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

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Younger People Are Actually More Supportive Of Democracy

Have you seen this 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 ... 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: 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 ... Continue Reading

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Personal Jurisdiction Under Daimler AG and Walden

Pfizer likes California. As the company brags on its website, “Pfizer La Jolla's 25-acre campus includes five buildings totaling more than 500,000 square feet of state-of-the-art facilities, with specialized laboratories and equipment for structural and computational biology, molecular design, drug metabolism, high throughput chemistry, and pharmacology.” Pfizer reaps billions in profits from its California sales (profits Pfizer is going to avoid paying taxes on by asserting they were earned overseas), and Pfizer shovels that money right back into California politics, spending over $6 million this year trying to influence a California ballot measure that would cap prescription drug costs. But ... Continue Reading

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