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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. 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 Levaquin, Essure, Mirena, food flavoring lung injuries, and recalled hernia mesh. You can call me at 215-948-2718 or email me at msk@thlawyer.com. Continue reading

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Free Speech And Trump Tweets: When Twitter Is A Limited Public Forum

[Update, June 6, 2017: A week after I wrote the below, the Knight Institute wrote a letter to President Trump arguing the same. Eugene Volokh says there’s a “private capacity” argument. I addressed that below, the same way the Davison court ruled on it. Moreover, just today Press Secretary Sean Spicer admitted the tweets are “official statements by the President of the United States.” Also, Charles Ornstein has a good summary of other elected officials blocking constituents, and litigation over it.]
 
 
 
While in the White House, Donald Trump’s personal twitter timeline, @realDonaldTrump, remains a key method by which he communicates with the public. He uses it to conduct foreign policy, to urge specific action by Congress, to promote certain media articles, and, of course, to persuade the public on key issues, including with implied references to classified government information. And, critically for our purposes here, he allows the public, the media, and other elected representatives to post tens of thousands of comments in response to each tweet:
 
 
 
trumptweetcomments
 
 
 
As Danny Sullivan pointed out, President Trump has recently become more aggressive in blocking people on Twitter, and so Sullivan has created a list of blocked users. Sullivan wonders if this creates a First Amendment issue, noting,

When Trump blocks, he doesn’t just impact himself. He blocks some Americans from speaking in arguably the most important forum, his tweets.

For our purposes here, I’ll refer to @realDonaldTrump’s tweets as “tweets,” and the responses to them as “replies,” so we don’t get confused. When @realDonaldTrump “blocks” someone on Twitter, they can no longer read his tweets or reply to them. That is in contrast to “muting,” which removes the person’s replies from @realDonaldTrump’s view but leaves them up for other users.
 
 
 
So, are President Trump’s tweets a public forum? If so, does that place limits on when President Trump can block users from replying?
 
 
 
I believe the answers are “yes” and “yes.” Because President Trump uses @realDonaldTrump for official business, and because President Trump allows (arguably, invites) replies on his tweets, he has made his Twitter timeline into a limited public forum. As such, the First Amendment applies. He can potentially impose content restrictions, but he can’t impose viewpoint restrictions.
 
 
 
Here’s why. Continue reading

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Goodyear v. Haeger: The Supreme Court Muddles Sanctions Law Again

Earlier this month the Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger et al., a case I wrote about way back in 2012 involving the scope of sanctions (including attorney’s fees) available when a party to a lawsuit brazenly lies about important evidence throughout most of the case.
 
 
 
The case involves a tire defect lawsuit and the extraordinary lengths to which the defendant, Goodyear, went to hide evidence of its culpability.
 
 
 
These are the underlying facts: the Haeger’s motorhome swerved and flipped over when one of the Goodyear G159 tires blew out. Goodyear’s G159 tire was originally designed for regional delivery trucks. In the 1990s, Goodyear started marketing it for Recreational Vehicles, even though the tire wasn’t meant to withstand the weight and heat of an RV traveling at interstate speeds, particularly in the hotter parts of the country. Goodyear’s own testing data showed that the G159 became unusually hot at speeds above 55 miles per hour – but in the Haeger case, Goodyear failed to produce this data. Instead, they repeatedly lied to the plaintiffs, claiming they had produced “all testing data” when, of course, they hadn’t. Continue reading

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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

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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

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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

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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

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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

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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

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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

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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

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