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 AnonFiles.com, 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 AnonFiles.com 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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The Pennsylvania Superior Court’s Bizarre One-Judge Precedential Opinion

Last week, the Pennsylvania Superior Court released a new precedential opinion in a rollover case, Parr v. Ford Motor Company, 2014 PA Super 8. Initially, I was going to write about the merits of the decision itself, but when I went to look for which judges had voted for which side, I saw something disturbing: of the three judges on the panel, one had to retire before the decision was issued, and the remaining two judges disagreed on three dispositive issues. Thus, the ‘majority’ opinion — which may or may not be the law of the law in Pennsylvania now — is actually just one side of a split two-judge panel. There’s no meaningful difference between the ‘majority’ and ‘dissent’ opinion (neither commanded a majority), yet one of them has been designated a precedential opinion of the Superior Court. The circumstances underlying this “precedential” case raise questions about how practitioners and judges should treat it.

 

By way of background (Pennsylvania practitioners can skip this paragraph and the next three after it), when civil cases are appealed in Pennsylvania, they are first sent to the Superior Court. (Except for cases involving the Commonwealth, which go to the Commonwealth Court.) There are thirteen Superior Court Judges and four Senior Judges, but they hear and decide cases as three-judge panels. The three judges hearing the case take a vote, the majority wins, then one of the judges in the majority writes the opinion for “the Court.” If there is a dissent, they write an opinion about what they would have done instead.

 

A party that has lost in front of a three-judge panel has two options: they can ask the whole Superior Court to hear the case en banc, or they can ask the Pennsylvania Supreme Court to hear it. Parties don’t have a right to either, and both are rare. Typically, a three-judge Superior Court decision is the end of the road for civil litigants.

 

That three-judge majority opinion is, by default, “non-precedential,” sometimes also called “unpublished” or “memorandum.” Leaving the decision “unpublished” is a statement by the Superior Court that it does not want future trial courts (or future Superior Court panels) to put too much weight into their opinion, because it was written for the parties in the case, and was not written with an eye towards guiding the law in future cases. We could have a long academic discussion about the wisdom of allowing “non-precedential” decisions in the first place (see this article for more), but, regardless, the designation has a significant practical impact in Pennsylvania: lawyers typically cannot cite to “non-precedential” in support of opinions their arguments. See Superior Court Rule 65.37 (“An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding…). Even if party cites it, courts tend to ignore “non-precedential” opinions, because they know the court wrote that opinion did not feel strong enough to mark it “published.”

 

In contrast, “published” opinions by the Superior Court, even if just by a three-judge panel, become the law of the land in Pennsylvania. “Publication” is a statement by the Superior Court that trial courts are supposed to follow the decision from now on, and that future Superior Court panels are supposed to treat it as stare decisis. An “unpublished” decision is not much of a big deal, because it affects only the parties. A “published” decision, however, makes new law.

 

Now, let’s talk about Parr v. Ford. Without getting too deep into the details (if you want to do that, I wrote a separate post on our Firm’s blog), the Parr family was in an accident in their 2001 Ford Excursion, which rolled over and crushed on top of them, and two of the Parr children were seriously injured. The plaintiffs sued Ford, alleging the 2001 Excursion was defectively designed. When the case went to trial, the trial court made several evidentiary ruling in favor of Ford and against the plaintiffs, and the jury sided with Ford. The plaintiffs appealed, arguing that the trial court was wrong on four main issues, and that each one of those issues should warrant a new trial.

 

With all that background out of the way, let us talk about the problem. The appeal was assigned to a three-judge panel. Before the decision was reached, however, one of the judges retired. (I’m assuming he ran into the mandatory retirement age of 70; a bump up to 75 is in the works, but it requires amending the Pennsylvania Constitution.) That left just two judges deciding the case. Continue reading

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Why The NFL Concussion Settlement Wasn’t Approved – And Why It Might Never Be

UPDATE, July 22, 2014. I wrote the below post a little over six months ago. As predicted, the BAP Fund problem was easily solved by removing the cap entirely. Also as predicted, the releases of third-parties were dropped. Judge Brody then approved the settlement, but it’s not over yet, for the big reason I mentioned: it really doesn’t make sense to certify this case as a class action for settlement purposes. Several objectors just filed a petition to the Third Circuit arguing the class is “doomed.”

 

Yesterday, Judge Anita Brody of the Eastern District of Pennsylvania, who oversees the consolidated NFL concussion litigation, issued an order denying preliminary approval to the $760 million (not including class action or MDL attorney’s fees) settlement reached last fall and detailed in a filing earlier this month. The settlement had already raised complaints that it was inadequate. Although the awards ranged up to $5 million (e.g., for a player who played for five years or more and was then diagnosed with ALS before age 45), it seemed that the bulk of the awards would be much lower (e.g., under $600,000 for long-time NFL players diagnosed with moderate dementia after age 60).

 

But that wasn’t why Judge Brody denied preliminary approval. The primary issue identified by Judge Brody is not, to me, a very big deal: based on the size of the award fund, she wrote, it seems possible that “not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid.” Given the sizes of the awards and the number of potentially qualifying plaintiffs, “it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels.” Although the retired federal judge who mediated the settlement (Judge Layn Phillips) said that there were a variety of economic and actuarial analyses showing the adequacy of the fund, none of that was presented to the court, and so Judge Brody did not have enough of a record to preliminarily approve the settlement.

 

That’s a simple, obvious problem. It should be easy enough to fix: unless Judge Phillips did a sloppy job — which I highly doubt — then the production of these analyses, and then maybe some comparatively modest adjustments to the fund, should cure that issue.

 

But a footnote on page 10 raises a bigger problem: “I have additional concerns including, but not limited to, the adequacy of the BAP Fund and the release of the NCAA and other amateur football organizations. These concerns will also have to be addressed.”  Continue reading

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Congress Slips In A Stealth Medicare/Medicaid Lawsuit Tax

Otto von Bismarck is credited with the saying, “Law and sausage are two things you do not want to see being made.” This might be unfair to current artisanal dry-cured meat producers, but it is still quite the case with Congress. Last month, without a word of debate, Congress tucked into the Bipartisan Budget Act of 2013 a change in Medicaid subrogation law that will deny millions of injured victims their fair compensation and will make it harder for defendants and insurers to settle cases. It’s a de facto tax on any Medicare/Medicaid recipient who brings a tort lawsuit, which is quite a surprise given that, at the time, it was said the Act “includes no new taxes, and does not make any changes to entitlement programs.”

 

Some background is in order. For years, the companies that profit most from needlessly endangering consumers have tried to create the impression of a “jackpot justice” system,   in which trial lawyers file claims regardless of the defendant’s responsibility or the plaintiff’s damages, and are awarded large sums of money at random, which they pocket.

 

It’s a lurid image, one that lines up with the interests of the U.S. Chamber of Commerce’s membership, but it’s never been remotely true. The vast majority of injury litigation is routine and not genuinely open to much criticism: a defendant did something we all agree is unreasonable and unsafe (like running a stoplight) and hurt a plaintiff, the plaintiff received medical treatment and spent some time off from work, and now the plaintiff is bringing the claim to deal with those expenses and the lost wages.

 

Most injury lawsuits shouldn’t be that much work, but because of insurance companies’ “three D” strategy — delay, deny, defend — the cases end up being a lot of work. It can easily take more than 100 hours of attorney time to prove a simple red light car accident case with typical economic damages, like medical expenses.

 

And that’s where Medicaid and the recent changes come in. Whether the plaintiff is privately insured, part of an ERISA plan, a Medicare/Medicaid beneficiary, or was uninsured, someone is going to come looking for reimbursement from the plaintiff’s lawsuit for the medical care the plaintiff received. These “liens” have long been a challenge to plaintiffs and their lawyers, and the situation has become much, much worse in the past few years.  Continue reading

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Medicine Is Not An Exact Science (Countering A Defensive Medicine Myth)

 

As I’ve argued on this blog before, “defensive medicine” — i.e., the claim that doctors routinely order useless medical tests and procedures solely to prevent the appearance of malpractice — is a myth. By and large, if a test or procedure won’t help prevent the patient from developing a serious complication, then it won’t help the doctor avoid a lawsuit if something goes wrong. Conversely, if a test or procedure would have helped the patient avoid a serious injury or complication, then, typically, the standard of medical care required the test or procedure anyway. Tort liability arises only when a doctor fails to do what a reasonable doctor would do and that failure causes the patient harm.

 

As I detailed again back in August, states that enacted draconian “tort reform” laws — which made it impossible for injured patients to pursue all but the most egregious cases of malpractice involving millions of dollars in damages — have not seen any reductions in their health care costs. Tort law and malpractice lawsuits simply don’t have much of an effect on health care and health care spending in the United States. That’s not surprising, considering that malpractice payments comprise a mere one-tenth of 1 percent (0.11 percent) of national health care costs. Plenty of unnecessary medical procedures are performed every day, but the motive for them is the obvious one: to make money.

 

However, the myth of defensive medicine just won’t go away, and on Christmas Day, a doctor under the pseudonym “Skeptical Scalpel, MD” posted that “defensive medicine is ubiquitous and not going to go away soon. Health care costs will continue to rise.” He recommends “a massive culture shift” among doctors and patients.

 

It’s unclear what kind of culture shift Dr. Scalpel has in mind, but the three examples of “defensive medicine” he gives suggest he wants doctors to scrap the differential diagnosis (the process of elimination that forms the backbone of clinical medicine) and stop reaching out to colleagues for advice on complicated cases.

 

Here’s his first example:

 

A young man with chest pain arrives in the ED. After taking a history and examining the patient, the ED MD is 99.99% certain that the patient did not have a heart attack or a pulmonary embolism. But he’s a little short of breath. He remembers a case of a fatal PE with only minimal shortness of breath, orders a blood gas and CT angiogram of the chest.

 

Any physician who is “99.99% certain” that patient did not suffer a heart attack is unfit to practice medicine. A patient history and physical examination will never give any physician enough information to be “99.99%” or 98.78% or 73.64% or 22.13% or 00.01% certain of anything. Clinical medicine doesn’t work that way. A doctor in that circumstance might reasonably be “pretty sure” or “confident” that the patient isn’t having a serious, urgent medical condition, but to ascribe any specific probability to it — much less a probability (“99.99%”) that is an incredible 3.89 standard deviations from the mean, with an equally surprising zero confidence interval — means that the doctor has utterly failed to understand the limits of a clinical medicine, and has wrongly presumed a level of mathematical precision to their analysis.  Continue reading

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The Florida Bar Sued For Prohibiting Lawyers From Having Opinions

When I saw it, I had to double-check to see if it was a joke. The report said the Florida Bar  precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” If that was the rule everywhere, then the ABA Journal’s list of top blawgs would be very dull indeed.

 

Could that report about the Florida Bar possibly be true? Two centuries ago Thomas Jefferson said “banking establishments are more dangerous than standing armies.” Less than a month ago Pope Francis decried how today “Human beings are themselves considered consumer goods to be used and then discarded.” But the lawyers who take on the banking establishments and hold corporations accountable for treating people like disposable goods can’t say the same?

 

Turns out the Florida Bar really did tell Searcy Denney Scarola Barnhart & Shipley PA that their blog violated that Bar’s most recent restrictions on attorney advertising because those statements of opinion were not “objectively verifiable.” Quite understandably, the firm has filed a First Amendment challenge to the restriction (complaint here).  Continue reading

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