Published By: Maxwell S. Kennerly, Esquire

Litigation

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Without even holding a hearing, the House Judiciary Committee just passed a new bill (H.R. 985) that would make it far harder to sue large corporations when they cheat or hurt people. The vote was on party lines, with all Republicans voting for it and all Democrats voting against. The bill now goes to the full House — but there’s still time to make sure your Representatives know how you feel about it. Call your Representative and tell them to put their constituents ahead of the U.S. Chamber of Commerce, the top-spending lobbyist in the country.

 
 
 

Have you ever been cheated by a bank on an overdraft fee? So have millions of Americans, and the only way they ever get that money back is through a fraud and restitution class action. From stock losses to pension mismanagement to consumer scams to unpaid wages, for most of the frauds in America, the only way to get a dime back is through a class action.

 
 
 

Do you live on the Gulf Coast? That’s where I grew up, and I know that the only way those communities recovered anything from BP for the Deepwater Horizon oil spill was through multi-district litigation (“MDL”). From Vioxx pills causing heart attacks to DePuy hips causing metal poisoning to Volkswagen lying about emissions tests to the NFL hiding brain injuries, the MDL process is the only way to hold accountable reckless corporations when they hurt hundreds or thousands of people.

 
 
 

The so-called Fairness in Class Action Litigation Act of 2017 (H.R. 985) would wipe away decades of federal court precedent and would override the laws of all 50 states in an effort to ruin class actions and MDLs. The American Bar Association has opposed it for a variety of reasons, including how it “would circumvent the time-proven process for amending the Federal Rules of Civil Procedure established by Congress in the Rules Enabling Act” and how its requirements would have precluded veterans from suing the Veterans Administration over delayed claims. Seventy consumer, labor and environmental groups have opposed it. Thirty-eight groups that represent individuals with disabilities have opposed it. One-hundred twenty civil rights groups have opposed it. Law professors Myriam Gilles and Elizabeth Burch have explained why it’s a jumbled mess that will confuse courts and delay cases.

 
 
 

So why didn’t the House Judiciary Committee hold a hearing?
Continue Reading HR 985: A Sneak Attack On Veterans, Consumers, and Patients

Yesterday the family of firefighter Daniel Sweeney, who along with Lt. Robert P. Neary died in a fire at the derelict Buck Hosiery warehouse at the corner of Jasper and York in Kensington, filed suit against the owners of the building, Yechiel Lichtenstein and Nahman Lichtenstein, and their various companies involved.

Anyone who lives around Philadelphia is undoubtedly familiar with the story, which has generated a considerable amount of outrage, but I’d be remiss if I didn’t point you to Hidden City Daily’s coverage. Note that the first story there about the condition of the warehouse, “Passing the Buck,” was originally posted ten days before the fire, and it quotes Jeff Carpineta, president of the East Kensington Neighborhood Association, worrying about the dangers posed by the building and the possibility of a fire. The building had racked up considerable tax liens, and the Lichtensteins themselves couldn’t even identify who was responsible for monitoring the property.

To put it another way, no one was surprised by the fire, and the owners knew of the buildings poor state and frequently break-ins, but hadn’t done anything about it. If I were part of the Sweeney family, I’d want justice, too.

In most states, the Sweeney’s lawsuit would be promptly dismissed. The “firefighter’s rule” (sometimes called the “police officer’s rule” or the “rescue rule”) “bars an injured public-safety official from maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for bringing the officer to the scene of a fire, crime, or other emergency where the officer is injured.” Higgins v. Rhode Island Hospital, 35 A.3d 919 (R.I. 2012)(dismissing lawsuit by firefighter). That’s the majority rule across the United States. See, e.g., Babes Showclub, Jaba, Inc. v. Lair, 918 NE 2d 308, 313 footnote 3 (Ind. 2009)(recounting the many ways firefighters, police officers, paramedics and emergency medical technicians have not been able to recover compensation); but see Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210, 1218 (1984) (Oregon abolishes the fireman’s rule at common law).

In the tri-state area, New Jersey used to recognize the firefighter’s rule until 1993, when it was abrogated by statute. See Ruiz v. Mero, 189 N.J. 525, 917 A.2d 239, 247 (2007). For Delaware, as far as I can tell, only one trial court has ever addressed the issue, and it applied the firefighter’s rule. Carpenter v. O’Day, 562 A.2d 595 (Del. Sup. Ct., 1988).

In Pennsylvania, the courts have taken a nuanced approach, applying the rescue rule in some circumstances but not others. 
Continue Reading The Firefighter’s Rule And The Kensington Warehouse Fire Lawsuit

Scientific evidence plays a crucial role in virtually all mass torts cases (whether prescription drugs, environmental exposures, or consumer products), and so, when the National Research Council and the Federal Judicial Center published the Third Edition of the Reference Manual on Scientific Evidence, lawyers took note. Apart from Supreme Court opinions — which these days often raise more questions than they answer, which is partly why Daubert is still the leading case twenty years later — the Manual is likely the primary reference federal judges use to guide them in deciding what scientific evidence they allow into a jury trial.

Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.

Defense lawyers think judges too easily allow in “junk science” from plaintiffs, citing the silicon breast implant litigation, which resulted in over $3 billion in settlements and compensation for autoimmune injuries that most scientists now agree weren’t caused by the implants. Plaintiff’s lawyers, in turn, think the silicon implant case is the exception that proves the rule, and that courts these days more frequently use Daubert and Frye to destroy plaintiffs’ cases by wrongly excluding from trial valid scientific and medical testimony (here’s an example involving vinyl chloride and cancer, and another involving Tylenol and liver damage, and don’t forget Kumho Tire’s indefensible exclusion of an eminently qualified tire tread separation expert), while allowing defendants to bring in all kinds of unscientific nonsense (like the natural forces nonsense in shoulder dystocia lawsuits that’s allowed everywhere except New York).

(In the criminal context, prosecutors complain about the “CSI Effect,” the claim that jurors today expect forensic evidence in every case, while criminal defense lawyers counter that the forensic evidence offered is often garbage and speculation from people with a diploma mill degree.)

As far as I can tell, mostly defense lawyers took note of the Reference Manual publicly, and they took a starkly negative view of it. Nathan Schachtman says “there is a good deal of equivocation between encouraging judges to look at scientific validity, and discouraging them from any meaningful analysis by emphasizing inaccurate proxies for validity, such as conflicts of interest.” David Oliver has been on the warpath, claiming “the fix is in” and most recently criticizing the chapter, “How Science Works,” written by David Goodstein, Professor of Physics and Applied Physics at CalTech.

Oliver complains:

Avoiding any pretense of humility the Reference Manual dismisses as woefully naive and inadequate those claims about the essence of the scientific endeavor that were ingrained in us in school. … Unsurprisingly the Reference Manual, operating on the view that objectivity is an illusion, that you can never prove anything is false and that you can never prove anything is true (“the apparent asymmetry between falsification and verification that lies at the heart of Popper’s theory thus vanishes”) and thus without any track to follow, quickly careens into post-modernism. … So all the great thinkers were wrong. Objectivity is out. Testability is out. Keeping an open mind is out. Skepticism is right out. The appeal to authority is not a logical fallacy but fundamental to science.

I think Oliver has misunderstood the purpose of the chapter. 
Continue Reading The Difference Between Scientific Evidence And The Scientific Method

[Update, March 6, 2012: The study was published and is available here. The blog at Nature magazine has some commentary.]

A week ago, ScienceInsider (part of Science magazine) reported on lawyers for the mining industry sending a vaguely threatening letter to several scientific journals over the results of twenty-year diesel exhaust study:

Editors with at least four research publications say they have received a letter advising them against “publication or other distribution” of data and draft documents. The warning, including a vague statement about “consequences” that could ensue if the advice is ignored, is signed by Henry Chajet, an attorney at the Patton Boggs firm in Washington, D.C., and a lobbyist for the Mining Awareness Resource Group, which works on behalf of the mining industry.

Chajet declined to comment, but his letter makes it clear that he seeks to persuade journals to delay publishing or distributing papers containing results from the Diesel Exhaust in Miners Study (DEMS), a government-funded research project. His letter pointed out that a coalition of mining industry groups are legally entitled to review data from the study before publication. Other lawyers and researchers involved in the case also declined comment because the 2-decade-long dispute over DEMS is now under review in the U.S. Court of Appeals in New Orleans.

ScienceInsider posted a copy of the letter. We’ll get to it in a moment.

The stakes are high; the DEMS diesel study is a joint effort of the National Institute for Occupational Safety and Health (NIOSH) and the National Cancer Institute (NCI) to evaluate whether diesel exhaust, currently classified as a “potential human carcinogen,” is not just “potentially” but is actually a carcinogen, a finding that could prompt a wave a lawsuits and workers compensation claims by thousands miners in the United States, and changes in the mining industry itself.

The timing of the letter is no accident; in June the International Agency for Research on Cancer will review its position on diesel exhaust, and the U.S. National Toxicology Program is expected to do so soon as well.

Scientists are understandably upset over the threat; as John Cherrie at at the Institute of Occupational Medicine in Edinburgh, UK, worries:

I don’t pretend to understand the ins-and-outs of the court debate but it seems wholly wrong that the court, US congress or industry representatives should have some veto on publication of scientific results. It seems as though the original court ruling that this was the case was overturned but now the issue is about disclosure of data by the government agencies.

Pretending or not, he’s right about the original court ruling being overturned, but let me shed a little light on the current situation and why the mining company’s letter is more puzzling than truly worrisome.

The Federal Advisory Committee Act (FACA) establishes certain guidelines and limitations for all those committees, boards, commissions, councils and the like set up to advise federal agencies. The requirements are for the most part fairly easy to comply with, and are more focused on ensuring transparency than on altering the functioning of the committee itself. The FACA is not meant to be a vehicle for quashing scientific studies.
Continue Reading Will Mining Companies Really Sue Scientific Journals For Defamation?

Read more about our law firm’s Pennsylvania sexual abuse lawyers.

In less than three months, Joe Paterno went from one of the most revered figures in sports and a Pennsylvania institution to being implicated in a scandal, terminated from the job he had held for generations, and excoriated by the media to a historical figure who is no longer with us. He passed away over the weekend at the age of 85. A memento mori indeed.

I did not attend Penn State, so I’ll leave the remembrances to others. Paterno died, however, amidst a national scandal, two criminal prosecutions, and likely more than a dozen civil lawsuits to be filed. In those same three months the legal issues surrounding the Sandusky indictment have already advanced considerably, and now there’s a new question: what effect will Joe Paterno’s death have on the ensuing criminal and civil litigation?

I was quoted in a Reuters article that addressed those issues:

Because Paterno was not believed to have witnessed any purported abuse, his testimony would not have been crucial to Sandusky trial, said Paul Callan, a former prosecutor and criminal defense attorney.

But his death could set back the criminal case against Curley and Schultz.

“The Confrontation Clause (of the constitution) guarantees that criminal defendants will have the right to confront and cross-examine the witnesses against them at the time of trial,” Callan said. “No defense attorneys were present at the grand jury proceedings to do such a cross-examination.”

Max Kennerly, a Philadelphia trial lawyer who has followed the case, said Paterno’s death was unlikely to alter any civil litigation being contemplated by Sandusky’s accusers. If any were considering suing Paterno, they could just name his estate.

“Death doesn’t change your status as a party,” Kennerly said.

It wasn’t my intent to sound callous, but, in the legal world, death typically doesn’t break a case except where either a criminal defendant dies (and there’s no point in going forward) or the sole complaining witness against a criminal defendant dies (“no witness, no case” is the disturbing motto sometimes tied to witness intimidation or witness murder prosecutions, like Paul Bergrin’s). Here, Paterno wasn’t a defendant and, as far as anyone has said publicly, he didn’t witness any of the sexual assaults nor did Jerry Sandusky make any incriminating remarks to Paterno.
Continue Reading The Legal Effect of Paterno’s Death

It may very well be the oldest trial lawyer trick in the book: noticing an insubstantial, trivial, or non-existent discrepancy in a witness’ testimony and then throwing a fit about it and claiming the whole case is a sham. That’s what happened in Bull v. UPS, No. 10-4339 (January 4, 2012), an employment discrimination case arising from an on-the-job injury at UPS. Here’s the Third Circuit’s new precedential opinion in the case. ABA summary here.

In short, after the company’s orthopedist said the employee could not lift more than 10 pounds overhead, the company advised her it had no work for her and she had to go on permanent disability. On the recommendation of her union, the employee went to her own doctor, who at one visit said she could lift 50 pounds and then at the second visit said she could lift 70 pounds. UPS informally requested the original of the notes, claiming the copies she provided were illegible, but before she produced them she filed a worker’s compensation claim and an employment discrimination claim with the EEOC, which eventually turned into a lawsuit.

That’s where things got ridiculous. UPS knew one of the major issues in the case was her ability to lift heavy objects overhead. They also knew, before the lawsuit was even filed, that her primary care physician said she could lift enough weight, and they also already believed that the copies of the medical records they had were illegible.

At that point, any sane defense lawyer would have:

  1. served a subpoena upon her primary care physician for original copies of the record, and
  2. specifically requested from the plaintiff original copies of the record.

The company’s lawyer inexplicably did neither, and the issue remained dormant until trial, when the employee — who until that time understandably did not see anything wrong — said that she had the original copy at home, and that she could bring it in.

I am pretty sure that 9 out of 10 judges would have rolled their eyes when they heard the plaintiff had the originals at home, would have dismissed the jury for the day, and then would have told the plaintiff to go home and get that original and bring it in the next day. I have had exactly that same thing happen to me several times at trial. No harm, no foul is a good rule both for recreational sports and for sanctions.

For reasons that seem to me completely unfathomable, the judge responded by declaring a mistrial and inviting UPS’ lawyers to file a motion for sanctions, which the judge later granted, dismissing Bull’s case entirely.Continue Reading The Third Circuit’s New Spoliation Opinion On Producing Originals In Discovery (And Bad Faith In Sanctions)

I write a lot about lawyers doing dumb things in civil litigation. Sometimes they’re coaching witnesses at a depositions, sometimes they’re citing dozens of cases for no reason, and sometimes they’re disrespecting the court by hurling insults at their opposing party.

Thus, as soon as I saw the lede to this article, I knew I had a post in the works:

Call it judicial jujitsu in a case over a martial arts bear. A plaintiff who claims DreamWorks and Paramount infringed his copyrights in their Kung Fu Panda movies has asked the court to sanction the defendants for improper investigation tactics, but his opponents want the case dropped because he skipped a deposition.

After law students graduate, there are a variety of legal fields in which they can practice. Most don’t put them anywhere near a courtroom. Two fields, criminal defense and family law, toss them into courtrooms immediately. Personal injury tosses them into the courtroom quickly, too, sometimes for trials, but far more often to argue discovery motions. Grab a random first-year associate at a personal injury law firm (plaintiff’s side or defense side, doesn’t matter) and ask him or her what they’re doing: “I have a discovery hearing.”

Even if one of the older lawyers doesn’t tell you right off the bat, personal injury associates going to endless discovery court motions — where they can observe others winning and losing motions — quickly learn a few things, like:

  • Judges don’t like discovery court much in the first place.
  • Judges don’t like long discovery motions; the issues are usually simple and so the briefs should be, too.
  • Judges rarely grant sanctions and, when they do, it’s usually a simple monetary fine rather than an order affecting the merits of the case.
  • Judges hate to referee squabbles among counsel.

In 2005, when changes to sanctions rules were being discussed, the Federal Judicial Center surveyed federal judges on a couple Rule 11 issues. Take a look at how strongly federal judges dislike entering sanctions:

85% strongly or moderately support Rule 11’s safe harbor provision;

91% oppose the proposed requirement that sanctions be imposed for every Rule 11 violation;

84% disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation;

Do you see where this is going? Of course you do. Sanctions for “improper investigation tactics?” Dismissal because plaintiff “skipped a deposition?”

Not gonna happen.
Continue Reading Friends Don’t Let Friends File Pointless Sanctions Motions

Updated June 11, 2019

During the Iran-Contra hearings, Brendan Sullivan, a senior partner at Williams & Connolly (I wrote more about them here) who represented Oliver North, famously responded to Senator Daniel Inouye’s criticism of Sullivan’s repeated objections during the Congressional hearings with “Well, sir, I’m not a potted plant. I’m here as the…

The Wall Street Journal Law Blog points us to a typical deposition transcript out of Cleveland about a copy machine:

Plaintiffs’ lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Deponent’s Lawyer: Objection.

PL: Any photocopying machine?

Deponent: When you say

…