Published By: Maxwell S. Kennerly, Esquire

November 2012

On Monday, the ABA Journal released its 6th annual “Blawg 100,” this time including your’s truly’s little home on the Internet. It is, to use the term I used two-and-a-half years ago to describe the benefits of writing a legal blog, “more pie,” and I’m always happy to receive more pie. If you’ve found my blog useful in your practice in the past, or just an interesting read, I’d be much obliged if you stopped over there and voted for me in the “Trial Practice” category. (As an aside, Pennsylvania lawyers cleaned up in the Trial Practice and Torts categories — four honorees combined, more than any other state.)

I’ve been blogging here for over five years, and this is my 880th post. I consider this blog to be a success: I was able to impress my mom, I’ve been invited to speak on panels, I was asked to write a practice guide for lawyers, and a reader once recognized me by my name tag at a party hosted by a law firm. Hundreds of thousands of strangers have read my work, and a couple dozen of them have taken the time to carefully explain to me how wrong I am about everything.

So, as a self-described “successful” blogger, here are some thoughts on blogging itself. 
Continue Reading Doing The Best You Can As A Writer (Thoughts On The ABA Journal’s Blawg 100)

Via Howard Bashman, last week a three-judge panel of the First Circuit Court of Appeals issued a per curiam opinion in Rodriguez-Machado v. Shinseki, affirming a District Court’s grant of summary judgment in an Age Discrimination in Employment Act case. It was a routine case that had been dismissed by the District Court for three commonplace reasons: the plaintiff, who worked at the Veterans Administration, (1) had not been injured enough in their workplace to have suffered an “adverse employment action”; (2) had not shown the hostility she suffered at work rose to the “level of severity or pervasiveness” required to state an ADEA claim; and (3) couldn’t show the adverse employment action she allegedly suffered was in retaliation for her filing a claim with the Equal Employment Opportunity Commission (EEOC).

More than 23,000 age discrimination charges were filed with the EEOC last year (EEOC / ADEA statistics here), and a significant number of those charges go on to be filed as lawsuits. There’s thus no dearth of these cases in the federal courts, which have decided more than one thousand ADEA cases over the past year, hundreds of them on similar grounds as Rodriguez-Machado v. Shinseki. It was, by and large, a routine case dismissed on routine grounds, on appeal for routine reasons, and the First Circuit could have just as easily looked at the District Court’s opinion, the briefs, and then affirmed dismissal of the discrimination claim, as federal appellate courts do every day.

But the First Circuit didn’t even reach the merits of the case. Instead, it blasted the plaintiff’s lawyer:

This case provides an important reminder to lawyers  and  litigants alike:  substantial  noncompliance” with important  appellate  rules,  in  and  of  itself,  constitutes sufficient  cause  to  dismiss  an  appeal. …

Unfortunately, plaintiff’s briefs are textbook examples of how not to litigate a case on appeal, infracting some important procedural rules. Again, claims of age discrimination, retaliation, and hostile work environment are often, as here, factually complicated and legally intricate. Yet plaintiff’s opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute. Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either. Shockingly still, plaintiff’s principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories:  She mentions a few ADEA cases, but only in the context of setting out the accepted summary judgment standard – amazingly, she spends no time describing the legal contours of an ADEA claim. …

To wrap up: Plaintiff’s lackluster way offends some major appellate procedural rules and controlling caselaw. Being human, lawyers of course will not always dot every “i” and cross every “t” in trying to live up to their obligations under the rules. And occasional mistakes – minor infringements of the rules that neither create unfairness to one’s adversary nor impair the court’s ability to comprehend and scrutinize a party’s papers – typically will not warrant Draconian consequences. But major breaches call for severe decrees, and the violations here are certainly major, given that they cripple any attempt to review the issues intelligently.

Consequently, for the reasons batted around above, we dismiss plaintiff’s appeal with prejudice, as the caselaw permits in situations like this.

(Citations and quotations omitted.) And that was that: plaintiff’s case was dismissed, with no effort to review the merits.

Here are the offending briefs from the plaintiff, as well as the defendants’ responsive briefs. The plaintiff’s brief certainly isn’t a model of written argument (and it does, as the defendants pointed out, mistakenly claim an “abuse of discretion” standard for the appeal of a summary judgment, rather than a de novo standard), but did it really “cripple any attempt to review the issues intelligently,” as the First Circuit concluded? The defendant had no trouble comprehending the arguments and responding. Was it really “amazing,” as the First Circuit claimed, that the plaintiff didn’t reiterate “the legal contours of an ADEA claim” when the plaintiff’s brief states right at the onset that they’re not challenging the legal standard used by the District Court, but rather the District Court’s review of the evidence? 
Continue Reading Poor Brief Writing Skills Prompt Dismissal By Appellate Court

Read more about sexual abuse lawsuits.

My children are young enough that Elmo’s voice still carries considerable weight in our home, and so I was disheartened to hear last week’s allegations that Kevin Clash, Elmo’s creator and voice, had a sexual relationship with a teenager. The alleged victim recanted — perhaps in exchange for a settlement, the reports I’ve seen have been unclear — but the issue resurfaced yesterday with the filing of a lawsuit against Kevin Clash in New York by a second alleged victim. The New York Times has a copy of the complaint; the new alleged victim, now 24 years old, claims Clash trolled sex chat lines for teenagers, found the victim, and then engaged in a sexual relationship with him while he was only 15 years old.

I, of course, don’t know if the allegations are true or not, but I do know that the case has a big problem in terms of whether it’s likely to succeed: the statute of limitations in New York has already expired for all of the usual claims alleged in sexual abuse cases. Apparently in recognition of that, his lawyers have not raised any of the typical state tort law sexual abuse claims — for example, assault and intentional infliction of emotional distress — but have instead filed for damages under a federal criminal statute most commonly used for child pornography victims. More on that in a moment.

As I discussed back when Jerry Sandusky was indicted, it is common — and understandable — for childhood sexual abuse victims to only be able to come forward many years after the abuse occurred, and thus often after the statute of limitations has run. In most states, including New York, the statute of limitations for tort claims is “tolled” (i.e., the clock doesn’t start running) until the victim turns 18 years old, but thereafter the victim only has a few years in which to file their civil claim. Few people turn 18 and suddenly come to terms with a traumatic event — the first few years in adulthood often isn’t enough time for a victim to process what has happened, and many victims repress memories about the assaults until their 30s, sometimes even later — and thus many victims never really have a chance to prove their case in court.

New York’s general statute of limitations for personal injury cases is three years, and New York law has not been kind to sexual abuse victims who failed to file a lawsuit within three years of their 18th birthday. In Zumpano v. Quinn, 6 N.Y.3d 666 (2006), former parishioners of two Catholic dioceses claimed they were sexually abused by priests but didn’t file a lawsuit until more than 20 years after they reached adulthood. The New York Court of Appeals ruled that the abuse was sufficient to trigger the statute of limitations for claims against both the priests and the dioceses that employed them, and so the statute ran three years after they turned 18 years old.

That’s the rule in the majority of states: the statute of limitations for childhood sexual abuse cases begins running right when the victim turns 18 years old. There are some exceptions — like the discovery rule, or tolling for fraudulent concealment — but they’re usually quite limited, and they’re often only applicable to the claims against the abuser’s employer. Earlier this year, for example, in the Poly Prep School Abuse case, a federal judge in New York allowed plaintiffs to move forward on their negligence and other claims related to abuse, on the theory that the school had allegedly “fraudulently concealed” their awareness of the abuser’s danger to the children. (Here’s the court order, which is a must-read for anyone interested in statute of limitations issues in sexual abuse cases, and here’s a New York Times story on the order.)

But I don’t see how Clash’s alleged victim could apply any of that court’s reasoning, which rests on the theory that the victim may not have had access to evidence showing the liability of the abuser’s employer, to his case; indeed, it seems his lawyers already concluded that his state tort claims were long gone, and so didn’t even attempt to allege any of the normal claims relating to sexual abuse. Instead, the alleged victim raises one and only one claim: “coercion and enticement to sexual activity in violation of 18 U.S.C. § 2422.”
Continue Reading The Unique Federal Sexual Abuse Claim In The Kevin Clash (Elmo’s Voice) Lawsuit

Last week, I wrote about a commonplace problem in product liability lawsuits: when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves, they inadvertently enable the defendants to engage in discovery fraud by cherry-picking which evidence they produce in each case. A new article by the federal judge (and the special masters he appointed) who oversaw the 9/11 Responders litigation reveals another critical component of a successful and fair resolution of high-stakes litigation: the cases need to move.

The article, Managerial Judging: The 9/11 Responders’ Tort Litigation (via TortsProf), is one-part guidance for future courts in similar situations and one-part a defense of Judge Hellerstein’s unorthodox methods in the case, which included his rejection of the initial proposed settlement — an exercise of judicial power that, while common in class actions, is unheard of in individual personal injury cases. (Judge Hellerstein himself notes in the article that his power was disputed, and says, “if I was right in asserting supervisory control of the litigation and rejecting the initial settlement, then those powers should be clearly set forth” by future statutes and rules.)

On the one hand, the 9/11 Responders litigation was indeed “unprecedented,” but, then again, so are most mass torts. Pharmaceutical liability mass torts are somewhat routine these days, but, for example, the consolidated asbestos litigation presented many of the same problems of scientific causation and varied individual exposure as the 9/11 Responders cases. Each case presents new and unique challenges.

In many ways, the most unique aspect of the 9/11 First Responders was the defendants’ interest in settling — the biggest defendant was the “Captive” billion-dollar insurance fund created by the government for the purpose of settling the claims.  That certainly didn’t make the case easy, but it added an element missing from most mass torts: some willingness among the defendants to settle for a reasonable amount. Usually, defendants want to tell people to take their cancer, their uncontrollable hemorrhaging, their heart attacks, and go home penniless.  

The part I found encouraging was the authors’ recognition of the reality of mass torts litigation as a war of attrition in which the defendant usually has far more money and far more time, than the plaintiffs:

Defendants exert leverage by pressuring the plaintiffs’ contingent fee structure. Defendants’ counsel are paid on a current and hourly basis and staff liberally. The result is extensive discovery, numerous motions, and a general prolongation of proceedings. It becomes expensive for plaintiffs’ counsel to fund the litigation, and a practice has grown of financing mass tort actions at high compound interest rates with repayment deferred until a settlement or recovery is accomplished.

As the article notes, the Responders’ lawyers, from the plaintiffs’ firms Napoli Bern Ripka Shkolnik and Worby Groner Edelman, “borrowed by 2010 more than thirty million dollars to help finance over seven years of litigation,” in loans personally guaranteed by the partners of the firm, with interest rates ranging from 6% to 18%, ultimately resulting in approximately $11 million dollars in interest fees alone. Carrying tens of millions of dollars in debt around your neck for years, without receiving a penny of income meanwhile, unsurprisingly has an effect on how you pursue the cases, and your evaluation of the cases’ settlement value. As Judge Strine in Delaware rightly recognized, the “real risk” in litigation grows the longer the case is in suit.
Continue Reading How Judges Can Settle Mass Torts Cases (A Lesson From The 9/11 Responders Litigation)

[Update, August 26, 2013: After some further bickering and litigation in the Haeger case, the Court granted the plaintiff’s motion for attorney’s fees, then ordered “judgment in favor Plaintiffs and against Graeme Hancock in the amount of $548,240.23 and against Basil J. Musnuff and the Goodyear Tire and Rubber Co. in the amount of $2,192,960.93.”]

Over at Safety Research, Sean Kane details a recent order from the federal court in Arizona entering sanctions against Goodyear and its lawyers for concealing testing data in a tire failure case. As every product liability lawyer knows well, the concealment of evidence by tire manufacturers and car companies is pretty much routine these days. It doesn’t matter how specific your request is, how many times you ask, or if you have several court hearings or court orders on your side: the car and tire companies will tell you that they have no safety testing or crash investigations that relate in any way to the products involved in your case. That is, of course, until you retain an expert to point out that the company apparently didn’t do any safety testing of its own products — at which point you will have thousands of studies and investigations dumped on your lap, but none involving the product at issue in your case. It’s a funny coincidence that way.

I’ve written before about the national scandal of tire failures, in which old and otherwise defective tires kill people every day. Tires are more than just rubber — numerous compounds are woven and glued together — but, when all is said and done, the tire is only as strong as its weakest link, and that weakest link is often a rubber compound or an adhesive. In hotter temperatures, and at higher speeds, the temperature of the tire goes up, making failure more likely. Simple chemistry.

Simple, but still too much for Goodyear. The deadly Goodyear G159 tire is well-known among trial lawyers. The tire was first designed for use on regional delivery trucks, which typically don’t travel at high speeds and which often stop. As baby-boomers began to age into their fifties in the 1990s, the Recreational Vehicle market grew rapidly, and Goodyear wanted to capitalize on it, so they re-branded the G159 as an RV tire, and it was adopted as the standard tire on several Fleetwood and Monaco RVs.

Problem was, the G159 wasn’t meant to withstand the weight of an RV at high interstate speeds (and sometimes in high temperatures in the South and the Southwest) for long durations. The tires began to fail at an alarming rate, prompting a wave of litigation, but no recall — and plenty of G159 tires are still out there, some as spares, getting older and even less reliable as the rubber and glue compounds dry out over time.

The Haeger case is thus almost routine by product liability standards: back in 2003, a husband and wife were seriously injured when the Goodyear G159 tires on their motor home failed while they were driving on the interstate. In the Haeger lawsuit, Goodyear was asked to produce a variety of high temperature and high speed testing, but didn’t, and repeatedly told the Court and the plaintiff’s lawyers otherwise. The case settled on the eve of trial; nearly a year later, the plaintiff’s lawyer was reading about another G159 case that went to trial and resulted in a $5.6 million verdict. The newspaper article mentioned the plaintiffs there had used at trial “Goodyear documents including internal heat and speed testing and 13 failure rate data” — the same studies Goodyear and its lawyers said didn’t exist in the Haeger lawsuit.

The plaintiff’s lawyer was, shall we say, upset, and wrote to Goodyear’s lawyer, who promptly admitted they hadn’t produced the studies, and claimed everyone — Court included — knew it! Unsurprisingly, the plaintiff’s lawyer disagreed, and so filed for sanctions.  Sean Kane’s post includes the sanction order itself, and I must admit it’s comforting to see, in a court order, confirmation of what product liability plaintiff’s lawyers like me say all the time: corporations routinely conceal evidence. As the Court dug up while considering the sanctions motion, Goodyear’s lawyers didn’t disclose evidence as required by court rules and court orders; instead, their internal emails showed they only produced what, they said, “serves our best interest to produce.”

But I don’t want to dwell on those details. 
Continue Reading Discovery Sharing By Plaintiff’s Lawyers (Or, The Dog Ate Goodyear’s Homework)

When I began law school, we started 1L with two weeks of the same class three days a week: Legal Decision Making. In theory, the class was supposed to introduce the nuts and bolts of the law, thereby giving us a running start on the substance of our other traditional 1L classes, like Contracts. It failed. Our professor misunderstood the Socratic Method to be little more than an excuse to berate students, and so the bulk of our time was wasted on verbal games of three-card monte where every answer was wrong. (It wasn’t until later that semester I witnessed, in another class, the Socratic Method used properly to stimulate critical thought.)

Our casebook was impossible to find and extraordinarily expensive because it had only been published once in the early 1960s. While the rest of the legal profession had rightly discarded the work as unworthy of even a second edition, our professor delighted in the book’s signature ability, through sloppy or malicious editing of critical passages, to turn straightforward court opinions into inscrutable parables.

Imagine Moby Dick with all references to whales omitted; that was how our textbook presented every case, concealing both the facts and the holding, leaving nothing but untethered legal analysis. Perhaps the most spectacular failure revolved around the meaning of “dicta” in court opinions. Lacking the facts or holding — and the cases being too old or too obscure, to find on LexisNexis or Westlaw — our attempts to discern the dicta from the precedent was, to paraphrase Melville, like a vast practical joke, the wit thereof we but dimly discerned. The joke, we more than suspected, was at nobody’s expense but our own.

Last week there was a dicta fight in the Delaware courts. If you don’t know the details of the Delaware Supreme Court’s per curiam reprimand of Chancellor Strine, read these Reuters or NYTimes reports for background, then be sure to read Gordon Smith’s post, which has the reprimanding language in full and which explains the intellectual background behind the fight. In short, these two highly respected jurists differ strongly over the “defaults” over Delaware LLC law: Strine thinks that, unless the parties clearly contract otherwise, then LLC managers owe fiduciary duties to LLC members; Steele thinks they don’t.  
Continue Reading The White Whale: The Purpose Of Dicta In Delaware

Saturday morning, I took my kids to one of their extracurricular activities and, as is our custom, struck up a conversation with one of the other kids’ parents, a doctor. He told me a story about when he was buying his house (a new house from a homebuilder): the contract included a 1-year warranty for defects in the house, but excluded problems caused by “Acts of God.” Reasoning that an “Act of God” could mean anything — it is indeed a central tenet of the Abrahamic religions that God is omnipotent and omnipresent — he crossed it out with his pen and initialed the change.

When it came time to sign the documents, the homebuilder’s agent looked at the scribble, shot a glance at the man and his wife, and said, “so who’s the amateur lawyer?” The man opened his mouth to explain, his wife gave him that look, and the “Acts of God” language was restored. Thankfully, nothing went wrong with the house that first year, and so he was spared further theological or marital arguments.

I told him that, though the phrase was on its face ambiguous, there was caselaw interpreting “Acts of God” — regularly used in construction, insurance, transportation, and other contracts — to generally mean completely unforeseeable events, and there was a whole body of law relating to the interpretation of these “force majeure” clauses. “So,” he asked, “would Hurricane Sandy be an ‘Act of God’”?

Good question! My off-the-cuff answer was: it depends on what geographic location and what damage you’re talking about. Here in Southeastern Pennsylvania, although Hurricane Sandy was itself unusual in how it came about — i.e., a warm hurricane being pulled into a cold, low pressure front — the mere fact of a strong storm with high winds was certainly not unforeseeable. Similarly, anyone who lives on the beach anywhere in the world runs a risk of a major storm surge flooding their home entirely. The trickier issue would be, say, Lower Manhattan, which was damaged primarily by a 100-year flood.

But I kept thinking about the issue: would Hurricane Sandy be an “Act of God” as written in most contracts? Finding the answer took me through several wonderful opinions by the late, great former Pennsylvania Supreme Court Justice Michael Musmanno. (He’s like Pennsylvania’s version of Justice Holmes: he wasn’t right about everything, but his opinions had such style, wit and grace, they couldn’t be ignored.)
Continue Reading Was Hurricane Sandy (Legally) An Act of God?