Thursday, August 27, 2015

Litigation Continues on Epidemic of Hip Implant Failures | Dallas-Fort Worth Legal Examiner | Dallas-Fort Worth Texas Personal Injury Lawyer

DePuy ASR Metallosis Injury Attorney
A plaintiffs lawyer reports on the hip implant litigation against Johnson & Johnson, manufacturer of metal-on-metal prostheses.  J&J has settled the ASR model cases, but not the Pinnacle model cases.  In a dramatic win for the company in October 2014 a Dallas federal court jury rejected a claim in a trial presented by premier plaintiffs lawyer Mark Lanier.  Ten cases have been selected for bellwether trials. - gwc

Epidemic of Hip Implant Failures | Dallas-Fort Worth Legal Examiner | Dallas-Fort Worth Texas Personal Injury Lawyer

by Shezad Malik, MD, JD

The epidemic of premature metal on metal hip implant failure continues surge at an alarming rate. DePuy ASR, DePuy Pinnacle, Biomet Magnum, Smith and Nephew, Wright Conserve, Zimmer Durom cup and Stryker Rejuvenate and ABG II, are among hip replacements that continue to fail prematurely and require painful and risky revision surgery.

Latest $2.5M Oklahoma Jury Verdict

Andrea Smith, from Oklahoma has been awarded $2.5 million after suffering metal blood poisoning from DePuy ASR hip replacements. The state court jury found the DePuy ASR hip to be defective and unreasonably dangerous.

Smith, received ASR hip implants on each side in October 2006 and February 2007. According to Smith, she had to undergo revision surgery to have the implants removed in 2011 and 2012, after high levels of Cobalt and Chromium metal ions were found in her blood.

More Than 7,700 J&J DePuy Pinnacle Hip Lawsuits

J&J is continues to deny, delay and defend thousands of cases involving similar metallosis and premature failure problems from the DePuy Pinnacle hip. The DePuy Pinnacle is an older model that features a substantially similar metal-on-metal design.

There are currently more than 7,700 DePuy Pinnacle hip lawsuits pending throughout the U.S. In the federal court system, as of 7/15/2015, all complaints involving problems with DePuy Pinnacle implants are centralized in the U.S. District Court for the Northern District of Texas under U.S. District Judge Ed Kinkeade as part of a multidistrict lawsuit (MDL).

DePuy Pinnacle Bellwether Trials

The Dallas court has identified ten different cases that have been selected to be prepared for early trial dates. These early trials are known as “bellwether” cases. The trials help the parties gauge how juries may respond to similar evidence and testimony that is repeated throughout the litigation.

The consolidated federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo).

What Should Public Health Officials Be Doing About E-Cigarettes?


What Should Public Health Officials Be Doing About E-Cigarettes?

by John Maa  // Health Affairs Blog

Are electronic cigarettes a safer alternative to combustible cigarettes, or are they a new gateway to a lifetime of nicotine addiction? In the past month, the editors of The New York Times noted the opposite conclusions from the British agency Public Health England that reported e-cigarettes can reduce the health risks of smoking by 95 percent, compared to a study in the Journal of the American Medical Association, which showed that ninth graders who tried e-cigarettes were far more likely to then use regular combustible tobacco within a year.
In a step that may help resolve this controversy, the Food and Drug Administration (FDA) is soon expected to pass federal e-cigarette “deeming” regulations, which are so named because the Family Smoking Prevention and Tobacco Control Act of 2009 grants the agency oversight authority for additional tobacco products that it “deems to be subject” to the Act.
But while the debate they have ignited is new, electronic cigarettes themselves are not. The patent for their first prototype was issued in 1963, and the tobacco industry was approached decades ago with this technology as an alternative to cigarettes. Not until nearly a decade after the 1998 Tobacco Master Settlement Agreement did the tobacco industry become interested in e-cigarettes, best displayed by their recent acquisition of many of the smaller e-cigarette manufacturers.
This delay leaves some to wonder: why didn’t Big Tobacco champion e-cigarettes much earlier if they truly believed them to be “harm reduction” devices? In the following blog post, I suggest five key steps that policymakers, regulators, and public health advocates should take on e-cigarettes.

Wednesday, August 26, 2015

Maryland Restricts Racial Profiling in New Guidelines for Law Enforcement - The New York Times

Maryland Restricts Racial Profiling in New Guidelines for Law Enforcement - The New York Times

by Sheryl Gay Stolberg

BALTIMORE — Eight months after the Justice Department announced new curbs on racial profiling, Maryland became on Tuesday the first state to follow suit, with guidelines aimed at severely restricting law enforcement officers from singling out suspects based on traits including race, ethnicity and sexual orientation.
Attorney General Brian E. Frosh of Maryland issued the rules in a nine-page memorandum in which he condemned profiling of racial minorities by the police, calling it a “deeply unfair” practice.
“Racial profiling continues despite the fact that it is against the law of the United States; it’s against Maryland law,” Mr. Frosh said in a telephone interview shortly after announcing the guidelines at a news conference in the state capital, Annapolis. “We need people to understand that racial profiling is illegal, and it’s bad police work.”
Maryland law requires law enforcement agencies to have policies prohibiting racial and ethnic profiling during traffic stops; the new guidelines expand on that in two ways, Mr. Frosh’s office said. Under the law, officers may not use race and ethnicity in making police decisions; the guidelines also include national origin, identity, disability and religion as traits that may not be considered. They apply to routine operations, to investigations and to traffic stops.
Law enforcement officers may not consider personal characteristics while “conducting routine police activity,” the memorandum says. They may do so only if they have “credible information” that such characteristics are “directly relevant” to the investigation of a crime.
Read more

Tuesday, August 25, 2015

More on Race and Tort Damages // TortsProf Blog

TortsProf Blog

by Christopher J. Robinette

This is a hot topic.  Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law.  Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.
Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor.  This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit.  Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women.  First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create.  Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities.  The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.
Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:
Much of the current debate over race relations in the United States revolves around police brutality and legal injustice.  However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child.  Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.

Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate.  The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law. 

Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different.  Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother.  If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?
Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.

Monday, August 24, 2015

Analysis Finds Higher Expulsion Rates for Black Students - The New York Times

Are Black kids bad? White kids? Are there any remedies courts can afford in this situation?  Is federal administrative effort the only available remedy?    Is it overkill? - gwc

Analysis Finds Higher Expulsion Rates for Black Students - The New York Times

by Motoko Rich

With the Obama administration focused on reducing the number of suspensions, expulsions and arrests in public schools, a new analysis of federal data identifies districts in 13 Southern states where black students are suspended or expelled at rates overwhelmingly higher than white children.
The analysis, which will be formally released Tuesday by the Graduate School of Education at the University of Pennsylvania, focused on states where more than half of all the suspensions and expulsions of black students nationwide occurred. While black students represented just under a quarter of public school students in these states, they made up nearly half of all suspensions and expulsions.
In some districts, the gaps were even more striking: in 132 Southern school districts, for example, black students were suspended at rates five times their representation in the student population, or higher.

In recent years, civil rights groups such as the Advancement Project and legal advocacy organizations including the NAACP Legal Defense and Educational Fund Inc. and Texas Appleseed have focused on reducing arrests and other severe disciplinary actions in schools.
Last year, the Obama administration issued guidelinesadvising schools to create more positive climates, set clear expectations and consequences for students, and ensure equity in discipline.

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

by Kevin Johnson (Dean, UC Davis Law School)

The U.S. immigration removal system targets noncitizens who are involved in criminal activity.  Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse).  State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police.  Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals. 

The Modern Immigration Removal System

The Obama administration’s signature immigration enforcement program, Secure Communities, proved to be highly efficient at facilitating removals of large numbers of noncitizens, including lawful permanent residents as well as undocumented immigrants, arrested for minor, as well as more serious, crimes.  Indeed, the program was so effective that removals spiked to record highs in the neighborhood of 400,000 noncitizens a year.  
Total removals of noncitizens by the U.S. government reached an all-time high of 438,421 in 2013:  “Mexican nationals accounted for 72% of all aliens removed in 2013.  The next leading countries were Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.7 percent).  These four countries accounted for 96 percent of all removals in 2012.” Dep’t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions:  2013, at 6 (Sept. 2014) (emphasis added). From 2003-13, men accounted for 91% of all deportees.  These statistics are consistent with an immigration removal system that relies primarily on the criminal justice system and its racial profiling of Latino males by state and local police.
Simultaneous with ending Secure Communities, the Obama Administration announced the creation of the “Priority Enforcement Program” (PEP) with the stated intent of re-focusing removal efforts on serious criminal offenders; PEP changed federal policy to restrict requests for immigration “holds” to noncitizens actually convicted of crimes rather than merely arrested for them.  Memorandum dated November 20, 2014 to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer Office of Civil Rights and Civil Liberties, Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, at 2-3 PEP continues to target “criminal aliens” for removal.
One commentator aptly summarized contemporary developments in American immigration enforcement as in effect creating “a criminal removal system.”  Ingrid V. Eagly, Criminal Justice for Noncitizens:  An Analysis of Variation in Local Enforcement, 88 NYU L. Rev. 1126, 1128 (2013). Police in traffic stops and other law enforcement activities rely on race.  And, because immigration enforcement today relies increasingly on state and local criminal arrests, removals have fallen overwhelmingly on Latina/o immigrants. 

Palestinian Authority Is Ordered to Post $10 Million Bond in Terror Case - The New York Times

In Sokolow, et al. v. Palestine Liberation Authority, et al. ( 1:04-cv-00397 SDNY) U.S. District Judge George Daniels has ordered the Palestinian Authority to post a $10 million appeal bond, together with another $1 milllion/month.  The amount is relatively small - given the $655 million verdict on appeal.  The trial judge has given consideration to the concerns of the United States.  Deputy Secretary of State Anthony Blinken in an affidavit  underscored the "vital" security and diplomatic interests of the United States in the viability of the Palestine National Authority, to which we have given "billions" of dollars in aid and which is in "crisis".  - gwc
Palestinian Authority Is Ordered to Post $10 Million Bond in Terror Case - The New York Times

by Benjamin Weiser

In a widely watched terrorism lawsuit that drew the attention of the Obama administration, a federal judge in Manhattan ruled on Monday that the Palestinian Authority would have to post $10 million and an additional $1 million monthly to appeal a huge damages award for its role in six terrorist attacks in Israel that had killed and injured Americans.
The bond amount was much lower than lawyers for the victims had sought and matched the amount that lawyers for the Palestinian Authority said in court on Monday that the defendants could pay.
Just two weeks ago, the Obama administration weighed inon the case, expressing concern in a submission to the judge that requiring too high a bond could cause economic and political harm to the Palestinian Authority and the broader peace process.

The Palestinian Authority and the Palestine Liberation Organization in February were found liable in the attacks, which occurred between 2002 and 2004, after a lengthy civil trial brought under an antiterrorism law that provided for a tripling of the jury’s damages award of $218.5 million, for a total of $655.5 million.
Read more

GM ignition switch defects tied to 124 deaths, 275 injuries, Feinberg claim review finds

When the scandal blew open defective ignition slip claims against the automaker were barred by the statute of limitations, and the discharge in bankruptcy of all claims against "old GM".  Some, of course were settled confidentially.  The sorry affair was described in the Valukas report prepared by the Jenner & Block law firm for GM. - gwc

GM ignition switch defects tied to 124 deaths, 275 injuries, Feinberg claim review finds

by Nora Naughton // Crain's Automotive News

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches.

The switches, which prompted the recall of more than 2.6 million vehicles last year, now have beenlinked to 124 deaths and 275 injuries, 17 of which were serious.

GM hired Feinberg last year to independently compensate the victims of crashes caused by the defective switches, which can be jostled out of the “run” position by a knee or heavy key chain, cutting power to the engine and power steering.

A representative from Feinberg’s office was not immediately available for comment.

GM has set aside $625 million to pay victims. Death claims are eligible for a $1 million payout for the person who died and $300,000 each for a surviving spouse and any dependents.

Of the 275 injury claims approved by Feinberg’s office, 258 were for minor injuries, which required hospitalization or outpatient treatment within 48 hours of the accident. The remaining 17 injuries were serious, resulting in quadriplegia, paraplegia, double amputation, permanent brain damage or pervasive burns.

The payouts for victims of severe injuries vary and even can exceed those of death claims. Minor-injury claimants are eligible for payments from $20,000 to $500,000, depending on the length of hospital stay.

Of the 4,343 total claims received by Feinberg’s office, 3,944 -- roughly 90 percent -- were found ineligible.

Sunday, August 23, 2015

Unconscionability Survives SCOTUS Rulings // CL&P Blog Public Citizen

A Pair of Arbitration Papers (CL&P Blog) (Public Citizen Litigation Group)

States have long relied on the doctrines of unconscionability and public policy to protect individuals against unfair terms in mandatory arbitration provisions. The Supreme Court recently struck a blow to such efforts in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant. In those two cases, the Court established that a challenge to the enforceability of unfairly one-sided arbitration clauses is preempted if it would interfere with “fundamental attributes of arbitration.” Several commentators have argued that these decisions will dramatically alter the arbitration landscape, by wiping away virtually any contract defense to the validity of an arbitration agreement and giving corporations carte blanche to impose whatever terms they want into an arbitration clause. Many practitioners are aggressively pushing courts to take a similarly broad reading of Concepcion and Italian Colors.

This article takes a contrary view. First, this article argues that the cases will have very little impact outside of the context of class action waivers, the subject matter of both Concepcion and Italian Colors. Applying state law to strike down arbitration provisions that are so one-sided as to be unconscionable ordinarily will not interfere with “fundamental attributes of arbitration” and should not be preempted.

Second, the Court’s newfound focus on “fundamental attributes of arbitration” reveals why Concepcion should actually narrow the scope of Federal Arbitration Act (FAA) preemption rather than expand it. A careful examination of arbitration clauses shows that, if anything, the “fundamental” aspect of arbitration is choice, that is, the ability of parties to freely negotiate the terms of their arbitration agreements in an arms-length fashion. If choice is fundamental to arbitration, then what is inconsistent with arbitration is a lack of choice, namely adhesion. As a result, states have much greater power than previously thought to ensure fairness in standard-form, non-negotiable adhesion contracts, in which most arbitration agreements are contained, without violating the FAA.

Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages

OTHERWISE: Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages