Published By: Maxwell S. Kennerly, Esquire

Have you seen this horrifying graphic?

nyt-horrifying-graphic

It’s from a New York Times story, “How Stable Are Democracies? ‘Warning Signs Are Flashing Red.’” The graphic suggests that people were asked whether it was “essential” to live in a democracy and, in response, more than half of people born after the 1960s said it was not. Worse, the graphic suggests nearly 70% of people born after 1980 said it was not “essential” to live in a democracy.

If that were true, it would be quite alarming.

Here’s the good news: it’s not true. No one was even asked if it was “essential to live in a democracy.”

Here’s even more good news: that same study actually showed,

  • 98.9% of Americans under 30 believe it is “important” to live in a democracy.
  • Americans under 30 are three times less likely than Americans over 50 to say that free elections are not “essential.”
  • Americans under 30 are half as likely than Americans over 50 to say that civil rights protecting people from state oppression are not “essential.”
  • Americans under 30 are far less likely to say it is “essential” that people “obey their rulers.”

There are lies, damned lies, and statistics. Let’s see how this all went wrong.

 Continue Reading Younger People Are Actually More Supportive Of Democracy

As I wrote two weeks ago, a petition for certiorari is pending in Bristol-Myers Squibb Co. v. Superior Court, a case that might change the rules for specific jurisdiction. A week ago, amicus briefs were filed by several large corporations and their lobbying groups, including a brief by GlaxoSmithKline that included these curious quotes and citations:

GSK-Miller

When’s the last time you saw a multi-billion-dollar corporation tell the Supreme Court of the United States to get the real facts about personal injury lawsuits from The Trial Lawyer Magazine and a six-year-old post on accidentinjurylawyerblog.com?

 

I’d certainly trust Ron Miller before GlaxoSmithKline. Sure, there’s reason to question the credibility of both: GlaxoSmithKline paid $3 billion to settle fraud claims brought by the Department of Justice, whereas Ron Miller didn’t follow me on Twitter until recently. Despite that obvious lapse in Ron’s judgment, he’s a trustworthy guy.

 

The citation to Ron’s blog is not the only time I’ve seen a legal blog cited in a brief. I recently saw a federal appellate court brief filed by a drug manufacturer include a citation to Drug & Device Law, a blog written entirely lawyers who represent drug manufacturers. I don’t have a problem with that, either. The citation to Drug & Device Law was in many ways a de facto extension of the page limits, because the post in question advocated for the same position the defendants were taking, but the same could be said for many of the nominally “unbiased” law review articles that are routinely cited in briefs and by courts.

 

But there are deeper issues we need to consider here. Are parties encouraging courts to decide cases based on facts outside of the record? Should courts decide cases based on advocacy pieces from non-parties? Are we really entering an era in which a lawyer can credibly support an argument by referencing something they read on the Internet? Continue Reading When Lawyers’ Blogs Are Cited In Federal Courts

Pfizer likes California. As the company brags on its website, “Pfizer La Jolla’s 25-acre campus includes five buildings totaling more than 500,000 square feet of state-of-the-art facilities, with specialized laboratories and equipment for structural and computational biology, molecular design, drug metabolism, high throughput chemistry, and pharmacology.” Pfizer reaps billions in profits from its California sales (profits Pfizer is going to avoid paying taxes on by asserting they were earned overseas), and Pfizer shovels that money right back into California politics, spending over $6 million this year trying to influence a California ballot measure that would cap prescription drug costs.


But that didn’t stop Pfizer from claiming in a court filing earlier this week that lawsuits against it cannot “be fairly heard by a California state court.” Pfizer claims that allowing lawsuits against it to be heard in California would deny Pfizer “its due process right not to be hailed into a foreign court that lacks both general and specific jurisdiction.” It’s as if California was some sort of totalitarian regime on the other side of the world, rather than the home to Pfizer’s 25-acre campus less than a mile from the Torrey Pines Golf Course.

If this sounds nuts, that’s because it is nuts. But this is the wacky world of personal jurisdiction that big corporate defendants want to create by way of the Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 20 (2014). The proper application of Daimler AG has been one of the most contentious issues in the federal courts over the past two years, and it’ll remain contentious for years to come.

So grab a cup of coffee and let’s get to work.

 Continue Reading Personal Jurisdiction Under Daimler AG and Walden

I’ve been writing about the law of driverless cars since 2011. For more than forty years, the general rule for when a car was defectively designed is whether the manufacturer met “a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.” Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968).


Volvo got a lot of free press last year when it said it would accept legal responsibility for crashes involving self-driving cars, but, as always, the fine print said otherwise:

Volvo also told the BBC it would only accept liability for an accident if it was the result of a flaw in the car’s design. “If the customer used the technology in an inappropriate way then the user is still liable,” said Mr Coelingh. “Likewise if a third party vehicle causes the crash, then it would be liable.”

In other words, Volvo agreed to nothing at all. Volvo simply agreed it would be held responsible in the same circumstances under which it would already be held responsible: when there was a flaw in the car’s design.


That aspect raises an obvious question: how should driverless cars be designed? Most of the media attention has been devoted towards philosophical questions like “the Trolley Problem.” Continue Reading In Praise Of Mercedes-Benz’s Killer Robot Car

This post was inevitable. I’ve been writing about defamation law on this blog for years. Back in July 2010, for example, I explained why Mark Zuckerberg wouldn’t sue the makers of The Social Network, and he didn’t. In 2012, I said Michael Mann’s claim against the National Review was “non-frivolous,” but that it was a difficult question as to whether it could proceed – and three years later the Washington Post said it seemed “the court may be having some difficulty” deciding it, and the case is still stuck. Earlier this year, I spelled out the legal issues in the Hulk Hogan v. Gawker trial, based on the lawyers’ own briefs.

 

Now Donald Trump, faced with an onslaught of sexual assault allegations — essentially alleging that he committed the sexually aggressive behavior he bragged about in the 2005 Access Hollywood tape — has started threatening to sue for defamation. Funny coincidence: years ago, I met New York Times Assistant General Counsel David McCraw, who wrote the paper’s response to Trump. He told me the New York Times hasn’t paid a dime on a defamation case in fifty years, and they’re not going to start any time soon. I’m pretty sure that is still true today and will be true for years to come.

 

When a lawyer writes a letter for public consumption, it looks like Donald’s letter. When a lawyer writes a letter as a prelude to a lawsuit, it looks like Melania’s letter. Donald Trump hasn’t sued a newspaper for libel in thirty years, but Melania did just last month. As I’ll explain below, it looks like Donald Trump is just blowing smoke for show – perhaps he’ll file a lawsuit now then dismiss it after the election – but Melania Trump’s lawyer, the same lawyer who represented Hulk Hogan against Gawker, is using the same strategy he did in that case to position her for a similar outcome. Continue Reading How Donald and Melania Trump Will Dodge The First Amendment

Thirty-one states have passed “Right To Try” legislation that, in theory, makes it easier for patients with terminal diagnoses to use drugs that are in the investigational stage but haven’t yet been approved by the FDA. I use the phrase “in theory” because state legislation doesn’t mean much in the field of drug regulation: it’s all determined by the federal government, which has the power to shut down unapproved uses of medications, even if the state government says otherwise.

 

The idea behind “Right To Try” state legislation is compelling: from a common-sense perspective, there aren’t many good reasons why terminally ill patients should not be allowed to “try” medicines their doctor believes might help them, even if the medicine isn’t yet approved. After all, many of the approved medicines for terminally ill conditions aren’t that useful. For example, most pharmaceutical cancer treatments have been approved on the basis of “surrogate markers” (like reduced tumor growth rates) instead of being actually shown to improve mortality.

 
 Continue Reading Why Drug Companies Oppose “Free To Choose” Medicine

There are a few truisms in civil jury trial practice, one of which is: don’t make an appeal to sympathy. See, e.g., Arnold v. E. Air Lines, Inc., 681 F.2d 186, 196-200 (4th Cir. 1982)(“the blatant, direct appeal for sympathy in closing argument [was] plainly improper”). The jury, too, is specifically told to disregard sympathy. See, e.g., Ninth Circuit Model Jury Instructions, 1.1B (“you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy”).

 

Typically, when it comes to complaints about “sympathy” in civil trials, the complaints come from insurance companies, big companies, and hospital systems, all of which often claim that verdicts for plaintiffs come more from sympathy than from a dispassionate review of the facts. I personally disagree — every day in America, “sympathetic” plaintiffs lose their cases — but that’s an argument for another time. Today’s post is about when a corporate defendant tries to play on the jury’s sympathy. Continue Reading No Sympathy For The Corporate Defendant

 

Here’s the punchline: if you play Pokémon GO, then, within thirty (30) days of downloading it, you need to send an email to termsofservice@nianticlabs.com with the subject “Arbitration Opt-out Notice” in which you specifically say that you are keeping the right to litigate any dispute with Niantic, Nintendo, and any other party relating in any way Pokémon GO.

 

Got it? Good. Let’s talk about why. Continue Reading Pokémon GO Players Need To Send This Email Immediately

Popehat already explained in general why there’s nothing unusual about Judge Curiel’s rulings in the Trump University case, i.e., that denying summary judgment is the norm. Nonetheless, Kevin Drum recently mused:


I think we all know perfectly well that Curiel is just an ordinary judge, and Trump is ranting against him because that’s what Trump does whenever something doesn’t go his way. He whines. Endlessly. Still, I’m kind of curious. It would be interesting if some kind of qualified lawyer type went through the records of these trials and reported back on whether Curiel seems to be conducting things fairly. Maybe he’s not! Maybe he really does hate Trump. Unfortunately, I suppose that would be a lot of work. Oh well.


Let’s take a trip “through the records” of Makaeff v. Trump University, No. 10-cv-0940, in the United States District Court for the Southern District of California. (Coincidentally, I’ve argued in that courthouse many times over the past few years, most recently in April. None of those cases were in front of Judge Curiel.) Continue Reading The Details Of Judge Curiel’s Trump University Orders

In my work, I spend a lot of time thinking about cancer. In toxic exposure and pharmaceutical lawsuits, I have to prove, with a bevy of experts, that a given chemical or drug is capable of causing cancer. In medical malpractice cases involving undiagnosed cancer, I have to prove the cancer was treatable at an earlier stage, and prove how that treatment would have made a difference. I’ve spent hundreds of hours discussing cancer with oncologists, cell biologists, biochemists, immunologists, epidemiologists, and biostatisticians.

 

So pardon me as we depart from the law in this post and talk about the science of cancer and aging. Continue Reading Towards A Unified Theory Of Aging And Cancer