The Supreme Court’s Results-Oriented Summary Judgment Precedent

Civil procedure in the federal courts has changed dramatically over the past few years, primarily through the Supreme Court’s manipulation of doctrine to encourage lower courts to dismiss tort, class action, antitrust, and civil rights cases. As I wrote a year ago in a guest post at TortsProf:

 

[A]s the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying to decide. If a primary concern about tort litigation is that it is unpredictable — as is often stated by tort reformers — then everyone should be concerned when judges decide for themselves the dispositive facts of cases.

 

In early May of this year, Professor Suja Thomas had published an article in Judicature explaining how the summary judgment standard had “become a proxy for a judge’s own view of the evidence.” In one of her examples, she compared the majority and dissent opinions in Scott v. Harris, 127 S. Ct. 1769 (2007), a civil rights case involving a police chase, and just how far the majority had to leap to enter summary judgment for the defendant, preventing the plaintiff from ever presenting his case to a jury.

 

Then, on May 5, 2014, came Tolan v. Cotton, a civil rights case with depressingly common facts: with slim-to-none probable cause, a police officer instigated a confrontation with homeowners and ended up shooting a family member, permanently injuring him. There, all nine members of the Supreme Court agreed that the underlying court had dismissed the case based on their own view of the evidence, and so reversed the entry of summary judgment:  Continue reading

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Tom Goldstein (“The Hustler”) and Atticus Finch

The most sacrosanct tenet of American law is enshrined on the facade of the Supreme Court: “Equal Justice Under Law.” The aspiration is ancient; the phrase comes from Pericles’ funeral oration. My favorite rendition of the concept as applied in American law is in To Kill A Mockingbird:

 

But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution gentlemen, is a court. It can be the Supreme Court of the United States or the humblest JP court in the land, or this honourable court which you serve. Our courts have their faults as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.

 

Apart from the obvious examples (e.g., the Equal Protection Clause), the law promotes equal justice in a variety of ways, including by preventing lawyers from arguing to a jury that a party’s wealth or poverty either absolves or indicts them. It may be true, as a practical matter, that a wealthier party can sometimes use their superior resources to thwart equal justice — or, at least, delay it — but lawyers all agree, or at they’re expected to say they agree, that any injustice is a shame on the legal system.

 

With that context, let’s talk about “The Hustler,” which was The New Republic’s name for Tom Goldstein, founder of SCOTUSBlog and name partner at Goldstein & Howe, which is self-described as “an appellate boutique focusing on representation before the United States Supreme Court.” He’s made a living off of arguing consumers can’t sue natural gas companies for manipulating prices, or that cities should be able to shut of residents’ water because their landlord didn’t pay the bill, or that it’s unconstitutional for West Virginia to tax coal companies for the coal pulled out of their mountains, or that drug companies have a right to use patient data to lean on doctors who don’t prescribe their medications enough.

 

These days, Goldstein is representing multi-millionaire poker player and stuntman Dan Bilzerian, who received a demand letter from Janice Griffith related to an accident that occurred after she apparently agreed to be thrown off a roof into a pool last month as part of a photoshoot for Hustler magazine. Here’s a video of the incident. She didn’t make it all the way to the pool, and broke her foot.  Continue reading

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Judge Cote And The Pre-Trial Preview In The Apple–Amazon e-Books Case

Vanity Fair has a profile of Federal Judge Denise Cote (of the Southern District of New York) that revolves around her involvement in the Apple–Amazon e-books antitrust brouhaha. The article is helpfully titled “The Judge That Apple Hates” for anyone who didn’t know how the case turned out.

 

I wrote about that case when the Department of Justice first filed it, voicing my support for the DOJ’s claims. Whatever one thinks of Amazon’s impact on the book publishing world, it’s hard to dispute that Apple and the publishers entered into a collusive agreement for the purpose of raising prices — the primary evil our antitrust laws are designed to prevent. In the end, all the book publishers settled, and the DOJ went to trial against Apple alone. Judge Cote ruled in favor of the DOJ, and the case is now on appeal.

 

Vanity Fair’s description of the opening statements at the trial caught my eye:

 

Only 10 days [before trial] Cote … had shared a “tentative view” on the merits of the case with the lawyers, just as she had done in many other cases and as she said she would do here if both sides consented. Stressing it was tentative—as she noted, she had only reviewed the court papers and had yet to hear the testimony and arguments—she said she believed the government would be able to prove that Apple “knowingly participated in and facilitated a conspiracy to raise prices of e-books.”

 

So now, playing a clearly losing hand in Cote’s courtroom, [Apple’s lawyer Orin] Snyder chose to meet Cote head-on—and challenge her fairness. To a judge who prides herself on her scrupulousness, it was a declaration of war. “No party, big or small, whether the biggest company in the world or an individual defendant, should start trial with the deck stacked against it,” he pleaded. “So we respectfully and humbly ask this Court to erase, hit the delete button on any tentative view that might exist in the Court’s mind today.”

 

Has corporate America and its lawyers become so accustomed to winning in the courts, so self-assured by judicial recognition of their “right” to manipulate elections and to quash consumer lawsuits with arbitration agreements and insurmountable legal standards, that one of the most profitable and valuable corporations in the world feels ‘the deck is stacked against it’ if a judge fails to give their self-serving assertions a round of applause?  Continue reading

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ACOG Improves Its Guidelines On Brain Injury At Birth (A Little)

For lawyers who represent birth malpractice victims, few phrases conjure up as much ire and frustration as “the ACOG report,” the shorthand for a 2003 document put out by the American College of Obstetricians and Gynecologists (“ACOG”) called “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis.” Despite its title, the report made no effort to explain how a doctor could determine the cause of a particular child’s cerebral palsy, and it made no effort to explain how the incident of neonatal encephalopathy (i.e., newborn brain damage) could be reduced. (Bob Schuster has a little more on its origins, and MedScape has a summary of it.)

 

Rather, the sole purpose of the report was to prevent children with cerebral palsy caused by labor and delivery malpractice from obtaining compensation, which it accomplished by giving a cover to insurance company’s efforts to confuse judges and juries into believing that babies could survive hours without adequate oxygen and suffer no consequences. The report established core four “essential” criteria, and five “suggestive” criteria that, ACOG claimed, had to be met before a child’s cerebral palsy could be linked to hypoxia at birth.

 

Sure, in the “Task Force on Neonatal Encephalopathy and Cerebral Palsy,” ACOG dressed up their preordained conclusions in scientific and medical jargon and gave passing nods to basic principles of honest medical research, but the report was worthless from a medical standpoint. It wasn’t a real compilation of medical information, like a Cochrane Review or UpToDate, and it didn’t give any recommendations on how to diagnose or treat patients.

 

Instead, the report was used constantly in birth injury litigation by paid experts testifying on behalf of obstetricians and hospitals sued for ignoring the signs and symptoms of fetal distress and failing to treat fetal hypoxia. If you brought a hypoxia birth injury claim anywhere in the United States after 2003, you could be assured that the ACOG report would be front and center in the defense, with the veneer of “scientific” and “medical” proof.

 

ACOG wasn’t responsible for coming up with most of the “essential” and “suggestive” criteria, but instead cut-and-pasted them from the International Cerebral Palsy Task Force’s 1999 “template for defining a causal relation between acute intrapartum events and cerebral palsy,” available here. You can see a comparison of the ACOG and International guidelines on table 3 of this article.

 

The International Task Force’s criteria was suspiciously strict to begin with, like with their criteria for blood pH and Apgar scores.  Continue reading

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery

“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989).

 

The First Judicial District of Pennsylvania, better known as Philadelphia state court, is one of the most efficient high-volume civil justice court systems in the country. Part of this success owes to the “Day Forward” program implemented years ago, which years ago began pooling together all the cases of a given year together for management by a single judge, particularly when it comes to discovery disputes. (Years later, in 2009, the American College of Trial Lawyers began recommending “A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.”)

 

To avoid an endless hell of discovery-related oral arguments, the “team leader” judges schedule one day each week to batch together all of their discovery motions for that week. By the time 9am rolls around, the bulk of motions end up either abandoned, withdrawn, or entered by agreement, after which the contested motions are heard one after the other. Litigators love to complain about discovery court, because sitting through even 15 minutes of someone else’s oral argument when you’re ready for yours can feel like spending a day in a traffic jam, but I tend to sit back and listen, to see what works and doesn’t work for the lawyers, and to see the judge’s general approach to the discrete issues presented.

 

Last week, I listened to a dozen or so motions, and virtually all of them involved a party unreasonably objecting to discovery. Continue reading

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The Professor And The Grad Student (A Civil Litigation Story)

Yesterday afternoon’s “Breaking News” alert from The Legal Intelligencer was certainly intriguing:

Suit Sparked by Prof’s Affair With Student Survives

A former University of Pittsburgh professor who engaged in an affair with a research assistant can continue with his defamation case against the assistant over claims she affected his ability to get another teaching job and sent a picture of his penis to his wife and 37 associates.

I can’t say that I’m particularly interested in university gossip, but this headline piqued my interest in the relationship between the civil justice system and university life — see, e.g., my posts on the scandalous efforts by fraternities to avoid lawsuits, on the misguided doctrine of “academic abstention,” and on universities trying to avoid anti-discrimination law — and I’ve represented both plaintiffs and defendants in lawsuits arising from tortious conduct at universities.Thus, after reading the story in the Legal, I had to pull the Western District of Pennsylvania’s Order and the Complaint in Wang v. Lee.

 

In many ways, a close inspection of the case makes it less interesting than it seems it would be. There are a variety of salacious allegations, and one party’s oddly specific wish to be reborn as a mermaid, but those details are mere gossip in a situation that seems to have had rather severe consequences personally and professionally for all involved. The court’s opinion denying summary judgment — thus allowing the professor’s defamation lawsuit against the grad student to go forward– is rather humdrum from a legal perspective; most of the claims are plainly sound if the facts alleged are proven, like Invasion of Privacy (largely for the picture), Wrongful Use of Civil Proceedings (for filing an allegedly frivolous protection from abuse petition in Washington State), and Defamation (for suggesting in the email that the professor was threatening her). I have my doubts about the viability of a negligence claim in the midst of a romantic disputes, but that’s an issue for another day.

 

Nonetheless, two issues jumped out at me.  Continue reading

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Asphalt Playgrounds Will Not Save The Next Generation

 

As Sarah Miller recently lampooned over at The New Yorker, parents today are bombarded with “long-form think pieces about parenting” that purport to show how some new studies have finally, after all these years, proven the correct way to raise a child — and how the rest of us have it all wrong. So much for Dr. Spock’s “Trust yourself. You know more than you think you do.”

 

The latest addition to that genre is Hanna Rosin’s “The Overprotected Kid” in The Atlantic, which argues that the next generation is on the path to ruin thanks to, of all things, safe playground equipment. Apparently, common sense improvements like replacing the asphalt on playgrounds with grass or rubber can somehow be connected to “depression, narcissism, and a decline in empathy,” as well as “college-age kids taking psychiatric medication,” and even “a fear of growing up,” culminating in the next generation’s “inability to think for themselves.” (What’s next? “Human sacrifice, dogs and cats living together, mass hysteria!”). The primary solution to this societal collapse, we are told, is “a new kind of playground.”

 

We might as well start our analysis with this “new kind of playground.” The idea of “adventure playgrounds,” which Rosin traces back to Lady Marjory Allen, a British landscape architect from the 1940s (though it’s my understanding she got the idea from C. Th. Sørensen in Denmark), is to “encourage a ‘free and permissive atmosphere’ with as little adult supervision as possible,” which will in turn enable kids to “face what to them seem like ‘really dangerous risks’ and then conquer them alone.” Rosin’s exemplar for a “new kind of playground” is The Land in England (“The Land”), a playground made up of commercial refuse in which children sit on broken chairs, jump on “filthy” mattresses, start trashcan fires, and toss around discarded wooden pallets.

 

In the most general sense, it’s obvious that children need to learn independence and to be responsible for themselves. And surely it’s good for kids to try their hand at designing and building new structures from the tools and materials available. (If you have young kids and lots of cardboard boxes everywhere thanks to Amazon Prime, check out Makedo.)

 

Yet, if the key is to have “as little adult supervision as possible,” then “The Land” quite plainly does not fit the bill: “The park is staffed by professionally trained ‘playworkers,’ who keep a close eye on the kids but don’t intervene all that much. … [A] playworker is always nearby, watching for impending accidents.” I’m glad to hear that, but if we take at face value all of the arguments in “The Overprotected Kid” about the terrible harm inflicted upon children by supervision and safe environments, then The Land is worse than your typical playground, because it fails to let kids actually exercise independence (and actually suffer the consequences) and it creates a false sense of security even in truly dangerous situations.

 

Let’s step back to the core of the supposed problem: what, really, is wrong with safer playgrounds? According to Rosin, playgrounds today are harmful to children’s development because of their absence of needlessly dangerous components like asphalt (something not even found at adventure playgrounds) and exposed openings on climbing structures, a “problem” that stems from — what else? — lawsuits. As Rosin writes: Continue reading

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Bringing Back The Deadly Workplace By Stopping Product Liability Actions

 

From July 1906 through June 1907, five-hundred twenty-six workers died on the job in just Allegheny County, Pennsylvania. Here’s the “death calendar,” noting the deaths per day for the holiday months of November 1906 and December 1906:

workplace injury death calendar

(This chart and the next come from the CDC’s Improvements in Workplace Safety — United States, 1900–1999.)

 

A substantial risk of death was simply a fact of any sort of industrial work with heavy machinery in the Gilded Age. In 1913, there were approximately 23,000 industrial deaths, for a rate of 61 deaths per 100,000 workers. To put that in perspective, the current death rates due to all accidents is 38.0 per 100,000, and the rate due to suicides is 12.1 per 100,000. Thus, the risk of dying on the job a century ago was higher than the combined risk of dying in any sort of accident or by suicide today.

 

Workplace deaths were so common that they even drove art and literature. It’s been largely forgotten in our time, but Christ in Concrete, about an Italian-American community’s struggles during the Roaring Twenties in the face of multiple fatal and catastrophic construction accidents, was published the same year as Grapes of Wrath, to similar praise. The author’s father, a construction worker, was killed on the job on Good Friday in 1923, when the author was 12. In the book, as was common at the time, the nominal presence of workers compensation is of no help, as the construction company blames the workers and the company’s insurer disclaims coverage.

 

The current rate of occupational fatalities is about 4 per 100,000 — a drop of over 90%. There are of course a wide variety of causes for the decrease, including some totally unrelated to industrial work (like, as the CDC notes, “societywide progress in injury control,” such as “use of safety belts and other safety features in motor vehicles and improvements in medical care for trauma victims”), but one big reason can’t be ignored: money. After decades of efforts by workers’ rights activists, Wisconsin was the first state to pass a first mandatory workers compensation law in 1911, and Mississippi was the last, in 1948. Employers weren’t too interested in safe workplaces until they were on the hook for the workers’ wages if they were hurt.

 

But employers weren’t the only ones who needed to have an incentive to care about safety. No one is in a better position to make a complex piece of machine safer than the machine’s manufacturer, and the rise of product liability law — particularly ‘strict liability’ — in the 1960s gave injured workers a way to go beyond the modest benefits of workers compensation to obtain recoveries closer to their true damages. (If the workers succeeded in their product liability claims, they would then have to pay back the workers compensation, through a process known as “subrogation.” Keep that in mind, it becomes important in a minute.) Continue reading

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Finding Happiness As A Lawyer

A year ago, CareerBliss reviewed 65,000 employee-generated reviews and concluded that the “least happy job” in the country was “associate attorney.” A couple naysayers jumped in this as proof that the younger generations of lawyers are entitled complainers, but, truth is, if you ask enough lawyers of any age how they feel about their jobs, the description of life in the law begins to sound like Nabokov’s translation of the Russian word toska:

 

“At its deepest and most painful, it is a sensation of great spiritual anguish, often without any specific cause. At less morbid levels it is a dull ache of the soul, a longing with nothing to long for, a sick pining, a vague restlessness, mental throes, yearning. In particular cases it may be the desire for somebody of something specific, nostalgia, love-sickness. At the lowest level it grades into ennui, boredom.”

 

The close relationship between misery and the law isn’t anything new. Consider the law review article from fifteen years ago, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 VAND. L. REV. 871, 874 (1999), written by Patrick J. Schiltz, who is now a federal judge. It’s such a good read, and still so relevant, that it seems to vanish from every location it has been posted in the past; the best I could find was this abridged and unformatted version, and this scan of a printout of an online article that Schiltz published a year later, summarizing many of his arguments. Continue reading

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Defeating The Medical Records Paper Copy Scam

Hardly a day goes by without a letter from my office either requesting medical records or paying for them. Some days, I sign more than a dozen. It’s perhaps the most common thread among all my cases: the vast majority of my clients have been physically injured in one way or another, and at a bare minimum, I need the records from their doctors and hospitals to show the diagnoses they have and the treatment they have received.

 

Every patient has a right to receive their medical records, and by law should be able to obtain those records promptly at no markup, with no padded fees, and no unnecessary charges from the hospital or the records company. But if there’s money to be made, someone will try to make it, and over the past decade a whole cottage industry has developed around the “business” of trying to cheat patients trying to get their medical records. Sometimes health care providers outsource this “business” to third-party companies, and sometimes the hospitals and health systems play the con game themselves.

 

Federal law is quite clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care provider is allowed to bill “only the cost of … [c]opying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the the Health Information Technology for Economic and Clinical Health Act (HITECH Act).

 

Simple, right? If a hospital wanted to do the right thing, then whenever a patient requested records, the hospital would send them a CD in the mail and a modest bill, one that would typically be under $50 and would never exceed $100. But there’s no money to be made in charging “only the cost” of copying electronic records to a CD, so a number of these entities have a policy that, if a patient requests their records, then the hospital bills the maximum it possibly could. Continue reading

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