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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Philly Runners: Runny Nose 5k in Abington, PA on March 23


Let’s go off topic from the law and get local for a second: if you live near the Philadelphia area, and you’re into fitness or running, come out to the 4th Annual Runny Nose 5k Run and 1 Mile Walk on the morning of March 23, 2014, at Lorimer Park in Abington. All proceeds go to fund fitness, sign language, and music programs at a local preschool. [Update: pre-registration is now closed, but walk-ups are welcome. Here's a copy of the registration, or just show up after 7:30am, race starts 8:30am.] The Beasley Firm and this blog are both among the sponsors of the race.


It’s a beautiful cross-country race through a scenic park, designed by a track coach (and recovering lawyer) who regularly races, and professionally timed by Pretzel City Sports. Here’s what someone who ran it last year said:


I’d highly recommend this race as it was small, beautiful, and quite a lot of fun. I didn’t know until I got there this morning that it was a trail race. I’ve only ever done road races up until today, and I was a bit nervous. There were some pretty major hills and dips, but it all evened out. And it was such a beautiful course!


Exactly! I’ve run the course myself (and shockingly, I actually received an award in my age group!). Serious runners say it’s more interesting than most runs. Casual runners say it’s just the right kind of a challenge, and the “I work out sometimes” folks are thrilled to complete it. The event draws enough participants that nobody feels like there’s attention on them specifically, but not so many that the course feels crowded. It starts with a flat stretch that allows the runners to spread out before they hit the cross-country part.


Runners get a shirt (while supplies last, but if you pre-register by March 12th, you can get one for sure) and a goody bag with the sorts of stuff that typically comes in runners’ bags.


I know what you’re thinking: “Philadelphia has been a frozen tundra for months now, how do you know it won’t be zero degrees with a foot of snow on March 23?” Point taken, but says, “The [Pacific North Atlantic teleconnection pattern] PNA looks to go negative around St Patrick’s Day, the 17th, with more consistent periods of milder temperatures to follow and the polar vortex on the retreat. Right now, late March is looking much more tame and hopefully will go out like a lamb.” Sure, it’s John Bolaris, but this is Philly — we’re all about second-chances.


It’s probably closer than you think; here’s Lorimer Park on Google Maps, in Southern Montgomery County, near both Northeast Philadelphia and Lower Bucks County. 30 minutes even from Center City Philadelphia or from Conshohocken. Easy.


On March 23rd at Lorimer Park, registration starts at 7:30 am, the 5K starts promptly at 8:30 am, and the awards and will happen around 9:30 am.


[Edit, March 20. Two pictures from today, unretouched. We cleared the course of all the big branches and the like.]


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The Fraternity Mindset: Why Be Responsible When You Can Dodge Responsibility?

Caitlin Flanagan’s “The Dark Power of Fraternities” at The Atlantic, an exposé of the “endemic, lurid, and sometimes tragic problems” that plague fraternities and how they avoid liability, is a fascinating and essential read. It’s one of the most thorough reports in recent memory of how powerful, wealthy interests insulate themselves from accountability for the harm they cause to individuals.


Before we get to the substance, the manner of Flanagan’s reporting deserves special mention. Rarely do press reports about the civil justice system give it this type of realistic, balanced treatment. Most reports treat the civil justice system as a spectacle that sometimes involves large sums of money, like a television game show, with trial lawyers filing lawsuits at random, corporate defendants who always acted in good faith paying to avoid jackpot justice, and a jury making up an answer based on junk science and sympathy. Surely we can’t take anything from the civil justice system seriously to inform our views on important issues of the day.*


Flanagan, however, appropriately portrays the civil justice system as the way our society determines responsibility for harms. It’s often the best way – sometimes the only way – to discover systemic threats to people’s safety. Civil liability is also typically the primary incentive corporations, associations, and vested interests have to reduce the risk of harm to others.


What Flanagan found when she looked at lawsuits brought by undergraduates for injuries while at school should cause any parent and future college student to think twice about the true meaning of campus safety:  Continue reading

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Why The Transvaginal Mesh Litigation Won’t Become A “Black Hole” Like Asbestos

The transvaginal mesh litigation has for some time been the largest medical mass tort ever, at least as measured by filings in the federal multi-district litigation (MDL), which is currently being handled in the Southern District of West Virginia. There are over 42,000 cases in the MDL — more than the combined total of cases ever filed in the Prempro MDL (9,761), the Yasmin and Yaz MDL (11,423), the Vioxx MDL (10,319), and the DePuy ASR Hip Implant MDL (8,900). (See this chart under “Total Actions.”) Add to that the over 6,000 mesh cases pending in New Jersey state court, and numerous cases filed in other state courts, and there are nearly 50,000 transvaginal mesh claims pending in courts across the country against six different manufacturers.


So what are the courts supposed to do with that many cases?


There’s no shortage of inventive (and often problematic) suggestions for how to resolve mass torts cases, ranging from ‘offensive collateral estoppel’ to ‘statistical sampling of verdicts.’ (Naturally, defense-oriented interests are quite fond of coming up with “solutions” that are merely veiled ways either to drag the litigation on forever or to put insurmountable pre-trial barriers in front of plaintiffs.) But the only tried-and-true method is the one I mentioned a year and a half ago in “How Judges Can Settle Mass Torts Cases:” “defendants and their insurance companies don’t willingly make reasonable settlement offers. The only thing that brings them to the table is the immediate threat of trial. If judges want to resolve these cases, they need to move them along to trial.”


But when you’re talking about 50,000 medical device cases, that’s easier said than done. The federal courts conduct fewer than 3,500 civil trials each year.


So where can we look for guidance? The closest analogy to the transvaginal mesh litigation is the Diet Drugs litigation, which had roughly 20,000 claims filed in the federal MDL and about 12,000 filed in Philadelphia’s Complex Litigation Center, making it about three-fifths the size of the transvaginal mesh litigation. But some of the lessons learned there might not help us here, because that litigation was comparatively less complicated: the litigation was against a single company (Wyeth), and it involved products that the company had at least implicitly admitted were defective by way of withdrawing them from the market. In the transvaginal mesh lawsuits, however, there are four different major defendants — Ethicon, C.R. Bard, Boston Scientific, and American Medical Systems each have thousands of cases filed against them — and, not only do the defendants adamantly maintain that their products are perfectly fine, but many of the products are still on the market. There’s thus a potential, perhaps even a likelihood, for this litigation to grow endlessly as only a handful of claims are resolved each year while hundreds, potentially thousands, of new claims accumulate each year.


That scenario raises the question: is the transvaginal mesh litigation headed towards the same “black hole” in which the over 180,000 cases in the asbestos MDL sat for nearly thirty years? If so, how do we get out?  Continue reading

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Is A Lawyer Ever Required To Present An Argument They Don’t Believe?

The 1908 ABA Canons of Professional Ethics required lawyers to pursue their client’s objectives with “warm zeal,” whatever that meant. These days, practicing attorneys and scholars routinely throw around the term “zealous advocacy” to describe a lawyer’s duties to their client, but “zealous advocacy” is not actually required. As Sylvia E. Stevens of the Oregon Bar noted almost a decade ago:


No [ABA Model] rule requires zealous representation. Rather, the emphasis is on competent and diligent representation. The term “zeal” appears in the preamble, both times in reference to litigation, and in the comment to Model Rule 1.3. The rule itself requires that a lawyer act with reasonable diligence and promptness in representing a client. Comment (1) explains that “(a) lawyer must also act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.” That suggestion is at the same time diluted by the next sentence: “A lawyer is not bound, however, to press for every advantage that might be realized for a client.”


The focus of the Rules, then, is on competence, diligence, and communication, not on the degree of “zeal” felt or exercised by the lawyer.


That’s how it should be: one of the essential precepts of the law is the recognition that “reasonable minds can differ” on a wide variety of subjects, including on the most effective way to represent a particular client and whether zeal or caution is warranted in a given situation. The phrase “discretion is the better part of valor” is now commonly used to indicate the wisdom of proceeding with caution, despite it being originally used for comedic effect (as “the better part of valour is discretion,” so “discretion” is the punch line) by a coward.


Truth is, for all the fear that the law will be “commoditized” like fast food, most legal work still involves a skilled professional making a judgment call. If it was something that didn’t require a judgment call, you wouldn’t need or ask a lawyer to do it.


So if lawyers aren’t required to engage in “zealous advocacy,” nor “to press for every advantage that might be realized for a client,” then where is the line drawn between arguments that a lawyer must make (to have performed competently) and arguments that they can make (within the bounds of zealous advocacy)?  Continue reading

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A Doctor’s “Mistake” or “Error in Judgment” Can Still Be Malpractice

In most medical malpractice cases, the default defense is: “medicine is so complex and mysterious that there is no standard by which the doctor can be judged, and thus they cannot be liable.” The lawyers for the doctor or hospital (and their experts) rarely say it outright — because they are worried that jurors and judges will see right through it as a claim that doctors can never be held accountable for anything — but this defense is embedded deeply in most of the arguments they make for the jury. It doesn’t matter if the doctor made an obvious mistake, or if the doctor violated multiple standard guidelines.


Consider this closing argument made by a doctor’s lawyer in the case of Passarello v. Grumbine:


Now every physician must use clinical judgment. You don’t practice medicine by textbook. There’s no guideline that you can go to. You don’t have something on your blackberry well there’s this symptom and this symptom so we’re gonna do this. They have to make decisions. A physician cannot warrant care and they cannot guarantee outcomes because of the uniqueness of treating human beings. To require otherwise, to require physicians to be perfect, is an impossible burden and we—the law recognizes that we will not do that. When you look at [the doctor’s] judgments, were they careless, were they unskilled? When you come to the key issue, the August 2 phone call, she had to use her judgment, and if her judgment was reasonable, then she was not careless and she was not unskilled.


Part of that argument is correct: physicians can’t “guarantee outcomes.” But part of it is terribly misleading: in a medical negligence trial, the question isn’t whether physicians are “perfect,” or “careless,” or “unskilled,” or whether they “use[d] her judgment,” or whether “her judgment was reasonable.” The question is if the physician failed to follow the standard of care demanded of them.


As the Pennsylvania Superior Court concluded, “What counsel’s argument skillfully suggests is that regardless of the objective standard of care, [the doctor], in an exercise of continued self-sacrifice, acted with the best of intentions and made judgments for which she could not be faulted, in part because they were judgments and a physician cannot warrant care.” The defendants’ argument, in turn, played into a jury instruction the judge was giving, which included this language: “Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it’s proven that an error of judgment was the result of negligence.” Continue reading

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Jamie Casino and The Super Bowl Ad: Just Because You Can Doesn’t Mean You Should

Soon after the Super Bowl concluded, I received an email from a college classmate, addressed to me and another attorney from our class: “Did you guys see this Super Bowl ad that ran only in Georgia last night? As attorneys, perhaps it speaks to your own professional pride.” The link was to personal injury attorney Jamie Casino’s two-minute tale of sin and redemption (with a prominent flaming sledgehammer), described variously as “the Most Insanely Epic Super Bowl Ad Last Night” (Slate) and “Ridiculously Badass” (Adweek) and “Batshit Amazing” (Deadspin).


Four points come to mind.


First, the ad was only possible because of Georgia’s sensible rules on attorney marketing. In many states, like Florida, Casino’s ad would have been prohibited by absurd Bar Association rules that go so far as to “prohibit images of an American flag, the Statue of Liberty, and a cactus,” as I discussed back in December. You can see in the comments to my post about Florida’s rules former Georgia Bar President Ken Shigley describing the sensible approach they took, which simply prohibits “false, fraudulent, deceptive or misleading” advertisements, and then requires certain disclaimers.


Second, to all the traditionalists who believe that flashy ads like Casino’s inherently demean the legal profession, I say, to paraphrase Bob Dylan, is there anything more American than advertising? Whatever the ad’s positives and negatives, the ad tells potential clients a lot about Jamie Casino — and that’s a good thing. Lawyers are not wholly interchangeable. The reason that superlatives like “best” and the like are sometimes prohibited in attorney advertising is because they’re meaningless, and Jamie Casino’s ad is anything but meaningless.


However, just because Jamie Casino should be able to make such an ad doesn’t mean that he should actually do it. Continue reading

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Quentin Tarantino Might Win Against Gawker, Thanks To The Supreme Court

Yesterday, Quentin Tarantino filed a copyright infringement lawsuit against Gawker for distributing copies of his script The Hateful Eight. Here’s the original Gawker post, here’s The Hollywood Reporter on the basics (with the complaint), and here’s Gawker’s reply.


The case is simple enough: Gawker encouraged readers to find the script, someone posted it to, someone (perhaps the same person?) emailed a link to Gawker, Gawker posted that link on its website. Tarantino, represented by Martin Singer (whose hyperbolic threats have graced this blog before), alleges direct copyright infringement against because it hosted the files and contributory infringement against Gawker because it “induced, solicited, encouraged, caused or materially contributed to the infringing conduct.”


If you’re not clear what “contributory” infringement is, take heart. The claim doesn’t come from the old common law, like most civil causes of action. The claim also wasn’t created by Congress through a statute; the Copyright Act only covers direct infringement claims against the actual party distributing the copyrighted work. Rather, the Supreme Court took the Copyright Act and then decided to expand it using common law doctrines relating to conspiracy claims and vicarious liability.


It was a rare instance of the Supreme Court interpreting a statute to expand liability than to restrict it. Look at the last 30 years of, say, antitrust or RICO or class action law, and you’ll see an entirely different trend, with the Supreme Court reaching for any justification to rule against the plaintiff and for the defendant. Then again, in those cases, the plaintiff is a consumer and the defendant a large corporation, and in copyright infringement cases, it’s often the opposite. So it goes.


Even the eminent Judge Richard Posner, writing for a unanimous Seventh Circuit panel in 2012, had trouble figuring out what the term meant:  Continue reading

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