Published By: Maxwell S. Kennerly, Esquire

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Almost exactly a year ago, I wrote “Brain Injuries, Not Lawyers, May Spell The End Of Football,” contesting the absurd claim by two economist-bloggers that “The most plausible route to the death of football starts with liability suits.” As I wrote then:

“[L]iability suits” do not arise from the imaginations of personal injury lawyers, they arise from tragic stories and negligent acts. Trial lawyers did not wake up one day and say to themselves, “let’s sue football,” and then spin the wheel of horrible injuries and land on brain damage. Players, their unions, their families, and their doctors noticed a trend among football players to suffer brain injuries and be diagnosed with chronic mental diseases like chronic traumatic encephalopathy at a rate far higher than the rest of the population. …

 If football is abandoned by the parents of the next generation of potential players, it will not be the result of “liability suits” — it will be because the sport is increasingly being perceived, as Cowen and Grier tellingly analogize, as being as risky as “smoking or driving without seatbelts.” If, as they claim, “modern parents keep their kids out of playing football,” it will not be because of “our litigious society” but rather because parents are trying to protect their children from brain damage.

A year later, not much has changed in the NFL litigation, in which thousands of former players allege the NFL failed to take reasonable actions to protect Players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from Players. That’s not surprising given its scope; earlier this week, U.S. District Judge Anita Brody, who is overseeing the NFL Concussion MDL here in Philadelphia, set oral arguments on the League’s motion dismiss for April 9. (The League has argued that, regardless of the merits of the allegations against them, the cases are “a labor dispute the resolution of which depends upon an interpretation of the terms of the applicable [collective bargaining agreements],” and thus the claims are “pre-empted by § 301 of the Labor Management Relations Act” and subject to individual arbitration, rather than civil litigation in the courts. For more on the details of the case, to call Paul Anderson’s blog “comprehensive” would be an understatement.)

Yesterday, Bloomberg BusinessWeek published a thorough, even-handed article about the CTE litigation, putting the litigation as a whole into the proper context, including by identifying the real stakes in the litigation:
Continue Reading Football At The Crossroads Of The Safe Mainstream And The Violent Margins

Several days later, the sadness over Aaron Swartz’s death — and outrage over the prosecution that his family and friends say played a role — still lingers. I wrote my thoughts about the meritless Swartz prosecution right after he was indicted in 2011, and have since updated the post to address the information disclosed since his death. But this post isn’t about the details of Swartz’s prosecution, it’s about him and the criminal justice system we built for him.

In September 2011, a few months after my post went up, I received an email from Aaron thanking me for my post, and asking, “If you have any time, I’d love to get your thoughts on a few things. Would it be possible to have a phone call at some point?” Much has been written about his brilliance and his extraordinary curiosity — which he himself said was all that distinguished him from everyone else — and about his uncompromising stances. I quote his introduction here to note that, when sending an email to a stranger, he was charming and unassuming, and when we spoke he was unfailingly polite.

In the conversation that followed his email, we talked about how the biggest challenge in a prosecution is the psychological stress. I told him to be mindful of the case but to still live his life. I told him, in all seriousness, to read Franz Kafka’s The Trial, because much of what was going to happen was going to be frustratingly incomprehensible. The law has a way of appearing to be rational even when it is being wholly irrational; after a few desperate initial years in law school and early practice, lawyers learn to be stoic and to accept the whims of the whirlwind, but to an outside observer any effort to comprehend the machinery of the law in a mere matter of months would leave them feeling powerless. I’m sure I’m not the only one who recommended it, given the circumstances.

Then we talked about history, politics, productivity, and a little bit of everything. Maybe our conversation was so pleasant because he was exceptional social engineer; reading his eulogies, it seems that most everyone who interacted with him had a similar engaging experience, regardless of the context or the topic. For what it’s worth, my impression was that he was so curious about the world that he was genuinely appreciative when anyone helped him explore an idea.

A few months after we spoke, The Trial showed up on his 2011 Review of Books: 
Continue Reading Lessons from Kafka: Aaron Swartz and Prosecutorial Overreaching (Updated)

Today the Supreme Court holds oral arguments in Standard Fire v. Knowles, a Class Action Fairness Act (CAFA) case. According to the defendant, an insurance company, the case involves plaintiffs’ attorneys “manipulating their complaints to evade federal diversity jurisdiction” by stipulating to the class recovering less than $5,000,000, the CAFA threshold that allows defendants to remove class actions from state court to federal court. According to the plaintiff, an Arkansas homeowner who alleges the insurance company routinely failed to pay for general contractors’ bills in home repairs, the issue here is just another example of the 70-year-old rule that a plaintiff can stay out of federal court by stipulating to recovering only damages below the jurisdictional amount.

I don’t want to discuss the case in detail (many others have; e.g., Alison Frankel has covered it a couple times, and Kevin Walsh discussed an amicus brief filed by a manufacturers’ association, and the lawyers who filed the brief responded), but to address the broader issue raised by the case. Like many plaintiff’s lawyers, I’ve longed been dismayed at the efforts of insurance companies and large corporations to force more and more civil lawsuits into federal court. Nearly three years ago, I summarized some of the supposed reasons why defendants prefer to be in federal court (while discussing the Hertz v. Friend case on diversity jurisdiction):

  • federal juries, by virtue of their larger geographic range, include fewer urban jurors and more rural jurors, and thus (according to lawyers’ lore) will award lower verdicts;
  • the Federal Rules of Civil Procedure place express limits on the amount of discovery available;
  • federal courts are (and were even before Ashcroft v. Iqbal) more prone to grant motions to dismiss (and motions for summary judgment) than state courts.

Is any of that true? Does it make a difference to the bottom line when all is said and done? Who knows, but it’s lawyer’s lore that federal courts are better for defendants while state courts are better for plaintiffs. A lawyer wouldn’t disregard the lore about federal court, much like how a sailor wouldn’t leave port on Friday or a driver wouldn’t race in a green car. For what it’s worth, though, state courts are typically the home of large personal injury verdicts — because the vast majority of wrongful death cases are there — federal juries do indeed award large damages in many cases. In 2012, for example, the second largest non-patent verdict nationwide was $167 million from a federal jury in an employment / sexual harassment case.

But lately the rush to put purely state law cases (like Standard Fire v. Knowles and Hertz v. Friend) in federal court seems to come from a different motivation: to get lawsuits out of fast-moving state courts and into federal courts hobbled by judicial vacancies.
Continue Reading Why Civil Defendants Want To Be In Federal Court: Judicial Vacancies

[Third Update, June 6, 2013: Judge Kane has dismissed the lawsuit. Here’s the order, concluding:

The Governor’s complaint implicates the extraordinary power of a non-governmental entity to dictate the course of an iconic public institution, and raises serious questions about the indirect economic impact of NCAA sanctions on innocent parties. These are important questions deserving of public debate, but they are not antitrust questions. In another forum the complaint’s appeal to equity and common sense may win the day, but in the antitrust world these arguments fail to advance the ball. Plaintiff’s complaint fails on all prongs: it fails to allege commercial activity subject to the Sherman Act; it fails to allege that Defendant’s activity constituted a violation of Section 1 of the Sherman Act; and, it fails to allege that Plaintiff suffered an antitrust injury. On thorough review, this Court can find no basis in antitrust law for concluding that the harms alleged entitle Plaintiff to relief.

The Court thus dismissed the claims on standing, on their merits, and on even the factual predicate that antitrust law was implicated. Like I had said before, “Pennsylvania still has problems showing a nexus between that antitrust violation and a viable claim, regardless of whether we phrase it as a matter of standing, pleading, or causation,” and that’s essentially what the Court held.]

[Second Update, February 8, 2013: The NCAA has filed its brief arguing that the NCAA’s enforcement action was not subject to antitrust law, that it was procompetitive, that the complaint fails to allege anticompetitive effects in a relevant market, and that the plaintiff lacks standing.]

[Update: Obviously, there’s been plenty of coverage. See this post at SB Nation, this report at Reuters, and this story at Morning Call, the latter two of which quote me. Others differ on the standing issue (in essence, they assume a State always has standing to challenge any alleged antitrust violation), but most everyone agrees the case is a tough sell. See my comment at SB Nation — even if we begin by assuming the NCAA violated antitrust laws, given the indirect nature of the claim here, Pennsylvania still has problems showing a nexus between that antitrust violation and a viable claim, regardless of whether we phrase it as a matter of standing, pleading, or causation.]

I spent plenty of time on this blog discussing Penn State’s civil liability following the Jerry Sandusky abuse scandal, with most of my thoughts in this post. At this point, the Freeh report was rightly damning, and PSU has, as I hoped they would, brought in outside help (Ken Feinberg, the most prominent mediator in the country) to try to resolve the claims.

I didn’t dwell on the consent decree Penn State entered into with the NCAA sanctions — as they say, a deal is a deal, and that’s just as true for a university and an athletic association, except to point out that there was no reason for the NCAA to care that a minority of the Penn State’s Board of Trustees disagreed with the decision to enter into the consent decree. Corporations act through their management, chosen by their Board of Trustees; the thoughts and feelings of a minority of trustees aren’t relevant to anyone dealing with the party.

Earlier today, the issue returned with a vengeance, as Governor Corbett announced his intention to file, on behalf of the Commonwealth of Pennsylvania, an antitrust lawsuit against the NCAA. When a reporter at the press conference asked how the Governor could have standing, his chief counsel responded they were using parens patriae standing. Here’s a PDF copy of the complaint. In essence, Corbett, claiming to act on behalf of Commonwealth of Pennsylvania (I write “claiming” because, as described below, federal law authorizes the attorney general, not the governor, to act) alleges the NCAA’s sanctions against Penn State violate federal antitrust law. The real meat of the lawsuit starts on page 30. The claim is, in essence:

[T]he sanctions against Penn State do not even ostensibly serve the NCAA’s stated goal of protecting the fairness of intercollegiate athletic competition. Rather, they were taken for the purposes of debilitating a once-powerful football program, enhancing the NCAA’s own reputation, and boosting the competing football programs of cetrain member colleges and universities by removing from competition one of the leading competitors.

Grab a cup of coffee, we have a lot to talk about here.
Continue Reading 4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground

My workload has been heavy lately, as has life in general, so I figured it was time for a diversion. It’s the end of the year, and thus unfortunately almost time for more deceptive “most frivolous lawsuits” lists, so here’s a retrospective of the worst lawsuit defenses I recall from 2012, a retrospective on the evils of water-soluble chalk, the violent propensities of classic Kung Fu movie fans, and the layman’s understanding of how a penile implant should work.

(5) Artist Drawing On Sidewalk With Chalk Deserved To Be Handcuffed, Arrested And Prosecuted For “Blocking Pedestrian Traffic”

One Saturday night down at 4th and South Street here in Philadelphia, artist Emily Hamilton Epstein was coloring the sidewalk with water-soluble chalk, the same harmless stuff my kids use that washes away with the rain. The complaint she eventually filed said:

[She] continued to draw for several hours, during which time she never blocked or obstructed public passage on the sidewalk. During that same period of time, many members of the public, including Philadelphia police officers, passed by and looked at her artwork — some commenting on the artistic quality of and the message communicated by her work — and no one ever advised the plaintiff that she was violating any law.

Isn’t it nice to see police officers walking around and encouraging civic participation like public art? For whatever reason, though, the chalk really, really bothered a particular Philadelphia Police Officer with a history of lawsuits against him. The officer allegedly demanded Epstein stop drawing, “grabbed and pushed” her, and then “applied handcuffs in an excessively tight manner,” after which he charged her with — drumroll, please — “obstructing the highway.”

The Philadelphia DA’s office took the case all the way to a non-jury trial, where the municipal judge brought sanity to the situation and found her not guilty. Epstein later sued — wouldn’t you? — and some poor fellow at the Philadelphia City Solicitor’s office had to come up with a defense. He settled on demanding “strict proof” that the chalk, which had long since washed away, was really water soluble:

[The] allegation regarding the type of chalk she was using is DENIED, because Answering Defendants do not have such knowledge.

The case settled three months later. 
Continue Reading The Worst Lawsuit Defenses of 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)

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)

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?

One of the points I’ve made several times on this blog is that, for all the times liberal or progressive judges are accused of “judicial activism,” many “conservative” judges (usually members of the misleadingly-named The Federalist Society) are more than happy to ignore their own claimed principles of judicial restraint when it serves their purposes. Justice Scalia has made a habit out of it, completely ignoring his own “textualism” and “originalist” approach when it suits his political purposes, while other Judges content themselves to sporadic outbursts of judicial activism when the stakes are high. I gave an example of conservative judicial activism three years ago when the United States Court of Appeals for the District of Columbia ignored several recent Department of Defense regulations, a sixty-year-old Act of Congress, and a basic principle of federalism to dismiss lawsuits brought by more than a dozen Iraqis who were “beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused” by private contractors working as interpreters and interrogators at Abu Ghraib prison.

This week, another example jumped into the public consciousness, when Washington Post columnist Steven Pearlstein wrote about “The judicial jihad against the regulatory state,” using the recent Homer City Generation v. EPA opinion written by Judge Brett Kavanaugh, who was appointed to the court by President George W. Bush after serving the Republican Party to help impeach Bill Clinton and to fight Bush v. Gore in 2000. The American Constitution Society’s blog chimes in with another example of Judge Kavanaugh attacking the Environmental Protection Agency (and, to be fair, with a counterexample of Judge Kavanaugh blocking the State of South Carolina from implementing its “Voter ID law,” apparently another disenfranchisement tool like Pennsylvania’s Voter ID law). Ed Whelan at National Review Online attempted a tepid defense of Judge Kavanaugh’s opinion, but in the end he merely parroted Judge Kavanaugh’s own assertion that he was following the will of Congress.

Now on to Homer City Generation v. EPA. The case involves the EPA’s attempt to implement the Clean Air Act, specifically the parts relating to upwind States’ obligations to ameliorate pollution to downwind States. Despite the length of the opinion (60 pages) and the dissent (another 44 pages), and the case’s tortured procedural history, the case isn’t that complicated. As you read it, bear one important principle of federalism in mind: the Supreme Court has held that if a statute is “silent or ambiguous with respect to the specific issue,” and if “the agency’s answer is based on a permissible construction of the statute,” a court must defer to the agency’s interpretation.” Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837, 843 (1984). Judicial deference to agencies is one of the key components of our federal system today, and it is regularly used to dismiss challenges to federal agency actions.Continue Reading More Judicial Activism By Federalist Society Members On The D.C. Circuit

Scientific American’s “Literally Psyched” blog had a post recently on “The Great American Novel and the search for group cohesion.” I don’t quite agree with the thesis — that the concept of the ‘Great American Novel’ was a means by which America unconsciously mended the wounds of the Civil War — but the post does have a number of important reminders about human psychology. The Milgram Experiment and the Stanford Prison Experiment proved long ago how the actions of ordinary people can be contorted and distorted into doing terrible things by mere circumstance.

That much is well known; what’s intriguing now is how easily people assign themselves into groups and adopt an “us” versus “them” mentality. As recounted at Scientific American:

Take something known as the minimal group paradigm, a concept that basically says exactly what it is: a way of creating groups, and cohesive groups at that, by using something as minimal as possible to tie them together.

One of the most famous approaches is known as the Dot Estimation Task. The setup is simple. You show a bunch of people some dots, be it on a computer screen or a piece of paper, and ask them to estimate how many dots they’re seeing. You then tell them—completely arbitrarily—that they have either under- or over-estimated the actual number. And then comes the kicker: you tell them that under- and over-estimation is a trait, and that they belong to a group of other understimators or overestimators, respectively. That’s it. That’s the whole thing.

What’s funny is how easily people will start bonding with others they believe share similar characteristics. The people chosen by the researchers to be arbitrarily told that they were “underestimators” or “overestimators” started behaving as if the division were real and meaningful, even though the “division” not only involves a meaningless trait, but is in fact wholly invented by the researchers, who make up the results at random.

What’s truly scary is how you can then take those same arbitrary groups and then make them not only more favorable to their (made up) peers, but also imbue them with a sense of superiority by simply telling one of the groups (again, at random) that they’re better at estimating than the other group. Do that, and the divisions become even more stark:

A 2006 experiment told participants that overestimators were actually more accurate than underestimators on the task—and that this accuracy seemed to relate to other tasks as well. Participants then rated both their own and the other estimator group on 24 unrelated traits and finally, completed measures of social esteem and social identity.

Not only did people evaluate their newly acquired in-group more favorably than their newly-minted competitors, but those who thought themselves to be of higher status (the overestimators) exhibited a larger bias than their underestimating counterparts. What’s more, the more positively the in-group was evaluated, the higher was the social esteem of its individual members—and the higher their subsequent social identity.

That is to say, if you create an arbitrary group, and tell them that trait makes them superior, their own group dynamics will further reinforce the superiority of that trait.

Yesterday, the United States Supreme Court was asked, in a tangential way, about that problem. Since Witherspoon v. Illinois, 391 U.S. 510 (1968), prosecutors in capital murder cases have been entitled to a “death-qualified jury.” In Wainwright v. Witt, 469 U.S. 412, 421 (1985), the Supreme Court essentially moved it from “death-qualified” to “death-guaranteed,” holding that a juror may be excluded if his views on capital punishment could “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath” Witt, 469 U.S. at 424.
Continue Reading Group Cohesion And The Hesitant Executioner