Published By: Maxwell S. Kennerly, Esquire

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Just in time for Mesothelioma Awareness Day (which is tomorrow), yesterday the Wall Street Journal recycled the same canned attack on the Philadelphia Complex Litigation Center that the Chamber of Commerce and other special interests have been pushing for some time. (See here and here for more about the attacks on Philadelphia’s courts.)

Ashby Jones at the Wall Street Journal retreads over Judge Pamela Dembe’s remarks about out-of-state plaintiffs from early 2009, taking the Chamber of Commerce’s bait hook, line and sinker:

When the Philadelphia court system faced budget cuts in early 2009, an influential judge there invited plaintiffs to bring the court their cases — and their filing fees.

The plan backfired.

After Philadelphia Court of Common Pleas Judge Pamela Pryor Dembe told defense lawyers she wanted to “take business away from other courts” by making Philadelphia’s more attractive to lawyers, “mass-tort” filings—made up mostly of asbestos and pharmaceutical claims—skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage.

“Buried in lawsuits and scrambling to repair the damage” of 2,700 filings sounds just terrible. As the WSJ ominously notes, “Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month.”

As Churchill said, “truth is so precious that she should always be attended by a bodyguard of lies.” Let’s unpack this supposed “surge” in filings, and figure out what’s causing the Philadelphia Complex Litigation Center to be “buried in” a “blacklog” of 6,100 lawsuits.

First, let’s look at what those 6,100 lawsuits are. You can see the numbers yourself by going to the “case list” under each type of mass tort on the CLC’s website. 2,294 of the pending cases, or more than one-third of the total, are Reglan cases. 1,843 of the pending cases, nearly one-third of the total, are Yaz / Yasmin / Ocella cases.

Judge Dembe’s remarks about making the Philadelphia mass torts center so efficient that parties preferred it over other courts (a laudable goal; notice how Judge Dembe’s remarks were made to defense lawyers) were in March 2009. Check those case lists again and you can see when the lawsuits started piling up. The Yaz / Yasmin lawsuits against Bayer in Philadelphia state court began in July 2009, but fewer than twenty had been filed until October 2009. That uptick had nothing to do with Judge Dembe: it had to do with the August 14, 2009 issue of the British Medical Journal, which published two studies (here and here) showing Yaz and Yasmin had twice the blood clotting risk of comparable hormonal contraceptives. Similarly, only two Reglan cases were filed against Wyeth and Teva before October 2009, when they started coming in quickly — because in February 2009, the FDA had mandated a “black box” warning on Reglan for the possibility of tardive dyskinesia.

Following so far? Reglan and Yaz — cases primarily against Bayer USA and Wyeth, both Pennsylvania companies (Wyeth is literally in Philadelphia) — together account for just over two-thirds of the overall Philadelphia mass torts cases. Both of these mass torts were prompted not by anything Judge Dembe said, but by the public revelation that the drugs were far more dangerous that the pharmaceutical companies had said. 
Continue Reading WSJ Clueless About Philadelphia Mass Torts Lawsuits

Last month I was reading an article over at The Millions when I stumbled over to their “Top 10” list, a clever little tool that shows which books The Millions’ overeducated readers have been buying via the site’s Amazon affiliate links. #2 was A Naked Singularity, a concept I recognized from theoretical physics. So, I checked out the blurb on Amazon:

A Naked Singularity tells the story of Casi, a child of Colombian immigrants who lives in Brooklyn and works in Manhattan as a public defender–one who, tellingly has never lost a trial. Never. In the book, we watch what happens when his sense of justice and even his sense of self begin to crack–and how his world then slowly devolves. It’s a huge, ambitious novel clearly in the vein of DeLillo, Foster Wallace, Pynchon, and even Melville, and it’s told in a distinct, frequently hilarious voice, with a striking human empathy at its center. …

(FYI, that Amazon link is an affiliate link for The Millions; their site is free to use, so give back when you can.)

In case you didn’t get the message, the blurb continues with explicit comparisons to Infinite Jest and to William Gaddis’s “slow going” A Frolic of His Own. This is high literature for smartypants, a tough mudder, Rubik’s Cube, and QWOP of a book. The Millions’ profile of the author, Sergio De La Pava, compared it to “Dostoevsky and Melville and Woolf.” All of that together was just about enough to make me give up and read John Grisham’s The Litigators instead, but then there was this enticing description in the review:

To call it Crime & Punishment as reimagined by the Coen Brothers would be accurate, but reductive. Better just to call it the most imaginative and exciting and funky and galactically ambitious first novel to come down the pike in I don’t know how long.

It’s $5.13 on the Kindle, so I bought it.

Like the reviewer at The Millions, I made it about forty pages in, liked it, but then wondered if it was really worth investing the time and energy needed to finish a book that I realized, by the slow movement of the progress bar on the Kindle, was 688 pages. That’s when I actually read The Millions review, learned that the author is in fact a public defender in Manhattan, and committed to making the long haul through the book. This review follows.
Continue Reading Book Review: “A Naked Singularity,” Perfectionism and Frustration In The Law

Few words convey the ability of modern medicine to do harm like “Thalidomide.” It wasn’t the first time that a supposedly harmless medicine wreaked havoc: in 1937, improperly prepared “Elixir sulfanilamide” killed more than a hundred people, serving as the impetus for the 1938 amendments to the Federal Food, Drug and Cosmetic Act, which gave the FDA its first true power to regulate medicines, including requiring all drugs be tested on animals before marketing, with the data sent to the FDA for review. But the Thalidomide birth defects crisis put a new face on the dangers of modern pharmacology, revealing to the world that dangerous medicines could not only poison, but could alter humans’ very structure, causing birth defects like shortened or missing limbs, heart defects, and damage to ears, eyes, and the brain.

The United States was spared the worst of the damage; though millions of doses had been given to patients in clinical trials, Dr. Francis Oldham Kelsey, one of the few physicians at the FDA reviewing drugs at that time, refused to approve the drug — despite considerable corporate pressure — for use in the United States without further testing. The rest of the world wasn’t so lucky, with an estimated 10-20,000 victims born with congenital deformities.

Last Friday, Gruenethal, the German pharmaceutical firm responsible for the drug, claimed to be making public apology for its sins a half-century ago, but it left out the most basic component of a genuine contrition: the admission of fault. Instead, as Sir Harold Evans explains:

“Grünenthal acted,” [the company’s chief executive] said, “in accordance with the state of scientific knowledge and all industry standards for testing new drugs that were relevant and acknowledged in the 1950s and 1960s.” That was flatly untrue, a product of either deep-rooted cynicism, belying his whole apology, or of appalling ignorance. Grünenthal has propagated the big lie for 50 years, retailing the notion that reproductive tests were unnecessary because nobody could possibly have realized in the fifties that a drug could penetrate the placental barrier and reach the fetus. …

It is 39 years since, as editor of the Sunday Times of London in the early seventies, I was associated with thalidomide investigations. Our survey of the scientific literature, consultations with reputable pharmaceutical companies and independent specialist advice swiftly found that reproductive studies were routinely done in the 1950s, because it was widely recognized that a drug could indeed reach the fetus. The tranquilizers in direct competition with thalidomide were all tested for teratogenic effects and the results published. If reproductive tests had been done on thalidomide, they would not necessarily have shown precisely what deformities would be produced, dependent on the time of ingestion in relation to the development of the fetus, but they would certainly have shown that drugs could endanger unborn children in some way.

As much as the teratology of drugs shocked the world, it certainly wasn’t news to pharmaceutical researchers. Hoffman-LaRoche, Pfizer, SmithKline, and all the pharmaceutical companies had done reproductive testing routinely since the 1940s. The need for the testing and the methods for doing so were all well-known and well-published. Grunenthal didn’t bother, and led licensees in other countries to believe the testing had been done, misrepresented the conclusions of its own internal researchers, many of whom said that more testing was needed, and ignored how one of its own employees had given birth to a child without ears. The company, Sir Evans concludes, “covered up a crime against humanity for more than 60 years.”Continue Reading Forgetting The Lessons Of The Thalidomide Birth Defects Crisis

Yesterday, the U.S. Chamber Institute for Legal Reform released its “2012 State Liability Systems Ranking Study,” which asked lawyers and senior executives at companies with over $100 million in annual revenues what they thought about being sued. That’s like asking Yankees fans what they think about the Red Sox.

Seriously, here’s the “Methodology” for the Chamber of Commerce’s “study:”

The final results are based on interviews with a nationally representative sample of 1,125 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at public and private companies with annual revenues of at least $100 million.

Does anyone doubt what a bunch of lawyers for big corporations are going to say?

Unsurprisingly, the Chamber of Commerce used these meaningless results from a hopelessly biased survey to spam the Internet with press releases purporting to be tailored to individual states, like this release for California, this release for Pennsylvania, this release for Illinois, this release for West Virginia, and this release for Florida. The highlight of each release was the pro forma quote from Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, who has apparently served her entire legal career in Washington D.C. as a lobbyist. Here’s her deep and sophisticated understanding of the civil litigation environment in each of those five states:

  • “Plaintiffs’ lawyers bring cases in California because the state’s courts rubber-stamp class actions and juries award outsized paydays,” said Rickard.
  • “Pennsylvania stands geographically between the nation’s worst legal climate in West Virginia and its best in Delaware. Unfortunately, the state is heading more in West Virginia’s direction by allowing plaintiffs’ lawyers to ‘forum shop’ for favorable venues like Philadelphia to cash in,” said Rickard.
  • “Illinois continues to suffer from the negative reputations of courts in certain counties, like Cook, Madison, McLean, and St. Clair, which still invite lawsuit abuse and produce jackpot jury awards,” Rickard said.
  • “West Virginia continues to suffer from outrageous verdicts, lack of meaningful appellate review, an overzealous attorney general’s office, antiquated laws, and frivolous lawsuits,” said Rickard.
  • “Florida’s litigation climate can be attributed in large part to its notorious reputation for exorbitant jury awards,” said Rickard.

“Human sacrifice, dogs and cats living together, mass hysteria!” said Dr. Peter Venkman.

But here’s the incredible part: the hopelessly biased study of corporate lawyers showed that lawyers for big corporations are overwhelmingly satisfied with state courts. More than half said their state court was “excellent” or “pretty good.” A whopping 90% of respondents listed their local jurisdiction as “excellent,” “pretty good” or “fair.” It’s as if you polled a bunch of Yankees fans and 90% said the Red Sox were an excellent, pretty good, or fair team.

When asked to come up with the “most important issues for state policymakers,” the respondents struggled to come up with issues to complain about. In the end, the most common complaint — at a mere 5% of respondents — was to impose more limits on discovery. For all the hoopla about “frivolous lawsuits,” only 4% of respondents could even think to mention that. That finding lines up with the finding of another study The Pop Tort pointed out, in which a survey of businesses found that “Cost and Frequency of Lawsuits/Threatened Lawsuits” was the sixty-fifth highest priority for businesses, just below “Solid and Hazardous Waste Disposal.” [Update: A commentator notes, correctly, that this study was more focused on small businesses and that “cost of liability insurance” ranked higher. More discussion on that in the comments.]Continue Reading Chamber Of Commerce Study: Big Business Says Tort Reform Not Needed

[Update: Despite still lacking adequate documentation, Viviette Applewhite was granted her Voter ID. So that’s the solution for the 400,000+ Pennsylvanians without adequate documentation to obtain a photo ID: they need only convince a team of lawyers to represent them for free, file a high-profile case that attracts national media attention, litigate it through trial, and then the Commonwealth will say that the documentary requirements it imposed didn’t matter anyway. If Applewhite can get Voter ID without having the adequate documents, what’s the point of the law in the first place? Are there still people out there that think this law has more to do with voter fraud than with erecting barriers to make it harder for the elderly, students, and the impoverished to vote?]

Yesterday Judge Robert “Robin” Simpson of the Pennsylvania Commonwealth Court released his opinion on the lawsuit challenging PA’s new Voter ID law. It was, to put it mildly, a disappointment: the request for an injunction (and thus restoration of the old requirements) was denied.

I’ve written about the abysmal Voter ID law — passed to suppress votes by senior citizens, college students, and the impoverished — twice before, once in terms of an embarrassing attempt to intervene in it by right-wing activists, another in terms of Representative Turzai’s amazing admission that the purpose of the law was to hand victory to Romney in November. If you don’t know the sinister purpose behind the law, read those posts.

As Ari Berman covered in depth, the trial over the injunction revealed the law was even worse than we thought. Potentially 1 million or more registered voters were affected by the new law, of whom nearly 400,000 don’t have the adequate underlying documentation to obtain photo identification that passes under the law. In addition to voters not knowing anything about the new law, it turned out that the Commonwealth didn’t know much about the law either, and was woefully unprepared to actually implement it. As but one example, the Commonwealth has only allocated funds for 75,000 voter ID cards, even though 10 times or more people may need them.

To the extent anyone had any genuine doubt, the evidence at trial reinforced that there was no need to rush this law into effect in the last few months before the election, because there is no evidence of in-person voter fraud in Pennsylvania, nor even a clear hypothetical example of how it could be accomplished beyond a handful of votes without the help of dozens or hundreds of Judges of Elections (at which point the Voter ID law is worthless, too). Thus, there’s obviously plenty of harm in letting the new law be applied and no harm in just restoring the status quo in following the voting rules that have been used in Pennsylvania for as long as anyone can remember, and thus ample grounds for an injunction this election while the larger constitutional questions are sorted out.

But that’s not how Judge Simpson saw it. 
Continue Reading The Elephant In The PA Voter ID Trial Court Opinion

I must confess no interest in attending Insane Clown Posse’s Gathering of the Juggalos, but that’s the beauty of America: if someone wants to paint their face like a clown and drink Faygo all night long, that’s their right.

Or is it? On Friday, the Insane Clown Posse announced that they had hired counsel to investigate their designation as a “hybrid” gang by the Federal Bureau of Investigation’s National Gang Intelligence Center’s 2011 National Gang Threat Assessment, and they’ve set up a website asking for their fans to provide information if they’ve been stopped by federal law enforcement agents, or subjected to any sort of increased sentencing or other denial of rights, as a result of their “Juggalo” status.

It’s actually old news that the FBI considers the Insane Clown Posse to be a gang — Spencer Ackerman reported it back in October 2011 — but it seems the government is really moving forward with it with the recent arrest of Mark Carlson, formerly of the U.S. Marshal Office’s New Mexico’s Most Wanted list, who, as Camille Dodero reported, was identified as “a Known Gang Member of the Insane Clown Posse ‘Juggalo.’”

Let’s start with the obvious: nobody, not even the FBI, is proposing that being a Juggalo is itself a crime. But one of the ICP duo summed up the problem at his seminar announcing the effort:

The judge is not going to sentence [people like Mark Carlson] as a civilian,” Violent J told the crowd, referencing that case and others like it. “The judge is going to sentence you as a gang member selling weed.”

It’s a legitimate concern; I certainly wouldn’t want anyone to be subjected to enhanced penalties simply for identifying themselves as a reader of my blog, so I can respect why he’s concerned. (Dodero has a longer interview with them here.) So, can the government actually act on its designation of the Juggalos as a gang, or is there a right to be a Juggalo? 
Continue Reading The First Amendment Right To Be A Juggalo

Over on Twitter, where all the major debates of our time are reduced to the length of text messages, I got into a discussion with Ted Frank. For those of you who don’t know Ted Frank, he’s a prominent “tort reform” advocate. Ted and Walter Olson are among the only “tort reform” advocates who offer substantive commentary and aren’t just whining hypocrites, which is why you’ll see them (as Point of Law and Overlawyered) in my blogroll over to the right.

One thing led to another — like text messages among adolescents, Twitter discussions rapidly devolve either into mutual admiration or mutual destruction —  and I criticized him for always advocating “substantive policy” that was usually little more than an excuse to deny injured persons compensation. In response, he challenged me to name “a non-substantive policy [he has] propounded,” to which I responded that his “injury plaintiffs should always lose” arguments were an example. I read his blog; whatever the issue is, he’s always against injured people and in favor of negligent corporations. I then challenged him in return to give five examples of jury verdicts over $1 million (or appellate court decisions) in favor of injured plaintiffs, with which he agreed.

I don’t think I’m being hypocritical on this point; I’ve been more than willing on my blog to discuss where I thought a plaintiff’s case was rightly dismissed (see #2 and #8 on this list of drug companies’ favorite court decisions of 2011, see this post concluding that Arthur Alan Wolk’s case against Walter Olson was rightly dismissed, and see my recommendation that it be made harder to file patent infringement lawsuits). I didn’t consider this a particularly difficult challenge: you don’t have to look far to find a company recklessly destroying people’s lives in the name of greed.

For example, just last week a brain injured woman in California won a $20 million jury verdict against commercial trucking company J.B. Hunt. In the case, the big rig truck driver ran through a red light, broadsided her at 35 to 40 miles per hour, then cowardly fled the scene, leaving her for dead. Did I mention that the driver had been fired twice before by J.B. Hunt, including for running over a fire hydrant and flooding an intersection, and that he had been fired from multiple trucking jobs over the past decade for safety violations, violent behavior, and attempting to cover up accidents? Scrooge trucking company offered only $2,000,000, far less than the woman’s future medical expenses, to settle the case.

Frankly, I don’t think it takes much to admit that J.B. Hunt deserved to get walloped in that case, both vicariously and directly, or to find similar cases where, gosh darnit, the plaintiff was right to bring a lawsuit and deserved more than a million dollars.

Ted Frank responded to my challenge with a list:

1. Dewey v. Volkswagen AG (3d Cir. 2012).

2. http://blog.chron.com/newswatch/2012/06/jury-awards-2-2-million-verdict-against-drunk-driver/

3. Gutierrez v. Girardi, 194 Cal.App.4th 925 (2011).

4. Burrow v. Arce, 997 SW 2d 229 (Tex. 1999).

5. Rufo v. Simpson, 103 Cal.Rptr.2d 492 (2001)

And I sighed. 
Continue Reading Tort Reform “Policy”: Injury Plaintiffs Should Always Lose

Back in January, I wrote about the strange world of “rights” we were entering, in which the First Amendment, the quintessential American right that ensures the protection of all the others, was losing its power as the sword of the people, instead being fashioned into the shield of the powerful:

Don’t believe all that hooey about the Roberts Court being principled because they are protective of First Amendment rights. They’re not, not unless a corporation is the one “speaking” and the “speech” is for profit, or unless the speech poses no threat to corporate interests, like dog-crushing videos or homophobic protests of soldiers’ funerals. Peacefully protest Wall Street and you’ll be pepper-sprayed in the face, with free speech rights that are ambiguous at best and rights against police violence almost impossible to enforce.

The Orwellian world in which socially-useful speech results in criminal convictions or indefinite detention while villainy and corporate manipulation is protected stretches down to our trial courts. While we’re supposedly on a free-speech kick, with the Supreme Court recently affirming the right to lie about winning the Congressional Medal of Honor for profit and advancement, an underage sexual assault victim faced a contempt petition for taking to Twitter and saying her assailants were offered a plea bargain that was “a slap on the wrist.”

Savannah Dietrich, a 17 year old high school student in Louisville, Kentucky, was sexually assaulted by two of her peers, who apparently saw her unconscious at a party and so assaulted her, took pictures, and forwarded them around to their friends. Luck struck the perpetrators thrice, however, first in committing their crimes before turning 18, second in the prosecutor not electing to try them as adults, and third in the prosecutor offering them a plea bargain that was, apparently, quite limited in its proposed punishment.

Under Kentucky law, all juvenile court proceedings are confidential (KRS 610.340) and closed to the public (KRS 610.070), with an exception for certain people connected to the case including the victim. Details are thin on this point, but, as the Courier-Journal cites Savannah, at the hearing in which the plea bargain was offered, the judge “admonished everyone involved not to speak to anyone about what had happened in the court or about the crime in general.”  Afterwards, Savannah — apparently with a full understanding of the potential consequences, noting that the court could “lock me up,” and after reviewing the confidentiality statutes herself — tweeted the perpetrators’ names, and said that she felt the plea bargain offered nothing more than a slap on the wrist.  
Continue Reading Savannah Dietrich: A Right To Lie, But Not To Criticize A Plea Bargain?

[September 20, 2012: This post has been updated at the end to include comments on Judge Posner’s review, Brian Garner’s response, and the volleys between Scalia and Posner.]
 
 
 
It sounds like such a good idea: the pre-eminent legal lexicographer of our time and a Supreme Court Justice together writing a large, detailed treatise on, as they say, “what, in our view, courts ought to do with operative language” of regulations, statutes, and court opinions.
 
 
 
The result of this collaboration between Brian Garner and Justice Scalia, Reading Law: The Interpretation of Legal Texts, billed as “systematically explain[ing] all the most important principles of constitutional, statutory, and contractual interpretation” through a “textualist” approach, does not live up to the hype.  It makes one big mistake, a problem that should have been obvious of at least December 12, 2000.
 
 
 
Simon Chester at Slaw has the most thoroughly research review of the book with the broadest perspective, even catching some errors. Stanley Fish rightly points out that textualism’s claim to being the only objective, apolitical form of legal interpretation is rubbish. As Scott Greenfield recognizes,

They acknowledge that the canons, even their own beloved textualist rules, can conflict, but resolve the problem with the facile resort to the one which gives the text its fairest meaning. Aha! The dreaded judgment call that gives rise to a judge imposing his values over competing values. The very method they deride unmercifully throughout the introduction. Go figure.

That is, of course, an intrinsic problem with claimed “textualism” — if the text is less than pellucid, you get to go by what you had for breakfast — but Tony Mauro’s report reveals an even deeper problem with the work as a whole:

Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. “That is a false charge,” Garner said Thursday, adding that Scalia is probably “the most consistent and principled” justice in terms of following the text wherever it leads him.

Right there, in one sentence, Garner dooms his magnum opus to the overflowing dustbin of legal history, a mere reference for useful case law but not a credible source of analysis, a work the importance of which will not outlast Scalia’s tenure, if that long.
Continue Reading Scalia On Reading Law: The Fox On Guarding Henhouses