Tuesday, September 30, 2014

Brain Injury Association seeks amicus status in NFL Concussion Litigation

The Brain Injury Association of America has moved to intervene as a friend of the court in the NFL concussion litigation.  Federal District Judge Anita Brody approve the proposed settlement as fair for the agreement to become effective

In its Memorandum of Law supported by the declaration of Doctors Brent Masel and Gregory O'Shanick two specialists in traumatic brain injury, the BIAA offers its aid to the court.  The Association is skeptical of the proposed settlement on two counts:

1) Numerous physical and behavioral consequences of TBI are excluded
from the list of qualifying diagnoses for treatment and compensation
under the settlement.

The physicians explain that a "mild TBI, also known as a concussion, is a complex pathophysiological process induced by biomechanical forces to the head or to another part of the body that transmit to the head. The injury produces an alteration of brain function that results in a wide range of neurological, physical, cognitive, and neuropsychological impairments. These impairments can appear on an intermittent or persistent basis immediately or as many as ten or more years after injury."

2) The settlement’s approach to diagnosis of neurocognitive impairment
is deeply flawed and will serve to exclude retired NFL players and
limit their access to medical benefits and compensation.

Masel and O'Shanick explain that the
"determination of eligibility is heavily weighted towards those with severe memory dysfunction and/or evidence of neuromuscular abnormality, which is reflected in the reliance on neuropsychological evaluation in isolation from other indices of functional impairment in day-to-day settings (including information from reliable family members, etc.). In addition, the specification of a basic neurological evaluation excludes the abundance of literature on the multiplicity of other neurological abnormalities potentially present after mild TBI that would be undetected by a “basic” neurological examination. To be maximally effective at identifying those players with residual deficits, it is well accepted by the brain injury professional community that an approach that is more holistic, human-based, and less linguistically reliant is preferred. A more broadly based performance assessment that will not under-estimate pre-morbid intelligence for a personal baseline TBI comparison is needed. Such subtleties reinforce the need for clinical experience to make proper judgment in these assessments."

Sunday, September 28, 2014

Wisconsin will enact voter ID law denounced as 'recipe for chaos' | World news | theguardian.com

Wisconsin will enact voter ID law denounced as 'recipe for chaos' | World news | theguardian.com:

by Zoe Sullivan // The Guardian

"A controversial voter ID law in Wisconsin, which critics fear will disenfranchise thousands of voters in the November midterm elections, must be implemented after a federal appeals court turned down a request to re-hear a legal challenge "en banc".

The Seventh Circuit Court of Appeals in Chicago declined to take up the application to hear the challenge before its full panel of judges. On 12 September, three judges stayed an injunction issued by a district court that had prevented the law’s implementation.

With less than six weeks to go until the 4 November midterms, voter-rights advocates fear chaos as people rush to get the required identification, and confusion at the polls as election workers and voters struggle with the new rules.

Previous testimony in the case indicated that about 300,000 people who had previously been eligible to vote will have difficulty obtaining the identification now needed to cast their ballots. The plaintiffs in the voter ID cases include Ruthelle Frank, the League of United Latin American Citizens of Wisconsin, the League of Women Voters of Wisconsin, and the Advancement Project."

Friday’s order stated that the judges were divided on whether to re-hear the case. It also stated: “Chief Judge Wood and Judges Posner, Rovner, Williams and Hamilton voted to hear this matter en banc. In the coming days, members of the court may file opinions explaining their votes.”

According to Wisconsin Public Radio, all five judges who rejected the request for a re-hearing were appointed by Republicans, as were two of the five who voted in favor of the petition.

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Tuesday, September 23, 2014

Prosser and his Influence // Abraham and White

William L. Prosser

Kenneth S. Abraham and G. Edward White have done us the favor of assessing “Prosser and his Influence”.  Prosser is, of course, William Prosser - the legendary torts treatise writer and ALI 2d Restatement of Torts Reporter.  After a brief biographical sketch (he was no charmer and no progressive) the Virginia law professors analyze the strategy and style of Prosser’s torts treatise as a window on his outsized influence on the law.   Abraham and White identify a method that could be called “boldly asserted, plausibly maintained”.
By identifying “emerging trends” in the law - such as the torts of invasion of privacy and intentional infliction of emotional distress (IIED) - Prosser sought to give doctrinal coherence to the cacophony of tort law.  The project was welcomed by lawyers who saw opportunities to explain and advance the law by doctrinal argument.  This was a much more promising tool than the anarchy offered by Legal Realists who saw only contending forces rather than logical development in the law.  His assertions often had less support than his confident but carefully qualified language suggested.  But he was perspicacious in many respects about how the law would develop.  Prosser’s recognition - and advocacy - of the torts of IIED and breach of privacy laid the foundation for important developments in recognition of dignitary harms, such as the concept of the “hostile environment” in workplace discrimination actions brought by women and ethnic minorities.  - gwc

Prosser and His Influence


Kenneth S. Abraham 

University of Virginia School of Law

G. Edward White 

University of Virginia School of Law 

August 20, 2014

Journal of Tort Law, Forthcoming 
Virginia Public Law and Legal Theory Research Paper No. 2014-51 


This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.

We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.

Saturday, September 20, 2014

British Pharma giant GSK to pay $500M bribery fine in China, offers public apology

The Times reports that China's bribery investigation of the British pharmaceutical global giant Glaxo Smith Kline has ended with a quick trial, a $500 million fine, expulsion of its in-country manager, and a public apology by the company. Although similar sums have been extracted for marketing abuses in the U.S., it is an eye-catching figure for China.
Such a large fine is not explicitly authorized in the PRC's criminal law against bribery.  But in the year 2000 the Supreme People's Court issued regulations regarding use of fines in criminal cases. Article 2 provides that fines should be assessed according to the circumstances, including the unlawful gains realized, the harm done,
Article 2.  The People's Courts according to the circumstances of the crime,  the amount of the unlawful gain, the degree of harm it causes, and making an overall assessment of the criminal offender's ability to pay,  shall impose a fine according to law .  If the criminal law does not explicitly state a standard amount of fine, the amount of the fine cannot be less than 1,000 RMB. (trans. - GWC)
Another interesting aspect of the remedy is the public apology to the "people of china". (below) The company admits only paying bribes to "non-governmental" persons like hospitals and doctors.  Given the extent of  state institutions there is a plea bargained element there, avoiding a GSK admission of violation of the U.S. Foreign Corrupt Practices Act. - gwc
by Keith Bradsher and Chris Bucklen // NY Times  September 19, 204
 "Chinese authorities accused Glaxo of bribing hospitals and doctors, channeling illicit kickbacks through travel agenciesand pharmaceutical industry associations — a scheme that brought the company higher drug prices and illegal revenue of more than $150 million. In a rare move, authorities also prosecuted the foreign-born executive who ran Glaxo’s Chinese unit.After a one-day trial held in secrecy, the court sentenced Glaxo’s British former country manager, Mark Reilly, and four other company managers to potential prison terms of up to four years. The sentences were suspended, allowing the defendants to avoid incarceration if they stay out of trouble, according to Xinhua. The verdict indicated that Mr. Reilly could be promptly deported. The report said they had pleaded guilty and would not appeal."
GSK plc Statement of Apology to the People of China

Following a comprehensive investigation by the Chinese judicial authorities, GSK China Investment Co. Ltd (GSKCI) has been identified according to Chinese law to have offered money or property to non-government personnel in order to obtain improper commercial gains, and has been found guilty of bribing non-government personnel. GSK plc fully accepts the facts and evidence of the investigation, and the verdict of the Chinese judicial authorities. Furthermore, GSK plc sincerely apologises to the Chinese patients, doctors and hospitals, and to the Chinese Government and the Chinese people. GSK plc deeply regrets the damage caused. GSK plc also apologises for the harm caused to individuals who were illegally investigated by GSKCI.

The illegal activities of GSKCI are a clear breach of GSK plc’s governance and compliance procedures; and are wholly contrary to the values and standards we expect from our employees. It is deeply disappointing that these issues were not identified and addressed. GSK plc has reflected deeply and learned from its mistakes, has taken steps to comprehensively rectify the issues identified at the operations of GSKCI, and must work hard to regain the trust of the Chinese people. Today, GSK plc makes a further commitment to the Chinese government and people that GSKCI will take tangible actions to establish itself as a model for reform in China’s healthcare industry: by continuing to invest in China and supporting China's scientific development; and by further development of innovative new medicines and vaccines for diseases prevalent in China. GSKCI will also increase access to its products in both city and rural areas of China through greater expansion of production and through price flexibility.
This long-term development strategy of GSK plc will promote the future health and well-being of the Chinese people, and positively contribute to China’s economic and social development.

BP ~ Don't shorten penalty trial


GM CEO: 'No surprises' at rising recall numbers

GM CEO: 'No surprises' at rising recall numbers:

by Nathan Bomey // Detroit Free Press

 "General Motors CEO Mary Barra said she was not surprised that the number of people killed in crashes connected to an ignition-switch defect is higher than initially reported.

She told reporters Friday morning that she was not taken aback when Ken Feinberg, the man running GM's victim compensation fund, said he has already awarded settlements to the families of 19 people who died in crashes caused by the defect.

GM had identified 13 deaths tied to the ignition switch defect, for which the automaker has recalled 2.6 million small cars.

Barra said she expected Feinberg to find more people affected by the defect.

"There's been so much focus on the original number — but we've always said all along that was based on the information that we had available to us," she said. "There's no surprises. Our goal has been every person impacted is a part of that program and that's the process we're working through.""

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Opioids: Santa Clara sues the drug companies // Daily Show

Update: See CDC on What Clinicians can do to end opioid abuse
The County of Santa Clara, California has filed a complaint against Purdue Pharma and other prominent drug companies.  the Superior Court action alleges that their sale of opioids like oxycodone is a public nuisance , violates the California false advertising act, and the California unfair competition law.  The County seeks restitution, penalties, and injunctive relief.

The innovative effort to reduce use of the prescription pain killers was the subject of a recent Daily Show interview segment.

Wednesday, September 17, 2014

Corporate Lawyers Breaking Bad | centerjd.org

Corporate Lawyers Breaking Bad | centerjd.org:

"By Joanne Doroshow, Center for Justice and Democracy at New York Law School

 I cannot wait for the new Breaking Badspin-off, Better Call Saul, about the always entertaining lawyer, Saul Goodman. For those unfamiliar with Breaking Bad, Saul's a criminal lawyer. No, literally, a CRIMINAL lawyer. Saul already has a new fake website complete with a banner ad, "Welcome Lawbreakers!" It's a joke, of course, not to mention fiction. And yet, I think Saul would find himself right at home in the legal departments of some of today's mega-corporations, at least based on what we've been seeing in court lately. And that's no joke.

 Last week, an extraordinary decision was issued by the federal Third Circuit Court of Appeals in an asbestos case, which really should rock the corporate defense bar. In the case, Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., asbestos victims provided evidence to the court that "that BASF and ['the New York law firm that defended it for years in asbestos cases, Cahill Gordon & Reindel LLP'] systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements." See more here. It was enough evidence to revive a fraud case against BASF and its law firm for "lying about the toxic material, then depriving those injured by it of their day in court."

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ThePopTort: Punitives Damages Get a Boost

ThePopTort: Punitives Damages Get a Boost:

by Center for Justice & Democracy

Punitive damages can be a tough sell. Juries award these kinds of damages to hold reckless companies and others accountable for outrageous misconduct. Yet (or so), they are easy rhetorical targets. “Huge” “arbitrary” and “costly to society" are how Big Business groups like to describe punitive damages. But do the facts tell a different story? Actually, they tell a very different story.
Punitive damages are rarely awarded and are modest in amount: awarded in only about 3 percent of successful tort cases.  And the median punitive award to tort plaintiff winners isn’t in the millions – it’s only about $55,000.  (See more here.) What’s more, appellate judges are cutting them back left and right. Just this week, the 7th Circuit severely reduced a jury award against ConAgra Foods, saying it “does not have to pay nearly $100 million in punitive damages stemming from the explosion at an Illinois grain bin that severely burned three workers.” 
Even in the case against BP for causing the 2010 Deepwater Horizon explosion and oil spill in the Gulf, while the court just found BP to be reckless and grossly negligent, he said, “based on previous rulings in the U.S. Fifth Circuit Court of Appeals, which includes Louisiana, BP cannot be held liable for punitive damages under maritime law.”  He also noted, however, that  “in other circuit courts, BP could be held liable for punitive damages, in addition to compensation for losses.”  (Here we go, U.S. Supreme Court!)
But like a phoenix rising from the ashes comes the Missouri Supreme Court, with a wonderful, unanimous decision this week striking down that state’s $500,000 punitive damages cap as it applies to any common law claim. 
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Oregon Supreme Court Applies Aggregate Settlement Rule in Clerg Sex Abuse Case // Mass Tort Litigation Blog

Mass Tort Litigation Blog:

by Elizabeth Chamblee Burch

On August 21, 2014, the Oregon Supreme Court embraced the ALI's definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients' informed consent before distributing a lump-sum settlement.  In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients' informed consent in writing to the formula or method he devised to divvy up the defendants' lump-sum settlement payments, which violated Rule 1.8(g).  As a result, the court imposed a 90-day suspension as a sanction.
For more on the problems associated with lump-sum settlements, see Howie's article, The Trouble with All-or-Nothing Settlements.

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