This post was inevitable. I’ve been writing about defamation law on this blog for years. Back in July 2010, for example, I explained why Mark Zuckerberg wouldn’t sue the makers of The Social Network, and he didn’t. In 2012, I said Michael Mann’s claim against the National Review was “non-frivolous,” but that it was a difficult question as to whether it could proceed – and three years later the Washington Post said it seemed “the court may be having some difficulty” deciding it, and the case is still stuck. Earlier this year, I spelled out the legal issues in the Hulk Hogan v. Gawker trial, based on the lawyers’ own briefs.
Now Donald Trump, faced with an onslaught of sexual assault allegations — essentially alleging that he committed the sexually aggressive behavior he bragged about in the 2005 Access Hollywood tape — has started threatening to sue for defamation. Funny coincidence: years ago, I met New York Times Assistant General Counsel David McCraw, who wrote the paper’s response to Trump. He told me the New York Times hasn’t paid a dime on a defamation case in fifty years, and they’re not going to start any time soon. I’m pretty sure that is still true today and will be true for years to come.
When a lawyer writes a letter for public consumption, it looks like Donald’s letter. When a lawyer writes a letter as a prelude to a lawsuit, it looks like Melania’s letter. Donald Trump hasn’t sued a newspaper for libel in thirty years, but Melania did just last month. As I’ll explain below, it looks like Donald Trump is just blowing smoke for show – perhaps he’ll file a lawsuit now then dismiss it after the election – but Melania Trump’s lawyer, the same lawyer who represented Hulk Hogan against Gawker, is using the same strategy he did in that case to position her for a similar outcome. Continue reading
Thirty-one states have passed “Right To Try” legislation that, in theory, makes it easier for patients with terminal diagnoses to use drugs that are in the investigational stage but haven’t yet been approved by the FDA. I use the phrase “in theory” because state legislation doesn’t mean much in the field of drug regulation: it’s all determined by the federal government, which has the power to shut down unapproved uses of medications, even if the state government says otherwise.
The idea behind “Right To Try” state legislation is compelling: from a common-sense perspective, there aren’t many good reasons why terminally ill patients should not be allowed to “try” medicines their doctor believes might help them, even if the medicine isn’t yet approved. After all, many of the approved medicines for terminally ill conditions aren’t that useful. For example, most pharmaceutical cancer treatments have been approved on the basis of “surrogate markers” (like reduced tumor growth rates) instead of being actually shown to improve mortality.
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 systems, all of which often claim that verdicts for plaintiffs come more from sympathy than from a dispassionate review of the facts. I personally disagree — every day in America, “sympathetic” plaintiffs lose their cases — but that’s an argument for another time. Today’s post is about when a corporate defendant tries to play on the jury’s sympathy. Continue reading
Here’s the punchline: if you play Pokémon GO, then, within thirty (30) days of downloading it, you need to send an email to email@example.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. Continue reading
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.) Continue reading
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
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. Continue reading
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: Continue reading
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? Continue reading
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: Continue reading