No Sympathy For The Corporate Defendant

There are a few truisms in civil jury trial practice, one of which is: don’t make an appeal to sympathy. See, e.g., Arnold v. E. Air Lines, Inc., 681 F.2d 186, 196-200 (4th Cir. 1982)(“the blatant, direct appeal for sympathy in closing argument [was] plainly improper”). The jury, too, is specifically told to disregard sympathy. See, e.g., Ninth Circuit Model Jury Instructions, 1.1B (“you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy”).   Typically, when it comes to complaints about “sympathy” in civil trials, the complaints come from insurance companies, big companies, and hospital ... Continue Reading

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Pokémon GO Players Need To Send This Email Immediately

  Here's the punchline: if you play Pokémon GO, then, within thirty (30) days of downloading it, you need to send an email to termsofservice@nianticlabs.com with the subject "Arbitration Opt-out Notice" in which you specifically say that you are keeping the right to litigate any dispute with Niantic, Nintendo, and any other party relating in any way Pokémon GO.   Got it? Good. Let's talk about why.   Pokemon Go was released on July 5th, and since then it has taken the Internet by storm; it's already more popular than Tinder and, by the end of the week, should have more users ... Continue Reading

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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. ... 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 ... 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, ... 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 ... 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 ... 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 ... 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 ... 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, ... Continue Reading

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