packed with good and bad ideas with minimal supporting citations.

Let’s focus today on his arguments about Federal Rule of Evidence 706:

A big problem with jury trials is that often they involve technological or commercial issues that few jurors understand (not that many judges understand them either) and that the lawyers and witnesses are unable or unwilling to dumb down to a level that the jurors would understand. There is a solution to this problem, however, though one that few judges employ: appointment by the judge of an expert witness (thus a “neutral” expert, by virtue of not having been selected by the lawyer for one party to the litigation). The authority to make such an appointment is explicitly conferred on federal judges by Rule 706 of the Federal Rules of Evidence, but is alien to the Anglo-American judicial culture, in which the witnesses in a case are designated by the lawyers rather than by the judge.

The fault is the culture. Our legal culture, in contrast to that of most countries in the world (notably Japan and the nations of Continental Europe), is “adversary,” in the sense that the judge is the arbiter of a contest–a drama, really – put on by the lawyers for the contending parties. . . .

Id. at 190 (hyperlink added). Judge Posner has been beating that drum for over twenty years now. See, e.g., Indianapolis Colts, Inc. v. Metro. Balt. Football Club Ltd., 34 F.3d 410, 414-415 (7th Cir. 1994). The chorus seems to be growing louder. Five years ago, the American Bar Association published an article summarizing much of the federal court precedent on the issue, and suggesting wider use. Three years ago, one of the experts appointed by Judge Posner wrote his own article in support. Last year, Pennsylvania trial judge Bradford H. Charles (Lebanon County) wrote a thorough law review article in favor of the practice.

As Judge Richard Kopf points out, the use of “independent” experts goes against the grain of most judges, and there are more than a few practical problems with the concept: Continue reading

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When Dad Is A Trial Lawyer

An article on CNN last week began:

As a parent, this is another story that is impossible to comprehend: A 7-year-old girl is now dead after the bouncy castle she was playing on blew away at an Easter fair in Essex, England.

It is believed the castle was swept away by a gust of wind. The girl, Summer Grant, was taken to a local hospital and died of multiple injuries several hours later. A 24-year-old woman and a 27-year-old man have been arrested on suspicion of manslaughter by gross negligence, according to the Essex police on its Facebook page.

It’s of course tragic, but it’s not “impossible to comprehend.” Back in 2012, the medical journal Pediatrics published a study, “Pediatric Inflatable Bouncer–Related Injuries in the United States, 1990–2010,” which concluded:

From 1995 to 2010, there was a statistically significant 15-fold increase in the number and rate of these injuries, with an average annual rate of 5.28 injuries per 100 000 US children (95% CI: 2.62–7.95). The increase was more rapid during recent years, with the annual injury number and rate more than doubling between 2008 and 2010. In 2010, a total of 31 children per day were treated in US EDs for an inflatable bouncer–related injury, which equals a child every 46 minutes nationally.

It’s not incomprehensible when an inflatable amusement floats away in a gust of wind. It’s preventable.

And that’s the essence of my job: figuring out–after the fact–if an accident was preventable. You can imagine how risk averse I am as a result.

However, just because I’m a trial lawyer doesn’t mean that my kids can’t have fun. It just means that I strive to be reasonable, but sometimes “reason” has to almost hit me on the head. Continue reading

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