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. 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: 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? 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: 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. 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: 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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Statistical Significance Has No Place In A Daubert Analysis

Back in July 2014, I wrote a post about the misuse of “statistical significance” by defendants and courts trying to apply the Daubert standard to scientific evidence. As I wrote,

It’s true that researchers typically use statistical formulas to calculate a “95% confidence interval” — or, as they say in the jargon of statistics, “p < 0.05” — but this isn’t really a scientifically-derived standard. There’s no natural law or empirical evidence which tells us that “95%” is the right number to pick to call something “statistically significant.” The number “1 in 20” was pulled out of thin air decades ago by the statistician and biologist Ronald Fisher as part of his “combined probability test.” Fisher was a brilliant scientist, but he was also a eugenicist and an inveterate pipe-smoker who refused to believe that smoking causes cancer. Never underestimate the human factor in the practice of statistics and epidemiology.

(Links omitted; they’re still in the original post.) As expected, defense lawyers criticized my post.

Last week, the American Statistical Association published its very first “policy statement” on “a specific matter of statistical practice,” making clear that tossing around the term “statistical significance” is a “considerable distortion of the scientific process:”

Practices that reduce data analysis or scientific inference to mechanical “bright-line” rules (such as “p < 0.05”) for justifying scientific claims or conclusions can lead to erroneous beliefs and poor decision-making. A conclusion does not immediately become “true” on one side of the divide and “false” on the other. Researchers should bring many contextual factors into play to derive scientific inferences, including the design of a study, the quality of the measurements, the external evidence for the phenomenon under study, and the validity of assumptions that underlie the data analysis. Pragmatic considerations often require binary, “yes-no” decisions, but this does not mean that p-values alone can ensure that a decision is correct or incorrect. The widespread use of “statistical significance” (generally interpreted as “p ≤ 0.05”) as a license for making a claim of a scientific finding (or implied truth) leads to considerable distortion of the scientific process.

Hallelujah! Continue reading

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“Pharmaceuticals: FDA Approved Warning Labels and Pre-emption”

At the invitation of the George Mason University’s Law & Economics Center, I recently went to Washington D.C. to debate Ana Reyes of Williams & Connolly on the subject of preemption in drug injury lawsuits. The video is available here.

I stated many facts during the discussion, and below are my sources for them. Continue reading

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