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

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

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

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

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

Oliver complains:

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

I think Oliver has misunderstood the purpose of the chapter. 
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[Update, September 2014: I wrote the below post in February 2012, when a prominent economist and blogger seriously claimed “The most plausible route to the death of football starts with liability suits.” In a mere two-and-a-half years, the tide has turned considerably, and it had nothing to do with liability suits. Jason Kottke recently collected multiple articles by die-hard football fans explaining why they won’t watch the sport any more. More and more people can’t handle the greed, the violence, and the damage — just today, Esquire had a piece on the league’s disgraceful handling of Ray Rice’s domestic abuse. Professional football is dying, and it has nothing to do with lawsuits.]

Tyler Cowen, an economist at George Mason University, has made a name for himself explaining how important it is that things stay just the way they are. (Cf. David Hume) Earlier this week, for example, he was in the New York Times opining that our banking oligarchy can’t be broken up because smaller banks “could make mistakes or take on bad risks without being punished very much in terms of capitalization revenue,” as if we didn’t just loan $1.2 trillion and directly pay $182 billion to bail out these same big banks precisely because they “made mistakes or took on bad risks.” As Paul Krugman aptly summed up one of Tyler’s critiques of a model of macroeconomics,

There’s something about macro that seems to invite this sort of thing: more even than the rest of economics, macro seems afflicted with people who mistake confusion for insight, who think their own failure to understand basic ideas reflects a failure of those ideas rather than their own limitations.

“Mistaking confusion for insight” is one of the hallmarks of attacks on our legal system, with nary a day going by without a prominent politician or the like making a hopelessly ignorant comment about the law, like Rick Santorum’s passionate argument in favor of scrapping the Constitution and replacing it with the Articles of Confederation.

Grantland, launched last year, was premised on the crazy idea that there existed a sizable market of readers who appreciated both long-form journalism and the world of sports. I haven’t a clue if the website is doing well financially, but they’ve been a journalistic success, with fascinating articles like this article on a boxing match in 1810 that set the stage for almost every fighting trope you see today. Just when I think the site is the go-to resource for sports reporting, I see Tyler Cowen (along with Kevin Grier, another economist) bring his ipse dixit style to the subject of tort lawyers and football:

The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away. More and more modern parents will keep their kids out of playing football, and there tends to be a “contagion effect” with such decisions; once some parents have second thoughts, many others follow suit. We have seen such domino effects with the risks of smoking or driving without seatbelts, two unsafe practices that were common in the 1960s but are much rarer today. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

In other words, the old trial lawyers are taking the fun out of everything argument. It’s often trotted out to claim that lawyers are responsible for taking the fun out of playgrounds, so it was only inevitable before someone claimed that trial lawyers posed the greatest threat to our nation: as Cowen and Grier claim, because of lawyers, “American people … might actually start calling ‘soccer’ by the moniker of ‘football.’”

The horror!


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The lines between conscious sedation, monitored anesthesia care, general anesthesia, and life-threatening central nervous system depression are blurry and thin.  As the death of Michael Jackson and prosecution of his personal physician has brought back into the spotlight (I hope), anesthesia medications like propofol are frighteningly dangerous if used improperly.  It’s not like taking an antihistamine and going to sleep for a couple hours. Even the “long acting” procedural sedation agents like Versed and Fentanyl work for at most an hour, whereas the short-acting agents like Propofol last for only a couple minutes.  They have to be constantly administered and the patient has to be constantly monitored.

We review a lot of medical malpractice cases, so it feels like I see the same tragic story once a month, either in the press or in cases at our firm. Recently, “parents of student who died after dental surgery sue for malpractice“:

The parents of a Woodstock teen who died 10 days after losing oxygen during a routine wisdom tooth surgery March 28 in Columbia are suing the anesthesiologist and the oral surgeon involved for medical malpractice, according to court records filed Nov. 30.

The suit claims that Dr. Krista Michelle Isaacs, the anesthesiologist, and Dr. Domenick Coletti, the oral surgeon, were negligent in their care of Olenick and failed to resuscitate her after her heart rate slowed to a “panic level” of 40 beats per minute and her body began losing oxygen.

Yahoo has an article examining the merits of wisdom tooth removal, but it seems the type of surgery wasn’t really the problem, nor the use of improper surgical techniques.  It happened to involve dental surgery, but it could have been any type of surgery; Ms. Olenick’s death was perhaps another example of anesthesia malpractice:

According to Dr. David Fowler, the state’s chief medical examiner, Olenick was first given a standard dose of anesthesia during the procedure that did not “get her deep enough so she was fully anesthetized.” More anesthesia was then administered by Isaacs, which was also standard procedure, Fowler said in an interview.

At approximately 8:05 a.m., Olenick began to experience bradycardia, or a slowing of her heart rate, according to the lawsuit. “A little while later, the oxygen saturation in her blood started dropping,” Fowler said. Shortly thereafter, according to the autopsy report, Olenick went into hypoxic arrest.

The part of Ms. Olenick’s story that raised my eyebrows is how the patient showed bradycardia and then a little later showed a drop in oxygen saturation followed by hypoxia and cardiac arrest.  Bradycardia is a known side-effect of many anesthesia agents (consider this 1997 study on propofol), including Versed, which was likely used in the oral surgery procedure.  (On a comment on a blog called “No Midazolam,” it appears Ms. Olenick’s mother confirmed that Versed was one of the drugs used.)

Once a patient under anesthesia shows bradycardia, that’s a medical emergency, and action needs to be taken immediately. Here’s a medical malpractice case from Texas describing a similar situation:

[D]uring surgery, Mark had progressive bradycardia, an abnormally slow beating of the heart, which is a condition that is consistent with inadequate ventilation. This condition can lead to cardiac arrest. According to Dr. Fromm, if Mark was in good health before the operation and if he had been well-ventilated during surgery, he would have survived a sudden cardiac arrest during the surgery.

Adequate ventilation is critical during any surgery under general surgery, and I suspect that it contributed to Ms. Olenick’s brain damage, but another issue jumps out at me.


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One of the most common situations I see as a personal injury lawyer involves people injured at work because their employer blatantly disregarded OSHA safety regulations. Most everyone knows that workers’ compensation laws provide employers with legal immunity from negligence claims, but common sense suggests that employers remain accountable for reckless or intentional wrongdoing. The law, however, doesn’t always line up with our common sense of ethicals and morals. We’ve been successful in the past holding employers and other companies fully accountable despite the workers’ compensation laws, but unfortunately employers sometimes can get away with manslaughter.

Over at reddit yesterday, a user posted a question under the title My mother was brutally killed at work, is there no chance for justice?

My mother was crushed to death at work, the OSHA report indicates 3 SERIOUS violations on the part of her company and a dozen minor violations. Total Fine: ~$15,000. She was alone when it happened, it wasn’t her duty to be anywhere near the storage area, the guy whose job it was to move the product quit a few days prior and she was essentially told to do his job (without ANY training) or else. Wtf? Its been 7 months now, I’ve spoken to 11 different lawyers with my step father, all of whom said that it wasn’t possible to file a case against them because of labor laws… We just found out today that as of last year the KY legislature passed a bill that stopped any death benefit payments because in a few months my step dad will be 62(age of retirement). My mom was only 50. So not only can we not pursue legal action against the company, but the government death benefit is out the window too.

Am I … insane? Is this some third world Chinese factory? Wtf… Why is this allowable in the US? So this multi-million dollar company pays just 15k in fines and that’s it. No other punitive damages. We cannot pursue any legal action?

It’s a depressingly common situation that we see all the time: some industrial plant or construction site flagrantly violates OSHA safety rules, kills or maims a dedicated employee, and then pays a fine somewhere around the price of a compact car.

Recall the Notre Dame football practice tragedy. Indiana’s Department of Labor, Occupational Safety and Health Administration found that Notre Dame had committed multiple safety violations in the training and use of its scissor lifts to videotape football practice, including:

Knowing violation – By directing its untrained student employee videographers to use the scissor lifts during a period of time when the National Weather Service had issued an active Wind Advisory with sustained winds and gusts in excess of the scissor lift’ s manufacturer’s specifications and warnings, the university knowingly exposed its employees to unsafe conditions.

Serious violation – Notre Dame did not properly train the student employees in the operation and use of the scissor lifts used during football practice.

Serious violation – The scissor lift noted in this incident – owned by Notre Dame – had not been given an annual, monthly, or weekly inspection for more than one year.

Serious violation – Notre Dame did not have the scissor lift it owned serviced as required by the preventive maintenance schedule in the operator’s manual.

Serious violation – Notre Dame did not have an operator’s manual kept on the unit it owned in the weather proof box.

Serious violation –The scissor lift noted in this incident – owned by Notre Dame – was missing some of its warning labels and some labels were faded and weathered.

Total fine? $77,500. And that’s in an egregious, high-profile case that killed a 20-year-old. It was one of the highest fines the Indiana OSHA had levied in years.

It’s thus no surprise to me that the company that killed the reddit poster’s mother was fined only $15,000 for three serious violations. As the federal OSHA website explains:

Serious Violation – A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.

Up to $7,000 for a serious violation that could — and did — kill someone. In this case it seemed the company ordered an untrained employee to handle, alone, some hazardous chemical or equipment, and the penalty is less than the cost of a new Mazda 3.

Which brings us to the core of the redditor’s complaint: that there’s nothing at all they can do to hold the employer accountable. 
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Between our catastrophic injury and birth injury practices, we spend a lot of time at the firm immersed in the science and medicine of brain damage. Just as consciousness and dualism have vexed philosophers for ages (* see my comment), the real causes and treatment of brain injury have remained elusive for generations. There’s a reason for the phrase ‘not exactly brain surgery‘ — brain surgery is notoriously unpredictable.

After reading Jane Rosett’s compelling article in The New York Times about ‘starting again’ after injuring her right temporal lobe in a car accident (sample: “traumatic brain injuries destroy connections between and within people — so how are we to build a self-empowering community?”), and Diane Wyzga’s post about the Going the Distance documentary, I thought I’d write about some of the latest developments in the field. Rosett’s article (and David L. Brown’s documentary) seems to be part of a larger trend in the diagnosing, treatment, and public perception of brain injuries.

Traumatic brain injuries (TBI) are particularly difficult to treat in a meaningful way. Even treatments that seem obvious, like reducing intracranial pressure, don’t work the way we think they should. In April this year, the New England Journal of Medicine published a study that randomly assigned 155 diffuse traumatic brain injury patients to either undergo decompressive craniectomy or standard treatment. The results were surprising: the patients’ intracranial pressure went down and they left the intensive care unit faster, but six months later they scored lower on the Extended Glasgow Outcomes Scale. Sometimes it seems we haven’t progressed much since ancient trepanation: cut a hole in the patient’s head and hope that makes them feel better.

Three months after that study, the Harvard Gazette reported on two studies which may have identified some of the reasons why TBI doesn’t respond to the sorts of mechanical treatments (like surgery to reduce pressure, placing a shunt, etc.) we assume would fix the problem. In short, TBI doesn’t just damage the structures of the brain, it damages the cells on a cellular level:

Bioengineers at Harvard have, for the first time, explained how the blast of an exploding bomb can translate into subtly disastrous injuries in the nerve cells and blood vessels of the brain. …

Papers published in the journals Proceedings of the National Academy of Sciences (PNAS) and the Public Library of Science’s PLoS One provide the most comprehensive explanation to date of how abrupt mechanical forces cause catastrophic physiological changes within the brain’s neurons and vasculature. …

When the brain encounters a jarring force, such as an exploding roadside bomb, its delicate tissue slams against the skull. The result, if the patient survives, can be a temporary concussion, a more dangerous hemorrhage, or long-term TBI, which can lead to the early onset of Parkinson’s or Alzheimer’s diseases. …

Parker’s research has demonstrated that the forces unleashed by an explosion physically disrupt the structure of the focal adhesion complex, setting off a chain reaction of destructive molecular signals within the nerve cells of the brain.

The papers themselves are available online: A Possible Role for Integrin Signaling in Diffuse Axonal Injury and Blast-induced phenotypic switching in cerebral vasospasm.

It’s more than a little surprising to see that an explosion could, in some instances, not injure the structures of the brain, and not even break up the cell, but nonetheless cause changes in the way the cell operates, but that seems to be the case:

The blast from an explosion creates a surge in blood pressure, which stretches the walls of the blood vessels in the brain. To study this, Parker’s team of bioengineers built artificial arteries, made of living vascular cells, and used a specialized machine to rapidly stretch them, simulating an explosion. While this stretching did not overtly damage the cellular structure, it did cause an immediate hypersensitivity to the protein endothelin-1.

That might also explain why war veterans have a higher rate of dementia: not only have they suffered TBI, but they’ve suffered blast-induced TBI, which causes a cerebral vasospasm that induces the protein hypersensitivity. Even better, the researchers identified potential treatments, at least for the integrin disruption, in the form of an enzyme inhibitor administered soon after the blast. 
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In retrospect, it’s obvious: battering your brain and sustaining concussions on a regular basis as part of your job can have severe long-term consequences. I remember back when I played football in school that there was already a long-standing debate over the apparent safety of big, heavy helmets with wire face masks. At first blush, it seemed the answer to the broken noses, broken jaws, and facial and head laceration that had long plagued football was to use modern plastic injection-molding techniques and build bigger helmets with bigger face masks. More padding is safer than less padding, right?

The helmets, though, opened up an entirely new set of tactics in which players would use their own heads — shielded by the hard helmets and face masks — as weapons. If you’re a coach or an owner, why limit players to shoving opponents around when they can use their helmets as a battering ram? The NCAA and NHSFF both quickly picked up on the technique and banned initial contact of the head in blocking and tackling, but the NFL declined.

The effect, in terms of brain injury, was to convert football from a grappling sport like rugby or wrestling characterized by limb and torso fractures into a striking sport like boxing characterized by closed head injuries. Like when boxing started putting on bigger and bigger gloves, the sport is a lot less bloody but a lot more dangerous. As ugly as mixed martial arts fights get, truth is, they’re safer on the brain (PDF of “Incidence of Injury in Professional Mixed Martial Arts Competitions” in the Journal of Sports Science and Medicine) because there are only so many times that you can punch someone in the face with an ungloved hand without giving up because of the pain or because of a broken hand. (“I broke his hand with my face” is more than just a schoolyard excuse.) In contrast, there’s no limit on how many times someone wearing large, soft boxing gloves can batter their opponent’s brain, and a large number of fights today end with a knockout — and the concussion that causes a fighter to stay down for ten seconds.

But, no matter how obvious it may have even been at the time, the NFL continued to deny any connection between routine closed head injuries in football and long-term consequences like dementia or early-onset Alzheimer’s disease. Players believed them; the NFL is undoubtedly in the better position to know.

That all started to change two years ago. From the new Easterling et al. v. National Football League putative class action:

On September 30, 2009, as a part of its continuing active role in disputing and covering up the causative role of repeated concussions suffered by NFL players and long-term mental health disabilities and illnesses, the defendant disputed the results of a scientific study that it funded. On the aforementioned date, newspaper accounts were published detailing (an unreleased) a study commissioned by the NFL to assess the health and well-being of retired players, which found that the players had reported being diagnosed with dementia and other memory-related diseases at a rate significantly higher than that of the general population. Despite the findings of this study, showing that 6.1 percent of retired NFL players age 50 and above reported being diagnosed with dementia, Alzheimer’s disease and other memory related illnesses, compared to a 1.2 percent for all comparably aged U.S. men, the defendant’s agents disputed these findings and continued the mantra in the Press that there is no evidence connecting concussions, concussion like symptoms, NFL football and long-term brain illness or injury, including but not limited to Chronic Traumatic Encephalopathy (CTE), dementia, etc.

The issue was then dramatically brought back into headlines by the suicide of Dave Duerson, who, in an ironic mixture of mental illness and rational foresight, donated his brain to Boston University so they could test it for brain damage. They did, and found signs of chronic traumatic encephalopathy.

The Plaintiffs in the new action — seven former NFL players, including Jim McMahon — allege that the NFL knowingly kept the sport violent and dangerous (which, some commentators argue, is what NFL fans want) and want to establish a class action for:

All former NFL players who sustained a concussion(s) or suffered concussion like symptoms while in the NFL league, and who have, since leaving the NFL, developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player.

The lawsuit seeks money damages, declaratory relief, and “the establishment of a medical monitoring class.”

And that’s where they’ll have a problem.
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[Update: Unfortunately, the “Fair Share Act” passed. Stuart Carpey has some details.]

It’s that time of year again. As The Legal Intelligencer and other sources report, Pennsylvania’s joint and several liability laws — which ensure that the economic damage caused by negligent companies falls on insurers and other defendants proven to have

A tragic story:

SIOUX CITY — A Sioux City bank has filed a personal-injury lawsuit on behalf of a Sioux City girl against the maker of a powdered infant formula, claiming the girl got seriously ill from drinking the reconstituted formula days after she was born in 2008.

According to court documents, Security National Bank alleges the girl, Jeanine Kunkel, now nearly 3 years old, contracted neonatal Enterobacter sakazakii meningitis from the Similac formula made by Abbott Laboratories and suffered permanent brain damage. The bank, as the child’s conservator, seeks monetary damages for her care, suffering and fear of future disease.

Her parents say Jeanine changed drastically soon after drinking the powdered formula, which came in a complimentary gift bag when she was discharged from St. Luke’s Regional Medical Center.

In many ways, it seems like an open and shut case. The child was promptly diagnosed with E. sakazakii meningitis. The Centers for Disease Control and Prevention has found E. sakazakii infections through tainted powered infant formula before (as have the Food and Drug Administration and World Health Organization) and apparently doesn’t know of any other way in which infants become infected.

Moreover, her twin wasn’t infected, despite virtually identical conditions except for the formula. He’s fine. She “doesn’t walk, crawl or roll over. She eats through a tube inserted into her stomach, her father said, because her brain isn’t able to command her throat to swallow. A shunt keeps harmful fluid from building up in her brain.” Twins don’t mirror each other’s health care course, but his good health does help rule out, to some extent, the possibility of other causes.

But there’s a hitch in the case:

Surber and Troy Kunkel, Jeanine’s father, admit tests conducted on the can of powdered Similac didn’t show evidence of Enterobacter sakazakii bacteria, but Sioux City attorney Tim Bottaro said they’re confident that’s where the harmful bacteria came from.

FDA labs tested for but did not find the bacterium in the family’s kitchen, the lawsuit says.

The tort of negligence (which underlies most product liability cases) has four elements, duty, breach, causation, and damages. To recover, a plaintiff must prove them all beyond a preponderance of doubt. Even in strict liability (which underlies the rest of tainted product claims) the plaintiff must demonstrate that the defective product in question caused the harm alleged.

So how does the family prove that the infection which caused her brain damage was caused by the formula when the formula sample itself did not test positive for the bacteria?


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We personal injury lawyers see some recurring fact patterns, particularly for the spinal cord and brain injury cases. The fatigued tractor-trailer driver driving beyond the FMCSR hours. The fully loaded passenger van rollover. The scaffolding collapse at a construction site. Commercial vehicles and equipment drive our modern economy, but they do so with more than enough force to maim or to kill if not used carefully.

But nothing beats alcohol, the “social lubricant,” which can turn even the most mundane situation into a crippling or fatal tragedy. Cars, guns, and bodies of water are inherently dangerous anyway — for any given American, their lifetime odds of dying from one of the three are, respectively, 1-in-100, 1-in-325, and 1-in-9,000 — and the addition of alcohol exponentially increases the likelihood of accidents, shootings, and drownings. A mind-numbing (and soul-numbing) number of our cases involve, in one way or another, the use or abuse of alcohol.

Which brings us to the subject of today’s post:

East Hempfield police said Hershey, a salesman at Imports of Lancaster County, East Petersburg, had taken the Jensens on a test drive when he told Tyler Jensen to pull over so he could show him “how it’s done.” Witnesses estimated Hershey was traveling as fast as 90 mph on the two-lane road when a truck pulled into his path and he swerved and hit an embankment, according to the affidavit filed in the case.

The car rolled several times, ejecting Hershey and the elder Jensen, who sustained severe head injuries and died at the scene.

According to the affidavit filed in the case, Hershey admitted to drinking Bacardi rum prior to the crash. His blood-alcohol level at the time of the accident was .06, below the legal limit of .08, said police. He also tested positive for marijuana.

It’s a horrible story, told in excruciating detail by the article. Hershey is rightfully facing criminal charges, and the car dealership is rightfully facing a civil lawsuit for, among other problems, negligently hiring an individual who “was charged with drunken driving twice in 2002, according to court records,” who before then “pleaded guilty to ‘exceeding the maximum speed limit established by 28 mph,’” and who had separately “pleaded guilty to careless driving and following too closely.” That’s not the person you entrust with the test drives.

Let’s put that aside, and put aside the marijuana, too. (Not least since “tested positive” means he used some amount of marijuana at some point in the recent past, not that he was driving under the influence of marijuana at the time.)


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