Published By: Maxwell S. Kennerly, Esquire

[Update: After I published the initial version of this post, GoldieBlox pulled the video and “apologized.” My thoughts are appended at the end.]

 

About 30 years ago, a punk rock band in New York City had the good fortune to run into an NYU student named Rick Rubin, who convinced them to move into hip-hop and rap and began producing them. This compelled the only woman in the group, Kate Schellenbach, to leave. (She eventually went on to join Luscious Jackson and to be a producer of The Ellen DeGeneres Show.) Three years after that, they released their debut album Licensed to Ill, which became the first rap album to hit No. 1 on the Billboard chart.

 

On that album was a short, repetitive (the melody is just The Isley Brothers’ “Shout” played over and over again), misogynistic track titled “Girls,” a track hated by a large swath of society, including, apparently, some of the band members. The Beastie Boys never played it live, and Adam “MCA” Yauch subsequently apologized for the insulting and bigoted content on the album, including in 1994 lyrics “I want to say something that’s long overdue / the disrespect to women has got to be through / to all the mothers and the sisters and the wives and friends / I wanna offer my love and respect to the end,” and in a 1999 letter to Time Out New York.

 

It was thus deeply satisfying to see GoldieBlox, the makers of a science-based toy for girls (one that I pre-ordered for my girls and received as a gift from my mother), repurpose the song as a girls-empowerment theme, changing lines like “Girls, to do the dishes / Girls, to clean up my room” into “Girls, to build the spaceship; Girls, to code the new app.” They then posted it online, and it promptly went viral, shared widely by the many people who hated the original “Girls.”

 

It’s unclear what exactly transpired between The Beastie Boys and GoldieBlox, but it is clear The Beastie Boys felt the use was for commercial advertisement, even if it was for a positive message with which they now agreed, and so now the case is in Court. The Hollywood Reporter has the complaint.

 

Considerable attention has been drawn towards the fact that Goldieblox filed the case, not The Beastie Boys (or Def Jam Records, or any of the other entities involved), but in the world of copyright litigation, that doesn’t mean too much. If there’s doubt as to whether or not you’re infringing on a copyright (i.e., if you’ve received a specific claim that you’re infringing), there’s good reason to file first, and in this case the complaint is filed against a bunch of massive corporations in a district that is convenient to them (i.e., the Northern District of California), and so this isn’t an example of a big company trying to push around a copyright holder by preemptively suing them in a far-flung jurisdiction. I personally wouldn’t have filed first, but there’s nothing unusual about GoldieBlox doing it, and the law encourages them to file quickly to remove the cloud of doubt — if they don’t, and it turns out later that a court finds the work to be infringing, they could be on the hook for much larger damages.

 

Now, on to the merits: does the GoldieBlox commercial infringe upon The Beastie Boys’ copyright to “Girls?”  Continue Reading GoldieBlox’s Parody Of The Beastie Boys Is Probably Fair Use

Late last week, when I heard that the U.S. House of Representatives passed the “Lawsuit Abuse Reduction Act,” a certain Mark Twain quote came to mind: “Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself.”

 

Currently, if a lawyer violates Federal Rule of Civil Procedure 11 (which prohibits, for example, filings presented for an improper purpose or which contain a false statement of fact), a Court may impose a sanction, including a monetary penalty. The “Lawsuit Abuse Reduction Act” would change that to require monetary sanctions whenever a Court finds Rule 11 was violated.

 

I discussed the same bill two years ago, noting that the bill would actually make litigation in federal courts more expensive for everyone involved, by encouraging lawyers on both sides to file endless sanctions motions against one another, as was the case for ten miserable years between 1983 and 1993 when a similar rule was in effect. I’m not alone in my views: as the Judicial Conference of the United States wrote earlier this year in opposition to the Act, the old rule “quickly became a tool of abuse in civil litigation” that absorbed money and time on “Rule 11 battles that had everything to do with strategic gamesmanship and little to do with underlying claims.” A whopping 91 percent of federal trial judges oppose the bill’s requirement for mandatory sanctions, hence the Judicial Conference’s opposition. The American Bar Association has opposed it as well.

 

The bill is unlikely to pass in the Senate, and, if it does, it will be vetoed by President Obama, but it nonetheless deserves close scrutiny because it reminds us of an important point about tort reform: big businesses and big insurance companies want the civil justice system to be more expensive, not less. Continue Reading “Lawsuit Abuse Reduction Act” Aims To Make Litigation More Expensive

[Update: A month after I posted the below article, researchers at the Radiological Society of North America’s annual meeting presented a cardiac MRI study showing that consumption of energy drinks “increased peak strain and peak systolic strain rates in the heart’s left ventricle,” which could potentially trigger arrhythmias.]

 

Few headlines are as cringeworthy to upstanding trial lawyers as those which include a phrase like “$85 million lawsuit alleges,” and earlier this week the New York Daily News reported “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”

 

As Eric Turkewitz aptly explains about the “$85 million dollar” Red Bull wrongful death lawsuit, this practice is prohibited in many venues — like New York, where the case was filed — and yet lawyers do it anyway, either out of ignorance about the rules or to attract attention. At least here, though, our attention is drawn to what looks like an interesting case.

 

First, let’s start with the medicine: is it possible Red Bull contributed to the death of 33-year-old Cory Terry during a basketball game? I think the answer is clearly “maybe.” The article says his death certificate lists the cause of death as “idiopathic dilated cardiomyopathy.” “Dilated cardiomyopathy” is generally an enlargement of the heart’s left ventricle, which affects pumping, and “idiopathic” is medical speak for “I don’t know what happened to this patient.” (“Idiopathic” is a mashup of the ancient Greek words idios and pathos, together meaning “one’s own suffering.”)

 

In the medical field, idiopathic dilated cardiomyopathy is a complicated, frustrating problem. Consider this 2012 research article:

 

Despite recent advances in the management of patients with heart failure, morbidity and mortality rates remain high. Common causes of heart failure are ischaemic heart disease, uncontrolled hypertension and valvular disease. However, in up to 50 % of the cases its exact cause remains initially unknown; this condition is called idiopathic dilated cardiomyopathy (DCM).

 

We thus don’t know the cause of half of all heart failures, but we do know that stimulants, particularly cardiac stimulants like caffeine, can raise heart rates and cause palpitations and arrhythmias and thus can contribute towards heart failure in patients with cardiomyopathy. As The Cardiomyopathy Association says, “General advice is that people should minimise their caffeine intake.”

 

In sum, while we might not know the precise nature of his underlying heart problems, it is plausible — I would say likely — that the stimulants in the Red Bull contributed to his heart failure.

 

But does that make Red Bull responsible for his death?  Continue Reading The Red Bull Wrongful Death Lawsuit Might Have Wings

After spending decades hiding from the limelight, Harper Lee, revered by lawyers across the country for giving us our greatest fictional champion, has had a rough, litigious, and very public year. In May, she sued her former agent Samuel Pinkus (Complaint here), alleging that he had taken advantage of her failing health, tricking her into assigning away the copyright for To Kill A Mockingbird, failed to account for and thus to properly pay royalties, and failing to “work the copyright,” apparently giving us an explanation as to why To Kill A Mockingbird has never been available as an e-book. Vanity Fair did a long story on the controversy in July, and then in September the whole case was settled. Given the speed of the settlement, I can only presume it settled for roughly whatever Lee’s lawyers were requesting.

 

All’s well that ends well? Not quite. To Kill A Mockingbird is not just a classic book, it’s a major business. As Vanity Fair reported, “In one typical six-month period alone, ending December 2009, Lee earned $1,688,064.68 in royalties, according to court papers.” While the Pinkus saga was ongoing, Lee’s lawyers had already filed, in September 2012, an application for a trademark for “To Kill A Mockingbird” as used on “clothing for men, women and children, namely T-shirts, hats, jackets.”

 

There’s nothing wrong with an author trying to license and merchandize rights that arise from their creation. (Bill Watterson, creator of Calvin and Hobbes and another famous recluse, hated mechandizing with a passion.) But this seems like a sad story that’s just getting sadder.  Continue Reading The Tragedy Of Harper Lee Suing Her Hometown Museum

 

First, an important credit: The Philadelphia Inquirer has devoted a half-dozen stories to the plight of Barbara Mancini. All the facts described in this post come from their reports.

 

Joseph Yourshaw, 93 years old and a World War II veteran who had served in the Battle of the Bulge, was in home-hospice dying from kidney failure, end-stage diabetes, and heart disease, with additional complications from a stroke and pain from arthritis. Barbara Mancini was a nurse in Philadelphia and, it seems, quite a good daughter, as she had made the 2-hour trek up to Pottsville in Schuykill County to be bedside with him and to help him with his medications. He was in severe pain, as usual, and he had a prescription for morphine. She asked the hospice nurse for a bottle of morphine; it’s apparently disputed whether she asked for a second one after already giving him one, or whether she asked for a second one because the first hadn’t arrived yet and Yourshaw was in pain.

 

And that’s when the nightmare started. The hospice nurse called 911, and reported the following:

 

The nurse “told me that her client had taken an overdose of his morphine with the intent to commit suicide,” [police officer] Durkin wrote in his report.

The nurse said Mancini, who also is a nurse, gave her father the morphine “at his request so that he could end his own suffering,” Durkin wrote.

 

Before getting to the prosecution, let’s start with the factual predicate. If everything the nurse said was true — thus far, as is typical when there is a criminal prosecution, Mancini has not given her side of the story publicly — then so what? Pennsylvania law allows a person to voluntarily die by way of suspending medical care, food, water, ventilation, and so on and so forth; the state even has a website set up so people can correctly set up their advance directives for health care paperwork. If we allow someone to literally starve himself to death rather than continue living with a terminal illness, why don’t we allow him to simply increase the dosage of the pain medication he’s already taking?

 

Indeed, the United States Supreme Court has already said it’s okay for States to allow patients to request life-threatening levels of palliative medication:

 

Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended “double effect” of hastening the patient’s death. See New York Task Force, When Death is Sought, supra n. 6, at 163 (“It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death, if the medication is intended to alleviate pain and severe discomfort, not to cause death”).

 

Vacco v. Quill, 521 U.S. 793, 807, Fn 11 (1997). But, just because something is “ethically and professionally acceptable” doesn’t mean it’s lawful in Pennsylvania, and our Commonwealth still has the absurd notion that what allegedly happened to Mr. Yourshaw was a terrible crime. Continue Reading Barbara Mancini, Allegedly Guilty Of Mercy For Her Father

 

It’s October, which means the Supreme Court is back in session, ready to continue its pro-big-business charge. It also means it’s time for me to get back to a recurring theme on my blog: if past sessions are any indication, then no matter what the Supreme Court decides this year, it’s likely that it won’t have a clue what it’s talking about, and its opinions will be littered with dubious factual conclusions.

 

This problem seems to be getting worse in the era of the Roberts Court, which has taken judicial activism to a new level. Back in 2009, I recommended the Supreme Court circulate draft opinions publicly — the same way that bills are proposed in Congress and regulatory changes are proposed in agencies — before making them the law of the land. In February 2012, Alli Orr Larsen wrote about “Confronting Supreme Court Fact Finding,” perhaps by way of an agency analogous to the Congressional Research Service, which I discussed here.

 

But it’s important we recognize that the problem of Supreme Court “fact finding” isn’t just a matter of the Court not understanding cable television markets or how plaintiff’s lawyers are compensated differently from defense lawyers. The Supreme Court’s factual misunderstandings intrude very deeply into some of the Court’s core doctrine.

 

Take, for example, qualified immunity in civil rights lawsuits. It would make sense if people could sue State governments to recover damages when their constitutional rights are violated — like when police officers literally break someone’s face for back talking — but the Supreme Court has erected tall barriers against such relief. It’s not enough to prove constitutional rights were violated; the plaintiff also has to jump through a variety of hoops, such as suing the police officer individually, rather than the municipality or county, for the violation, and then they have to show that their right was “clearly established” and that the violation “shocks the judicial conscience,” which is so ambiguous that it’s really just code for giving federal judges a way to get rid of civil rights lawsuits they don’t think should succeed.  Continue Reading The Depth Of The Supreme Court’s Factual Misunderstandings

 

Katie Colaneri at NPR / WHYY’s StateImpact has an excellent story on the new “light, sweet crude oil” trains rolling through Philadelphia these days. The development is part of a larger, North America-wide story about the surge in transport of oil by rail (see this Reuters story and this Joseph DiStefano story for background). On the one hand, it’s good news for our local economy: the trains are on their way to the refineries in South Philadelphia, which otherwise would likely lay dormant, with a corresponding economic loss. Presumably energy costs would go up as well if the trains weren’t used.

 

On the other hand, as Newsworks mentions, “these shipments are coming via the same type of train that derailed in Lac-Mégantic, Quebec, last July, leaving 47 people dead and reducing the downtown to smoldering rubble.” The blast radius was apparently twice the length of a football field, and afterwards even firefighters had to be excluded for more than a half-mile from the blast due to the intensity of the flames and the dangerous debris. (Map here.) Unsurprisingly, the Manitoba government just recently rejected plans to run a crude oil line near them.

 

The trains come from North Dakota, by way of Chicago, Albany, and New Jersey. As this PDF map from the Pennsylvania Department of Transportation shows, the CSX trains (the orange lines) roll down past Bustleton, Fox Chase, Cheltenham, North Philadelphia, then alongside the Schuylkill, through Center City (between Rittenhouse and University City), before curving off towards the refineries and the airport. An explosion equivalent to the Lac-Mégantic disaster in the Philadelphia metro area would produce a far greater loss of life, a catastrophe in every sense of the word.

 

So, what’s being done to make sure we’re safe? It seems nobody knows:  Continue Reading Are The Railroads Responsible If An Oil Train Explodes In Philadelphia?

I criticized Consumer Reports’ hospital ranking methodology not too long ago, but, as I wrote then, I think they do good work and I support their mission. Last week, they yet again stepped in to protect consumer safety with a new initiative at the Safe Patient Project demanding that a variety of medical device manufacturers offer real warranties with their products. More details available at the Consumerist blog (which they own).

 

To understand why such a basic consumer promise is a big deal requires a bit of background.

 

The new iPhone comes out this week, and if there’s one thing we know for sure, it’s this: it’ll be largely disposable. Apple provides a one-year limited warranty on iPhones, which covers “defects in materials and workmanship when used normally in accordance with Apple’s published guidelines … [which] include but are not limited to information contained in technical specifications, user manuals and service communications.” It’s annoying and feels cheap, but it’s hard to complain about it; sure, an iPhone is expensive, but it’s also rarely necessary, it’s just one of dozens of viable options for consumers, and the limitations and problems with the phone are generally disclosed upfront. By and large, iPhones work, but they don’t work for years on end, and when it inevitably breaks or stops working, you’ll need to buy a new phone. C’est la vie.

 

Medical implants, however, are another story. They’re incredibly expensive and their risks are completely unknown to patients. More importantly, when your medical device fails, you don’t just buy a new one, you suffer a host of complications until you can find a doctor willing to explant the device and implant a new one, which you hope will bring you at least back to the condition you were in. That’s the best case scenario; many times, medical device failures bring with them a host of horrendous complications. More than a few of my hip implant clients had their broken hip removed, had a new hip implanted, had to get that removed when it got infected, had to sit around for a while with the dreaded “spacer,” then got another hip implant that leaves them with severely limited mobility and chronic pain.

 

So what’s the typical warranty on a medical device implant?

 

There isn’t one. Typically, a medical device manufacturer is not responsible at all for promises it makes on the label, nor responsible for even making a product “fit for ordinary purposes.” Thus, when their devices fail, the patients bear the harm and losses with no recourse, and we as a society shoulder a financial cost that should be paid wholly by the manufacturers. (Morgan & Morgan’s blog has a bit more on the typical cost of hip failures.) Continue Reading Will Medical Device Companies Finally Stand Behind Their Implants With A Warranty?

 

The NCAA is a magnet for litigation these days; if they’re not being hounded with dubious claims by Pennsylvania Governor Tom Corbett, they’re being challenged for a variety of meritorious antitrust claims, like on their rules limiting athletic scholarships and their licensing agreements for videogames. The cases raise substantial issues about the extent to which an organization can wholly dominate — and profit from — the field of college athletics free from legal accountability.

 

The Jack Hill, Jr., lawsuit filed last week in Pennsylvania state court, however, raises an issue of far greater importance: whether the NCAA has a duty to protect the health and well-being of student-athletes. Hill was a senior at Slippery Rock University trying to make the basketball team. For years, various medical professionals and health educators have discouraged coaches from using exercise as a form of punishment — in 2009, for example, the National Association of Sport and Physical Education released a position statement arguing that “Administering … physical activity as a form of punishment and/or behavior management is an inappropriate practice” — but Slippery Rock University’s basketball team apparently eschews modern sports medicine for medieval torture methods, and so was, according to the complaint, going through a third practice of the day, a late-night “insanity workout … intended to serve as a punishment for the entire team.”

 

Problem was, Hill, who was trying to make the team as a walk-on, had undiagnosed sickle-cell trait. He collapsed near the end of practice. According to the complaint, CPR was performed briefly, but stopped before emergency personnel arrived (which is wrong, you should keep doing CPR aggressively until help arrives), and an automated external defibrillator was brought but nobody knew how to use it. He was declared dead shortly after arriving at the hospital. The Pittsburgh Post-Gazette report that his autopsy showed his death was related to sickle cell trait. (I’m curious for more details on that point; I assume the cause of death was acute exertional rhabdomyolysis secondary to sickle cell trait.)

 

Hill’s death was, shockingly, no surprise at all. As Scientific American reported last month, “Between 2004 and 2008 there were 273 athlete deaths in the NCAA, five of which occurred among players with sickle-cell trait.” In 2007, the National Athletic Trainers’ Association noted that, apart from trauma, the four top killers of high school and college athletes were “cardiovascular conditions, hyperthermia (heatstroke), acute rhabdomyolysis tied to sickle cell trait, and asthma,” and that sickle cell trait deaths were among the easiest to prevent, because “simple precautions seem to suffice.”

 

It’s a killer, but many coaches, schools, and the NCAA didn’t care at all until the Lloyd lawsuit back in 2008. Per USA Today, “Dale Lloyd II was a freshman cornerback at Rice in September 2006 when he fell unconscious on the practice field after sprinting 100 yards for the 16th consecutive time. … 21% of universities had decided to test for the trait by 2006. Rice University was not among them, and the NCAA didn’t recommend it.” For all the noise made by insurance companies and other billion-dollar industries that profit from recklessness, lawsuits can and do make a difference, and the Lloyd lawsuit both substantially raised the profile of the dangers to athletes with sickle cell trait and, in the settlement, the plaintiffs demanded the NCAA do more to prevent deaths like Lloyd’s by implementing a mandate requiring players be screened for the trait or sign a waiver turning down the screening.

 

For the 2010 season, the NCAA agreed to do that sort of screening — but only for Division I athletes. Slippery Rock is a Division II school, and one that, as of 2011, still used the very sort of dangerous and pointless torture sessions rejected by every competent sports medicine organization.

 

Hence, Hill’s parents have sued both Slippery Rock, for its antiquated and reckless training methods, and the NCAA, for not requiring screening of Division II athletes as well. Continue Reading Is The NCAA Legally Responsible For Player Injuries And Deaths?

 

I like Consumer Reports, and, though I wish they would take a more active stance in supporting consumers’ legal rights, I think they’ve done a fine service for American consumers over the past 70-odd years with their independent reviews.

 

However, I think their hospital ratings system is doing more harm than good. I opened up the latest issue, with ratings for most states — including Pennsylvania and New Jersey — and was surprised to see a variety of small ambulatory surgery centers and smaller hospitals in exurbs and rural areas trouncing the world-renown teaching and research hospitals in Philadelphia.

 

I don’t think prestige makes anyone or any entity above criticism. Moreover, as a malpractice lawyer, I’m usually the first one to ring the alarm bells about the horrifying problems endemic to the medical profession, and I certainly don’t just take a doctor’s or a hospital’s word for the quality of their care. But when you review and litigate as many cases as we do, you get to know the medical community quite well, and something just plain didn’t sound right about the rankings, which seemed to be reversed. Few malpractice lawyers around here would agree that patients should choose some of the highest ranked hospitals on the list (many of which are simply surgical centers with 30 or fewer beds) over some of Consumer Reports’ lower ranked hospitals, like Pennsylvania Hospital and Jefferson Hospital, which received the lowest possible rating (a solid black blob), or Einstein and Hahnemann, which received the second lowest possible rating (a half-black blob).

 

I wasn’t the only one surprised; up in Boston, Massachusetts, for example, Carney Hospital had the highest rating, while Brigham and Women’s and Mass General — both world-renown — had the lowest. WBUR looked into the disparity for surgical ratings, and talked with Mass General’s Vice President for Quality and Safety. They pointed out a variety of problems with the ratings, including how the ratings don’t take into account a variety of important factors, including:

 

  • how sick the patient was when he or she came in for surgery or the severity of their disease
  • how many other conditions the patient may have
  • how many complications actually occurred

 

Indeed, reviewing the 44-page outline of how Consumer Reports rates hospitals reveals, first, that they’re not that different from the Hospital Safety Score, and, second, that their analysis is subject to numerous limitations. In assessing post-surgical complications, for example, the bulk of the score comes from the presence of Accidental Puncture or Laceration (30%), Pressure Ulcers (24%), Postoperative Pulmonary Embolism or Deep Vein Thrombosis (24%), and Central Venous Catheter related bloodstream infection (13%).

 

It’s not crazy to attempt to measure hospitals this way. All of these are part of the Agency for Healthcare Research and Quality’s National Quality Measures Clearinghouse. But two problems leap out at me.  Continue Reading Consumer Reports And The Wrong Way To Choose A Hospital