Wednesday, October 22, 2014

Jury deliberations begin in first trial over DePuy's Pinnacle hips | Reuters

Jury deliberations begin in first trial over DePuy's Pinnacle hips | Reuters:

"In his closing argument Tuesday, a lawyer for Herlihy-Paoli, Mark Lanier, said DePuy aggressively pushed the metal-on-metal devices for younger patients with active lifestyles, saying they could last longer than versions made with other materials such as ceramic or polyethylene, a type of plastic.

But in doing so, Lanier said, the company ignored years’ worth of data suggesting that metal-on-metal hips failed at an abnormally high rate, putting thousands of patients at risk.

"Send a clear message that holds them accountable," Lanier told jurors. He asked them to award at least $1.4 million for Herlihy-Paoli's medical costs and an additional, unspecified amount in punitive damages."



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O'Bannon anti~trust lawyers seek $50 M fees

O'Bannon Lawyers Move for $50M in counsel fees against NCAA -
 Sports Illustrated

The lawyers for the plaintiffs in the class-action antitrust lawsuit against the NCAA featuring former UCLA basketball star Ed O'Bannon want more than $50.2 million in attorneys' fees and other costs from the NCAA, [according to the Memorandum of Law filed by class counsel]
The lawyers submitted a request in August asking for $52.4 million, but did so to comply with rules that said they had to submit billing within 14 days of an upending judgment.
The plaintiffs' lawyers had until Tuesday to file an amended version of their request and the NCAA has until Dec. 23 to file a response to the filing.
The plaintiffs, led by Hausfeld LLP, now are seeking $44,972,407 in attorneys’ fees and recoverable costs and expenses of $5,277,209. According to the filing, the lawyers fees were billed from $985 per hour for senior partners with experience of more than 40 years to $175 per hour for the most junior associate.
According to the filing, Michael Hausfeld’s law firm oversaw the work of 31 law firms in the case, down from the 43 law firms from the fees-and-costs motion that was submitted in August. Hausfeld's firm claims they have spent more the 27,300 hours on the case, from March 2009 to the end of July of this year.
In August, U.S. District Judge Claudia Wilken ruled that the NCAA violated antitrust law by preventing student-athletes from being compensated for their name, image and likeness rights.
Wilken's ruling allows schools to pay athletes licensing money into a trust fund starting in 2016. Financial damages were not part of the trial, but Wilken said the plaintiffs "shall recover their costs from the NCAA."

Sunday, October 19, 2014

Feinberg backs BP bid to overturn settlement

Kenneth Feinberg, who worked for BP settling Gulf oil spill cases while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor.  He has urged the Supreme Court to grant cert in BP's attack on the deal it negotiated but now regrets in part.

His amicus brief declares "Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system."  ``Selected by Executive Branch officials' is cagey.  True for the 9/11 Fund, not for the BP spill.  He was "selected" by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.

In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator.  They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered "Gulf Coast Claims Facility".  Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge.   MDL judge Carl Barbier ruled that Feinberg was BP's agent. - gwc

Mass Tort Litigation Blog:

By Alexandra Lahav (UConn Law School)
The papers in the Deepwater Horizon Settlement cert petition are mostly in.   The case is BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc. -- you can find the documents on SCOTUSBLOG.

BP's basic argument is that the settlement approved by Judge Barbier in the mass tort class action against it was ultra vires because it contemplated giving money to people who were, according to BP, not injured.  The plaintiffs respond that BP is just trying to overturn a settlement it championed through the backdoor now that its unhappy with the deal.

One of the most interesting briefs filed in this dispute is from Kenneth Feinberg, who oversaw both the 9/11 Victims Compensation Fund and the Gulf Coast Claims Facility.
The latter was the entity that settled claims arising out of the Deepwater Horizon oil spill immediately after it happened.

Feinberg is a world class mediator and one of the most prominent figures in the mass tort world.   The class action settlement that BP is now disputing is the successor to the Gulf Coast Claims Facility, which he headed.   What the class action did that the Gulf Coast Claims Facility could not do is give BP global peace. In other words, all civil claims against BP arising out of the oil spill are precluded by that class action settlement.
Feinberg's brief asks the Supreme Court to grant cert.  The argument is basically the following: claim facilities like the ones he ran apply a causation requirement that parallels that of the tort system. But, he argues, the settlement agreed to by BP does not include as strong a causation requirement, and this threatens the possibility of future compensation funds to solve mass torts. The brief explains:

..the Fifth Circuit's decisions in this case affecting the causation standard, if permitted to stand, threaten to make these sorely needed alternatives to mass tort litigation unlikely to be replicated.  Future funds would either adopt the Fifth Circuit's new standard, thereby threatening to overwhelm the claims process with spurious claims, or continue to require causation, thereby channeling claimants toward litigation where the burden of proof is lower. (Feinberg petition at 6).
This argument seems to me to be just wrong.  The settlement imposed a looser causation requirement than tort law requires.  But that causation requirement was agreed to in order for claimants collect under the settlement; it is not the causation requirement of the substantive law. In the future, if a defendant perferred to create a settlement fund of the Feinberg-ian variety, they could do so and rest "easy" that the causation requirement of the substantive law remains as it always was. (Whether the requirement of specific causation is the best requirement from a normative point of view in mass tort litigation I leave to another day - AL)."
read more at link above
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Saturday, October 18, 2014

Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog



Federal District Court Judge Nelva G. Ramos, in a comprehensive opinion, found that the burdens of getting a photo ID as required by Texas law violated not only equal protection under the 14th but also the 24th Amendment to the Constitution which bans poll taxes. The court held that "every form of SB 14-qualified ID available to the general public is issued at a cost".The Texas Legislature, motivated by fears of the emerging minority vote, intentionally sought to reduce their votes.  The Fifth Circuit - probably the most conservative in the country - stayed the District Court's injunction against the Texas voter ID law.  Today the U.S. Supreme Court over dissent let the Circuit stay stand.  - gwc


The Supreme Court won’t interrupt Texas voter ID law : SCOTUSblog

by Lyle Denniston

 "The Court won’t interrupt Texas voter ID law
In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study. [Order and dissent]

 This apparently was the first time since 1982 that the Court has allowed a law restricting voters’ rights to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities.   A U.S. District Court judge in Corpus Christi struck down the ID law last week after a nine-day trial, but it now awaits review by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the trial judge’s ruling.

 The Justice Department has indicated that the case is likely to return to the Supreme Court after the appeals court rules.  Neither the Fifth Circuit’s action so far nor the Supreme Court’s Saturday order dealt with the issue of the law’s constitutionality.  The ultimate validity of the law, described by Saturday’s dissenters as “the strictest regime in the country,” probably depends upon Supreme Court review.


The Saturday order, for which a number of news organizations had kept a vigil through the night in anticipation of its release, did not disclose how six of the Justices had voted.

But, because it would have taken the votes of at least five to have reached the result, it was clear that the order had majority support.   The majority gave no explanation for its action.

Justice Ruth Bader Ginsburg wrote a dissenting opinion of more than six pages, joined by Justices Elena Kagan and Sonia Sotomayor.



The opinion, though written mostly in even tones, in substance was quite critical of the law, of Texas’s handling of the controversy over the law and its history of racial discrimination, and of the Fifth Circuit for clearing the way for the law to be used.

Much of the Ginsburg opinion closely tracked the arguments that the Corpus Christi judge had enlisted in finding the law to be the result of intentional discrimination, a violation of the Voting Rights Act of 1965, and an unconstitutional poll tax in violation of the Twenty-Fourth Amendment because of the fees required to get a valid ID.

 “The greatest threat to public confidence in elections in this case,” Ginsburg wrote, “is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”"...........

keep reading at link above



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IBM investigation: leaked BP settlement docs

http://louisianarecord.com/news/264034-ibm-report-independent-journalist-covering-bp-case-investigated-over-leaked-emails

Friday, October 17, 2014

O'Reilly admits he's obnoxious

http://www.salon.com/2014/10/17/bill_oreilly_finally_admits_it_im_really_obnoxious/?utm_source=twitter&utm_medium=socialflow

Thursday, October 16, 2014

Juneau: BP not 'candid' in attempt to oust him

Juneau: BP not 'candid' in attempt to oust him

NEW ORLEANS -- As claims administrator Patrick Juneau responded to BP's effort to oust him Wednesday, plaintiffs' lawyers rushed to his defense and questioned if BP was leveling "outrageous and unfounded accusations" against Juneau in hopes that Judge Carl Barbier would sanction BP and open new avenues for the oil giant to appeal.
BP CEO Bob Dudley has accused Juneau of "hijacking" and "willfully misinterpreting" the settlement. Last month BP filed a motion to have Juneau removed because he had a contract with the state of Louisiana advising the government about the claims payment process of Ken Feinberg, the man in charge of compensation before the 2012 court settlement.
Juneau said in a brief filed Wednesday that no fewer than six BP attorneys and executives knew about his role as a liaison for the state before the company asked the court to let Juneau serve as independent claims administrator. Juneau also said he told BP verbally about his role as an attorney for Louisiana and did not consider it a conflict of interest because it had nothing to do with the litigation between plaintiffs and BP or a separate suit filed by the state against the oil giant.
Juneau said BP was not being "fully candid with the court" and was wrong to say that he had served "as a lawyer in the matter in controversy."
"Louisiana's legal claims against BP, whenever filed, are irrelevant as to Mr. Juneau because Mr. Juneau played no role in preparing, filing, or litigating those claims for relief," Juneau's attorney wrote. "Mr. Juneau was hired to provide 'advice and counsel to the State . . . related to the claims process and allocation protocols utilized and developed by the Responsible Parties associated with and/or arising from the Deepwater Horizon Oil Spill,' and these services did 'not include litigation.'"
The attorneys representing the settlement class also filed briefs in court Wednesday saying BP's accusations against Juneau are so far out of bounds that they deserve sanctions, but quickly added, "To be clear, Class Counsel does not seek sanctions at this time."


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Bill O'Reilly Extended Interview - The Daily Show | Comedy Central

Exclusive - Bill O'Reilly Extended Interview - The Daily Show - Video Clip | Comedy Central

Another Levittowner - interviewed by Jon Stewart

"all I want from you is..I want you to admit that there is such a thing as "white privilege".

You grew up in Levittown - could Black people live there?





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Big Pharma - Unseemly Free Speech Champion //Balkinization

Balkinization: Big Pharma: the Unseemly First Amendment Champion, Part One"
by Jane Bambauer (University of Arizona Law School)
 The pharmaceutical industry is enjoying the sort of influence over First Amendment jurisprudence once reserved for the likes of Hustler Magazine. In Sorrell v. IMS, the Supreme Court protected the transfer and use of prescription data for pharmaceutical detailing (that is, the in-person sales pitches that pharmaceutical reps make to doctors.) 
A more significant free speech victory for Big Pharma was delivered by the Second Circuit in United States v. Caronia, which overturned the conviction of a pharmaceutical detailer for off-label marketing of a drug. Public health experts and constitutional law scholars are intensely critical of these developments, arguing that they are perversions of the First Amendment to favor large corporations at the expense of consumer protection. For reasons I sketch here, their reactions overstate the conflict between Big Pharma and public health and underestimate the First Amendment interests at stake."
*******
Placebo-controlled double-blind experiments might be an appropriate standard for a scientific journal, but those journals have the luxury of avoiding the constant stream of hard decisions that every doctor and consumer must make. At a critical point of deliberation, bad science on a drug’s risks and benefitscould be better than no science at all.


Moreover, the agencies also risk training the public to think that scientific conventions are tantamount to “truth” which is, ironically, antithetical to the scientific process. Science is messy, tentative, and error-prone. We can get a sense of this just by considering the (arbitrarily chosen) 5% standard for statistical significance. A result that is statistically significant at the 5% level deserves a lot of confidence when it is viewed alone. However, as soon as we pull together fifteen statistically significant findings, the chance that at least one of the findings is actually random noise exceeds 50%. If we pull together a hundred studies, which is often what our body of public health knowledge consists of, the chance that every statement is true falls to under 1%. Add to this the fact that most public health research cannot be replicated and we get a humbling picture. Even when evidence-based claims live up to the current standards of scientific rigor, we are fumbling in the dark. (I don’t mean to be too pessimistic here; observational studies and controlled experiments are the only thing that takes us from wrong to veryslightly less wrong, and that's a good thing.)


The FDA’s regulations rely on an assumption that less-than-rigorous scientific statements in favor of a drug’s adoption on balance not only alter doctor behavior, but also lead to patient harm. This assumption may be correct, but at present it lacks a basis in evidence. Profits and good advice are not always at odds. When they pull in the same direction, skepticism and regulation can get in the way of health improvements. For example, there are some drugs, such as tPA for the treatment of stroke, that are so effective that the lag among ER doctors to use it is simply tragic. The public health community has not been able to show that pharmaceutical detailing causes more harm than good, which is why the health-related justifications in Sorrell were unconvincing. In the absence of evidence that the free exchange of information causes harm, the FDA’s approach is in trouble. It flies in the teeth of the Brandeisian assumption that bad information is best countered by more information rather than censorship.


I suspect that, in the wake of Caronia, Sorrell, and other cases, courts will apply intermediate scrutiny to any restrictions on commercial speech that is not provably false. Courts will not defer to agencies on the definition of misleading, so if an agency regulates speech that is technically true but arguably misleading and distortive, it will have to come to court with evidence of the potential for both misinterpretation and consequent harm.

This shift will not be a welcome one to critics who think that the commercial speech doctrine waswrongheaded from the start. But these critics tend to undervalue consumer and listener interests in advertising, and to overlook other, better, alternatives for promoting good research. (To be continued in Part Two.)

Cancellation of High School Football Season Leads Sayreville to Ask What Happens Next - NYTimes.com



Friday night lights in New Jersey.  Sayreville  is a typical Jersey town that adores its football team, state champions the past three years.  White suburban Democrats in the main, (Black and Latin voters total about 23%) the town voted for Obama in 2008 and Christie in 2009.  Maybe they liked the tough guy style of the one time high school football player.  But Sayreville's celebration of machismo has been stopped as the ugly underside of bullying has been exposed.  - gwc

Cancellation of High School Football Season Leads Sayreville to Ask What Happens Next - NYTimes.com

by Harvey Araton

SAYREVILLE, N.J. — Late on a graying and increasingly gloomy Friday afternoon, with its vaunted football team shut down, shamed and soon to be scarred by the arrest of seven players ages 15 to 17 on sexual crime charges, the band played on.
The Sayreville War Memorial High School marching band, that is.
One staff member said it was just practice. The students went through their paces, as parents drove into the parking lot, mingled and snapped photos, as pizza boxes were stacked on a table with the dinner hour approaching.
“There’s still plenty of stuff for these kids to do,” a band supervisor said. “Jazz band, concerts — they’re not going to be left in the lurch because there’s no more football season.”
On a grassy patch near the empty stadium a few hundred yards away, a few football players tossed a ball around, trying to score them into nets the size of ice hockey goals. This improvised activity would have to do in place of the canceled homecoming game that night against Monroe and the rest of the season, which was called off last week by the district superintendent, Richard Labbe, after hazing accusations of a sexual nature surfaced.
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