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FROMTHEPRESIDENT

Thomas V. Girardi • President I have a mandatory assignment for all members of this extraordinary organization: Pick up the roster and read all the names of the organization. I guarantee you it will make you very proud that you are part of it. Obviously, these people and you represent the very best in a very difficult profession. The obstacles are high and the dedication must be higher. As leaders of the trial bar, I think we have to do a little bit better to make civility as important as the other legal steps we perform in representation. I think we should take a page out of Abraham Lincoln’s book. From an article by Bob Burg: The 16th U.S. President, Abraham Lincoln was one of the best when it came to mastering the art of positive persuasion — what I often refer to as, Winning Without Intimidation. He knew how to make friends out of enemies, and keep conflict to a minimum. I believe the following story is an excellent example of the president’s abilities in this regard: “…{On one occasion}, when another official sharply criticized Lincoln’s judgment, the president responded to a reporter’s interrogation by saying he had great respect for the other man, and if this official had concerns about him, there must be some truth to it. Such discretion disarmed divisiveness that was intended to draw Lincoln into side-skirmishes, it won the hearts of his friends and foes and it allowed Lincoln to maintain focus on more important issues.”

4 x The Trial Lawyer

What Lincoln did was to utilize the tactic of “deflection.” This means to softly “parry” a strong challenge or accusation, deflecting it into another direction where it is now harmless. I was at a seminar recently which defined habits of phenomenally successful leaders. Listen: Great leadership comes from understanding your organization and its people. Understanding comes from listening to your partners, your clients and the market. Share: Share your vision and goals. Set the bar high. People want to feel like they’re part of something great. Recognize: Always recognize and celebrate your team. Great leaders share credit for success and accept responsibility for failure. Also, they

praise in public and criticize in private. Commit: Make a commitment to yourself to be the best firm leader you can be. Read books and articles. Attend conferences. Collaborate with other leaders, both in and out of the legal profession. Finally, I think Frank Sinatra had us in mind when he sang the song “Winners.” Here’s to the winners — lift up the glasses. Here’s to the glory still to be. Here’s to the battle whatever it’s for, To ask the best of ourselves, then give much more. All the best, Tom


The

Trial Lawyer

A MAGAZINE FOR TRIAL LAWYERS & A VOICE FOR JUSTICE

www.thetriallawyermagazine.com

Summer 2016 • Volume VI, Number II PUBLISHER Legal Brands, Inc. Keith Givens EDITOR-IN-CHIEF Adair Baine-McDonald EXECUTIVE EDITOR Farron Cousins MANAGING EDITOR Brian McDonald ASSOCIATE MANAGING EDITOR Andrew Findley SENIOR EDITORS Mike Papantonio, Angela Mason, Keith Givens, Kerry N. Jardine, Joe DiNardo CONTRIBUTING WRITERS Kelly Anthony, John R. Colvin, Farron Cousins, Cathy Deloney Corbo, Chauncey DeVega, Joseph DiNardo, Robert T. Eglet, Richard Eskow, Andrew Findley, Steven G. Greenlee, Thom Hartmann, Kedar Ismail, Myron Levin, KJ McElrath, William Ourand, Martha Rosenberg, Harlan Schillinger, Mollye Vigodsky EXECUTIVE DIRECTOR Michelle Swanner DIRECTOR OF IT SERVICES Jerome Tew ILLUSTRATOR Jerry Byrd BUSINESS MANAGER Chase Givens PRODUCTION MANAGER Hope Crew COPY EDITOR Andrew Findley

The Trial Lawyer magazine is published quarterly by The Trial Lawyer, Inc., 430 West Main Street, Dothan, AL 36301. The Trial Lawyer, Vol. VI, No. 2, Summer 2016 (ISSN 2159-7413) © 2016, The Trial Lawyer, Inc. — All rights reserved. Reproduction in whole or in part without permission is strictly prohibited. Application to Mail at Periodicals Postage Prices is pending at Dothan, Alabama, and additional mailing offices. POSTMASTER: Send address changes to The

ADVERTISING SALES EXECUTIVES Cathy Deloney •CDeloney@TheTrialLawyerMagazine.com Office 866-662-2852 • Cell 334-718-1741 Johnnie Hobbs • JHobbs@TheTrialLawyerMagazine.com Office 866-662-2852 • Cell 334-803-9159 FINANCIAL MANAGER Eddie Terrell

Trial Lawyer, Inc., 430 West Main Street, Dothan, Alabama 36301.

WEBSITE MANAGERS Carey Henderson, Steve May

Produced and printed in the U.S.A.

GRAPHIC ARTIST Gina Roberson


CONTENTS

departments

DOWN TO BUSINESS 10 Legal Marketing: How To Identify A Target Audience And See Real Results 14 Three Critical Mistakes For Firms To Avoid When Selecting A Lender: A Litigator’s Guide To Avoiding A Bad Financing Relationship FROM THE EXPERTS 18 Everything Known And Unknown The “Rumsfeld Doctrine” And The Social Security Administration’s Final Rules On The Submission Of Evidence In Disability Claims PRODUCT WATCH 22 What Trial Lawyers Need To Know About The Exploding E-Cigarette Epidemic LEGAL BRIEFS 26 North Carolina’s “Bathroom Law” Nexium, Big Pharma Price-Gouging, Johnson & Johnson Appeal, Pfizer Drops Proposed Merger, Valeant Exploits Death THE TRAVELING TRIAL LAWYER 87 Rich Newsome — Bahamas’ Abacos Islands RAISING THE BAR 89 Christopher J. Cadem, Brent Moss, and Andrew Williams THE GOOD, THE BAD & THE UGLY 92 Young American Citizens Judge Richard J. Leon Judge Joseph Boeckmann

features 30 38 42 46 52 56 60 64 68 70

74 79 82

The Ideal Qualities Of A Trial Lawyer Are You Eating Antibiotics In Your Dinner? Derailed In DC: Bomb Trains And Chemical Exposure Corporate Power Run Amok? Monsanto The EPA’s Ties to Monsanto Could Be Disastrous For The U.S. Time To Take A New Approach Towards Climate Change Johnson & Johnson Gets Hammered In Ovarian Cancer Cases The Sociological Imagination, Racism, and Donald Trump Big Pharma Loves Misguided Patients Republican Obstruction Is Decimating Our Judicial System: An Interview With Howard Nations Women en Masse: Aimee Wagstaff Pioneers Tort Group For Female Litigators The Trial Lawyers Summit America’s Trial Lawyers — Protecting A Threatened Species


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DOWNTOBUSINESS

By Harlan Schillinger, Network Affiliates

LEGAL MARKETING:

HOW TO IDENTIFY A TARGET AUDIENCE AND SEE REAL RESULTS Your audience is more important than your attorneys. We realize that’s a little blunt, but without a clear understanding of your existing clientele, attorney marketing is futile. 10 x The Trial Lawyer


While core knowledge of audience demographics and psychographics has always been key to any business marketing plan, it can be tricky to understand audiences in the legal world, where:

1) Audience sets are extremely diverse, even though “pain points” (such as victim rights) may be shared 2) Traditional law-firm advertising practices have focused on attorney achievements over client needs 3) Audience analytics in the digital space are completely new to many lawyers in an exceptionally interpersonal industry However to capture your clients’ attention in an increasingly distracted world full of many commonplace messages that all blend together, the more you know your audience the better you can:

• Market to them in general and position your law firm • Have a thought-leading presence on the platforms they are on • Create a thoughtful content strategy with the tone and topics that resonate • Convert users interacting digitally with your brand into clients — and, ultimately, brand advocates

Without identifying your audience, marketing strategy is more of a “shotgun” approach. And, while Network Affiliates staff members know lawyers well, we don’t know many that want to pay for a throw-everything-to-the-wall-to-seewhat-sticks strategy.

Fortunately, technology has made understanding audiences much easier and cheaper than in the past. Rather than combing through database information to glean commonalities, conducting pricey focus groups or running fullblown surveys, lawyers have loads of free tools available to learn about audience habits, hurts and motivations. Such metrics can quickly divulge where clients are coming from, what current content marketing efforts are working best, and what tactics might be worth testing on new or existing audiences in the future. In fact, much of the market research that was once time consuming, cost prohibitive and woefully incomplete is now accessible right online to any attorney. Assuming that most law firms have a website and use a major social platform to leverage the content they are producing, let’s start with identifying some of free tools you already have in your shed that can help you get to know your audiences more intimately. Google Analytics: Undeniably one of the most helpful digital tools for gauging audience behavior, this website-linked application will serve up demographic data, general age group stats, audience interests, and insight on users’ devices and operating systems. This type of analytical insight can provide support for answering those bigger questions: Who are your followers versus your paying clients? What are their engagement starting and ending points online? What patterns do they follow in the decisionmaking process? Facebook Insights: Specific to your Facebook community (the people who follow you on the social platform), Facebook Insights not only provides demographic breakdowns, but also tracks the types of posts that resonate most with users, such as video or graphics or text. The real-time tool also shows you which days of the week and times of day have the best engagement and will work best for posting content to reach more of the people you want to reach.

Twitter Audience Insights: This is another intuitive social gizmo that can confirm your audience demographics, but the best part of this application is there are hundreds of audience dimensions — occupation, lifestyle, political affiliations, consumer behaviors, etc. — available to your marketing firm for further dissection and strategic planning. It’s all well and good to have data. Knowledge is power, right? But it’s only powerful if you understand what you’re looking at and how it truly applies to your audiences: Who they are; how they feel; and in what way they make decisions. So let’s dig a little deeper into what the metrics from some of your digital tools can actually tell you about your visitors and followers. Such insights can start to expose gaps in your current attorney marketing efforts.

“Another helpful statistic is mobile versus desktop users. Monitor this to figure out how to best reach your audiences going forward.” SEEING BEHAVIOR IN NUMERALS Begin with your audience demographic metrics, including age, gender and location. These biggies will help you categorize priority audience sets and therefore speak to current and prospective clients appropriately. For example, Boomers may need a different level and style of communication than savvy millennials. Women and men certainly speak different languages, but is there some middle ground that feels right? If 80% of your business is coming from inside your town or state that also means something significant for your marketing messages.

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Another helpful statistic is mobile versus desktop users. Monitor this to figure out how to best reach your audiences going forward. Across the board, people are moving more towards mobile applications. So how quickly is your specific audience catching on and therefore expecting your firm to communicate in mobile-friendly formats? Find out. It’s extremely important to know and plan for in online marketing. Within your social tools, knowing what time of day your audiences come on online and how much time they spend there is also important. This will show you when people are most likely to engage with your legal brand. It may sound nuanced, but having these behavioral patterns at your fingertips can help your law firm market more strategically than the competition. FROM INSIGHTS TO INSPIRATION

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So what are lawyers really gleaning from these digital insights? Simple: Knowing where to be and how to talk to audiences to convert them into clients. Search and social analytics on audience will continue to drive future content strategies, from what topics are appropriate, to how and where your firm’s owned content gets shared, even to what time of the day people “promote” your brand online. Because content drives a lot of online strategy, knowing what type of content to produce and where to place that content to get the most traction will make a world of a difference in your online marketing efforts. While I hope this is helpful information, having so many marketing tips and tools at your fingertips it can feel both empowering — and overwhelming. Don’t let this kind of digital data throw you for a loop. Understanding how audience behavioral tracking can actually lead to marketing results is a powerful source of knowledge. This is also not rocket science. Please take time to understand how your future prospects and clients think. Approach this in the same manner you would a jury trial. Just think about who you are talking to. Make sense?


DOWNTOBUSINESS

3 CRITICAL MISTAKES FOR FIRMS TO AVOID WHEN SELECTING A LENDER

A LITIGATOR’S GUIDE TO AVOIDING A BAD FINANCING RELATIONSHIP By Joseph DiNardo, Esq. and Kelly Anthony, Esq.

As plaintiffs’ attorneys, we want to focus primarily on our clients — not on dealing with our lender. Nevertheless, I have seen firms that choose the wrong lender fall prey to neglecting those they represent, or worse, suffer the loss of thousands of dollars because of a lender’s failure to timely fund a portion of the loan, poor customer service, general incompetency, hidden fees or overly burdensome loan requirements. In this day and age, with more and more financing options becoming available to attorneys, it is getting harder (and more frustrating) to select a lender you know will not act as a drain on your time, money and resources. So, how do you choose a lender who will care about the success of your practice and offer you the best deal? Start by avoiding these critical mistakes:

14 x The Trial Lawyer


MISTAKE 1: CHOOSING BY LOWEST RATE ONLY “The bitterness of poor quality is remembered long after the sweetness of low price has faded from memory.” – Aldo Gucci If you are like most lawyers I know, you do not base your decision to hire a trial expert or who to employ at your firm solely by who is willing to be paid the least. This is because low cost does not necessarily equate to good quality. For instance, the cheapest expert may not have the qualifications or training necessary to understand the evidence, and the lowest-cost employee does not always have the skill required to effectively carry out the responsibilities associated with their position. The same is true for choosing a lender. Just like hiring an employee or expert, deciding which financing company to do business with should not depend solely on who offers the lowest rate. Instead, your choice should hinge upon which candidate is best suited to the personality and needs of your firm. Accordingly, if a loan officer is hard to reach, has a bad attitude or is micromanaging your firm from the outset, you may not want to work with them. One way to limit the risk of entering into a damaging lending relationship is to treat the process of selecting a lender like an interview. When speaking to a prospective lender, inquire about their experience and qualifications. Have the lender provide you references from law firms that currently use their services or have in the past. Ask them if the product is their own loan or if they are just reselling a loan that is actually serviced or guaranteed by another lender or agency. Also, make sure that your main contact walks you through the steps of the loan process and is straightforward about the size of the funding, term, use of proceeds, what collateral will secure the loan and other noteworthy loan terms. Lastly, determine which individuals at

the company you will be working with once the loan is closed because the best relationships are those with whom you know and feel you can trust. Asking questions like these allows you to scrutinize and assess whether the lender will be knowledgeable, hyper-responsive, accommodating and good-natured throughout the term of the loan. Certain red flags to watch out for include (1) lack of communication, (2) unprofessionalism, (3) vague or ambiguous loan terms and (4) rushed or extremely slow service.

MISTAKE 2: FAILING TO RESEARCH THE LENDER “In the beginner’s mind there are many possibilities, in the expert’s there are few.” — Shunryu Suzuki It is no secret that borrowers should avoid lenders that have financial stability issues. If your lender winds up insolvent, then your access to capital and ability to run your law firm will be impaired. However, new or inexperienced commercial financing companies can prove equally disastrous to a law firm. This is because lenders that are new to funding plaintiffs’ firms are more apt to provide unsound financial advice since they do not have any expertise in matters involving civil litigation. Often, a financially volatile or

inexperienced company will not readily disclose its faults to prospective clients. Therefore, no matter how a company might present itself, it is prudent for you to do your own research prior to engaging their services. Otherwise marketing materials, advertisements or the lender’s own word may lure you into a bad relationship. When researching a potential lender for your firm, the easiest place to start is the company’s website. Websites that are up-to-date and contain helpful, educational material specific to plaintiffs’ law firms indicate that the company cares about their product and has a vested interest in promoting the plaintiffs’ bar. Further, the distribution of specialized knowledge suggests the company will not treat your law firm like any other business. A website can also serve as a source of information about the members of the company. See if you can uncover if the lender has any attorneys on their staff or management team. If you plan to use your contingent fees as collateral for a loan, then this should be one of your chief concerns. Trust me, you are going to want a company that already knows how fee arrangements are structured. Otherwise, you run the risk of spending a substantial amount of your time teaching a banker or financial auditor how to value case fees that are not yet realized, but which you feel will have significant value. Along with a lender’s website, blogs, press releases, online review sites and social media pages also serve as great resources for evaluating companies. From those tools you can get a good sense of (1) how long the company has been financing law firms by the amount of posts, (2) whether its objectives are in line with yours, (3) whether it supports and finances the defense bar (for confidentiality reasons) and (4) whether it is well received by its clients or other attorneys. Keep in mind that some reviews can be biased, but if the overwhelming majority of the reviews are negative, then you probably should stay away. Finally, utilize your access to Westlaw, The Trial Lawyer x 15


LexisNexis and other legal research sites. With these resources you can verify that the lender is in good standing with its state of incorporation, does not have any judgments filed against it and is financially sound. In essence, conducting research is a simple way to uncover any of a lender’s skeletons. By performing just a basic internet inquiry, you can limit the pool of potential lenders and make an educated decision. MISTAKE 3: THINKING EVERY LENDER IS THE SAME “Price is what you pay. Value is what you get.” — Warren Buffett All lenders are not created equal. Rather, certain lenders push discounted rates for a reason — it is the only value they can offer a law firm, while others can only deliver one type of product or are limited by how much money they can provide. For example, most banks have the lowest rates but limit the amount of financing available to law firms by the value of their personal assets. Frequently, 16 x The Trial Lawyer

traditional banks cannot extend to plaintiffs’ firms as much money as the firms actually need. Plus, banks generally will treat you like any other commercial business, despite the unique nature of a contingent fee practice that is rife with inconsistent cash flows. Conversely, companies that exclusively lend to plaintiffs’ firms understand the business of law and are able to value your future fees. The result is a larger asset pool for your firm to draw upon to secure more sizeable financing. Nonetheless, the value most specialty lenders bring to a firm is generally limited to just money. If you truly want your practice to thrive with the aid of funding, then select a financing company that is more than just a lender — a company that acts as a partner, who can provide you superior customer service, specialized expertise in how to profitably grow a firm and access to a network of other plaintiffs’ attorneys with practices similar to your own. One company that offers that kind of value is Counsel Financial. Not only has it financed over $1 billion to firms in every area of plaintiffs’ litigation, including personal injury, mass torts, class action and labor and employment,

but it is also comprised of a team of attorneys with over 200 years of legal experience. It also can afford firms connections to a network of hundreds of plaintiffs’ firms — the largest network in the industry. Further, Counsel Financial freely offers insight to its borrowers on how to meet their business objectives by drawing on its over 15 years of experience in serving the plaintiffs’ bar. Most importantly, the company is trustworthy. It is exclusively endorsed by six national and state trial organizations, including The National Trial Lawyers and the American Association for Justice. Unlike the other specialty lenders, Counsel Financial offers a Hybrid Line™. The Hybrid Line provides for financing at a significantly lower rate of interest by (1) matching a traditional bank rate on a portion of a line of credit, and then, (2) blending it with the higher rate generally charged on the additional financing, for a much lower rate than other specialty lenders can provide. While a low interest rate should not be your sole criteria for choosing a lender, it should not be completely overlooked. Ultimately, what matters the most in the process of selecting a lender is being comfortable with the company you choose. That means doing proper diligence prior to entering into a financing transaction. You want a company you can trust with your money. A company that is willing to answer your calls and that is responsive to all of your firm’s needs. A company that is dramafree, so you can focus on what matters most — your clients. The author is not only a trial lawyer, but also founder and CEO of Counsel Financial and Plaintiff Support.


The Trial Lawyer x 17


FROMTHEEXPERTS

EVERYTHING KNOWN AND UNKNOWN

THE “RUMSFELD DOCTRINE” AND THE SOCIAL SECURITY ADMINISTRATION’S FINAL RULES ON THE SUBMISSION OF EVIDENCE IN DISABILITY CLAIMS By John R. Colvin

As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. – Donald Rumsfeld, former U.S. Secretary of Defense On March 20, 2015, the Social Security Administration issued the final rules on the submission of evidence in disability claims. On the one year anniversary of the final rules becoming effective on April 20, 2015, many social security practitioners have experienced first-hand the practical implications of 18 x The Trial Lawyer

the new evidence regulation. Prior to the new evidence submission rules becoming final, the SSA received 85 comments upon issuing its proposed rules in February 2014. The SSA elected not to adopt any of the suggested changes. However, there was brief discussion in several of the SSA comments before

refusing to adopt them. These comments can be found printed just prior to the actual regulations. Unfortunately, with its final issuance the rules remain unclear and confusing in their practical application and, therefore, warrant a deeper discussion as to their application by Social Security practitioners.


The SSA also has not provided any possible solutions and/or guidance for representatives to follow the rules in accordance with their duty and burden to collect and verify the evidence for its submission. In reviewing a summary of the proposed rules, it is apparent that nothing was changed in the final regulations from the original submission. In short, the Social Security Administration now requires all

apparently when determining what is included in the definition of “all,” what is included in “known” and what is meant by “relates” and “received.” In order to examine the rule more fully, this discussion will now turn to more elaboration on the specific definitions of each part of the rule. In order to have a thorough examination, it will be necessary to include a brief discussion of the two privileged communications exceptions. Lastly, as previously stated,

claimants and/or their representatives to inform the agency about and/or to submit “all evidence known to you that relates to your disability claim,” including “all evidence received from any source in its entirety.” Additionally, representatives are required to “help obtain the information or evidence” that must be submitted. The rules go on to state that this includes both evidence which would be considered favorable and unfavorable even if it is not considered material. Accordingly, one can conclude from this discussion that the SSA expects any and all evidence to be reported. The problem here begins to be seen more

the rule as it stands offers no possible solutions for its requirements in a practical application. Therefore, such possible solutions will also be explored. The discussion should necessarily begin with the most general two terms, “all” and “known.” Starting with the term “all” it should be understood that the SSA is referring to all of the evidence that a representative has access to from any and all sources. This definition includes all information from a medical source and other claims by the claimant unless such would fall under one of the two exceptions to the evidence submission rule dealing with

certain privileged communications and attorney work product reviewed later in this article. In addition, “all” necessarily includes evidence that should be “known” to a representative. Unfortunately, this drastically increases the burden on the representative. Under the rules, the SSA now requires that a representative provide information that the claimant may or may not have shared with the representative but is currently known to the claimant. This does include, but is not limited to, medical records, medical source statements and any additional claims pursued by the claimant. It should be understood that under this rule, the medical source statement can include an opinion from an accepted medical source which may also include opinions regarding what the claimant is limited to in relation to their day to day existence. It should be noted that in order to fulfill his or her duty, a representative must specifically request and verify such information from the claimant, rather than just assuming to know the unknown, the representative must ensure that the information being provided is being provided with clarity and completeness. Lastly, with regards to the definition of “all” the rule appears slightly less ambiguous in eliminating the question of whether or not unfavorable evidence must be submitted in Social Security disability cases. It is patently clear from the rule’s plain meaning that “all” evidence is defined to include that which is both favorable and unfavorable. The next issue to be explored here will be that of the term “received.” SSA also clarified that while representatives must submit all evidence “received,” the representative in certain circumstances does not necessarily have to request the deliverance of all evidence, only that SSA be informed of the existence of such. The SSA’s response to the comments also outlines the agency’s duty to develop and verify the claimant’s file in an instance where both claimants and/or their representatives are requesting only the discharge summary from a hospital chart and not the complete medical record. In The Trial Lawyer x 19


this instance, the representative would be that while the Administration’s request In addition to requiring a claimant to required to submit only the information for medical information also limits inform SSA about or to submit evidence that is received in response to such the amount that a medical provider as described above, it should be pointed a request. However, any submission or healthcare facility can charge for out that the final rules were modified must be done so in its entirety to the producing such, the representative’s to clarify a claimant’s responsibility to Administration, though it appears from request is not afforded the same submit evidence received from another the rules that it is not required of a limitations on the costs imposed by the source in its entirety. The final rule representative to request and/or pay for producing party. While the SSA evidence was also revised to eliminate “entirety” all of the other records from a claimant’s rules appear to say on the one hand that from the rule for a more practical and hospitalization other than what was a representative is not required to obtain efficient application in the situation provided pursuant to a hospital chart or submit all evidence, the representative where the same evidence had previously request. The claimant or representative must nonetheless verify its existence. been submitted and would result in must inform the SSA, duplication in the record, or A helpful discussion for practitioners to have is one in such instances where the however, of all available evidence which would that focuses on possible solutions (or at least tools) to SSA instructs the claimant require listing the source counterbalance the administrative nightmare and otherwise. of the evidence on Upon adoption of adverse effects of this rule on a small solo practice. the final evidence rules, various SSA forms and questionnaires. the Administration Subsequent to the SSA’s final rules Accordingly, it is highly probable that allowed two exceptions to the evidence on the submission of evidence becoming most ALJs will require being informed submission rule for certain privileged effective on April 20, 2015, there has of the existence of the evidence with communications and attorney work been much discussion and debate as such being submitted regardless of the product. It should be noted that these to whether the new rules require the cost to the representative/claimant. two exceptions also will apply to nonrepresentative to “obtain” all of the One alternative approach to prevent attorney representatives as well. The evidence; however, the actual language the representative from being forced to Administration does provide some found in the rules states that the advance the exorbitant reproduction clarification as to what is considered representative must submit all evidence costs imposed by the medical provider in work product under the rules such as known or to inform of such. The phrase cases of voluminous and costly document analysis, theories, and notes made by “or to inform of such” implies that in retrieval would be to inform the ALJ of the representative. However, facts are some instances it may simply be enough the existence of the evidence and request not protected work product, such as a for the representative to “inform” the that a subpoena be issued by the ALJ medical source statement that contains SSA about the evidence. Thus, an to obtain the documentation; however, the opinion from an acceptable medical argument can be made that it appears the request must still comply with the source. Thus if a claimant’s medical to be sufficient for the representative to applicable regulations for its issuance. source sends his or her representative relate the existence of the evidence to In any event, shifting the responsibility medical records or a written opinion the Administration, but not to actually back on the ALJ to discern what medical about the claimant’s medical condition, produce said evidence. However, while evidence is relevant and should be the representative cannot withhold on the one hand the rule can be read as obtained in the claimant’s case might those records or that opinion based providing the representative an alternative circumvent the representative from being on the work product doctrine adopted solution that addresses the burden of accused of failing to produce all known under these rules. However, the actually requesting, obtaining, and relevant medical documentation. representatives can still protect their submitting “all” evidence no matter how The next issue which the rule consultation with any medical source difficult, onerous, and/or cost prohibitive attempts to address is in defining what about the claimant’s medical condition, such might be, this rule also amends the it means in reference to evidence that meaning that if a representative takes rules of conduct which now requires a “relates” to a disability claim. In this notes during a discussion with the representative to act within a reasonable rule, the SSA is apparently invoking the claimant’s medical source, those notes time period to produce such evidence so typical meaning of the word “relates.” taken by the representative along with that such can be considered as soon as Therefore, the term “relates” is to be the representative’s theories and analysis is practical. Thus, most practitioners are understood to mean that if the evidence would be protected from disclosure now experiencing ALJs (administrative relates to the disability claim, there is a as work product. It is noteworthy law judge) issuing their own rules logical connection between the two. In that the rule still provides that oral requiring representatives to obtain such this instance, the SSA is not vague with communication with a medical source is evidence within a sufficient timeframe regards to the interpretation. Accordingly, also privileged. for it to be properly considered by there is no need for further discussion of The additional privileged the decision maker. It is worth noting this term in regards to the rule. communication exception relates to 20 x The Trial Lawyer


attorney-client privilege. The basic definition of attorney-client privilege emanates from the legal concept that protects certain communications between a client and his or her attorney and prevents the attorney from being compelled to testify to those communications in court. The rules recognize the basic definition in its application generally. Accordingly, the rules adhere to the traditional concept that confidential communications between a claimant and an attorney are protected unless the privilege is waived. This traditional concept is also extended to communications between a claimant and a non-attorney representative under the rules. Now that there has been discussion as to the operative terms and definitions found in the rules along with certain issues and exceptions, it is important for the legal practitioner to envision how the rules will most directly affect the practice of law. A helpful discussion for practitioners to have is one that focuses on possible solutions (or at least tools) to counterbalance the administrative nightmare and adverse effects of this rule on a small solo practice. The use of technology can once again play a major role in simplifying the arduous and potentially overwhelming collection of evidence and the duty of the representative to verify it with regards to the application of this rule. One suggestion is to leverage technology by the use of an online form and/or portal created and imbedded on the firm’s website where the disability client can report and/or update, in some brevity and clarity, the results of the latest visits or information gathered from a medical source. If such forms were to include simple fields/questions requiring specific information to be entered, rather than a perhaps lengthy description taken over the phone, then it would provide an easier and more efficient means for a legal representative to maintain their duty to submit all evidence as well as its verification. Additionally, the use of an online form and/or client portal would allow for more strict oversight and due diligence for a law office to monitor staff that is tasked with

collecting and submitting all of the required evidence under the Rules to the Administration. However, as with any system of information collection, it must be remembered that the information is sometimes as only as good as the reliability of the reporting source. Hence, client education is a must. Upon discussion of the above identified issues in regards to the Administration’s evidence rules, it becomes apparent that they will not only require a much closer examination of the evidence presented to the SSA, the new rules will also involve an increased duty for the representative to extensively and carefully develop their client’s file. This will also create the basic duty of the claimant or their representative to accurately list the source of any and all available evidence when responding to SSA forms and/or questionnaires, impacting the effective representation of disability claimants in that it will encourage a much more detailed and involved process for the collection of evidence and its submission to the SSA. Thus, it will be necessary for the representatives to adjust their training and supervision of the staff responsible for both gathering and sending any evidence to the SSA. In conclusion, the new SSA evidence rules should be viewed in conjunction with the Rules of Professional Conduct already imposed upon attorneys when acting as advocates on behalf of claimants. There is no doubt that the policymakers started with good intentions in drafting a workable SSA evidence rule, but the rule could be easily revised for simplicity’s sake to allow for practical application by the Social Security practitioner. The solution would be to utilize Rule 3.3 of the ABA Model Rules of Professional Conduct as a framework: Advocate Rule 3.3 Candor Toward The Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously

made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Accordingly, a straightforward SSA evidence rule would protect the practitioner from the Rumsfeldian trap of being forced to grapple with not only the “known unknowns” but also the “unknown unknowns” and simply require the representative “to inform the tribunal (ALJ) of all material facts known to the lawyer (representative) that will enable the tribunal (ALJ) to make an informed decision, whether or not the facts are adverse.” _____________________________ John R. Colvin is a solo practitioner in Winchester, Tennessee licensed to practice law in Tennessee and Alabama with over 20 years experience representing Social Security claimants across the Tennessee Valley region. The Trial Lawyer x 21


PRODUCTWATCH

By William Ourand, Esq. • Newsome Melton, P.A.

WHAT TRIAL LAWYERS NEED TO KNOW ABOUT THE EXPLODING E-CIGARETTE EPIDEMIC E-cigarettes have become a multibillion dollar industry catering to millions of U.S. consumers. While the businesses behind these devices tout them as being a safe alternative to smoking traditional cigarettes, recent events have shown that these devices pose their own unique set of dangers. 22 x The Trial Lawyer

The potential for these devices to cause catastrophic injury was recently highlighted by surveillance footage showing an e-cigarette exploding in a man’s pocket as he waited in line to check out at a convenience store. And this was not an isolated incident — a simple Internet search reveals pages of

headlines about e-cigarette explosions resulting in catastrophic injuries. The incredible profits being generated by the sale of e-cigarettes make it clear that these products are not going away any time soon. Unfortunately, this means that unscrupulous businesses will continue


to flood the market with defective devices. Past experience with dangerous consumer products, including the BIC lighter litigation from a few decades ago, has shown that the only way to force industry change and protect consumers is for trial lawyers to zealously pursue meritorious cases. This article is intended to serve as a primer for anyone taking on such a case, and will do so by analyzing the products themselves, the reasons why these devices are exploding, the current state of regulation for these devices, and finally, the legal theories and hurdles associated with pursuing one of these cases. What Are E-Cigarettes And Why Are They Blowing Up? E-cigarettes are battery-powered devices that mimic the sensation of tobacco smoking by releasing a vapor which resembles traditional cigarette smoke. The first e-cigarette was created in 2003 by Hon Lik, a Chinese pharmacist who invented the device in the hope that he could use it to quit smoking (it did not work — as of June 2015, he still smoked both e-cigarettes as well as traditional cigarettes). E-cigarettes exploded in popularity in the years that followed, and now constitute a $3.5 billion dollar industry. More than nine million American adults are estimated to use e-cigarettes. And more than three million middle and high school students used e-cigarettes in 2015, accounting for more than half of the 4.7 million middle and high school students who used at least one tobacco product that year. The devices come in a variety of shapes and sizes, ranging from cigarette look-a-like “minis,” to midrange “vape pens,” and up to the large “advanced personal vaporizers.” All of the e-cigarette varieties rely upon a heating element that boils a liquid solution poured into the device. The liquid solution is often a combination of nicotine, flavoring, and various chemicals intended to improve the amount and flavor of the vapor produced.

The heating element in an e-cigarette requires a power source. This need is met, in turn, by the use of lithium ion batteries. And therein lays the problem. Lithium batteries contain flammable electrolytes. When these electrolytes are heated to their boiling point, the battery’s internal pressure can cause the battery to rupture, at which point the electrolytes will catch on fire. This dangerous propensity is magnified in the case of e-cigarettes because the batteries are installed at the end of the cylindrical devices, which are their weakest points. As such, when a lithium ion battery ruptures in a e-cigarette, the pressure builds quickly and causes the device itself to break apart. This in turn can cause a fragment of the e-cigarette container, or part of the lithium ion battery itself, to be propelled “like a high-powered rocket.” E-cigarette explosions can be incredibly dangerous. Examples of media reports regarding injuries attributed to e-cigarette explosions from the year 2016 alone include:

• A semi-truck driver who suffered facial injuries and crashed his truck after his e-cigarette allegedly exploded while he was driving • A woman who suffered severe burns and lost two teeth after her e-cigarette allegedly “exploded and caused her car to go up in flames” • A former professional soccer player who is now “unrecognizable” after an e-cigarette allegedly “exploded in his mouth” and “the product’s battery blew through his cheek” • A woman who suffered third degree burns to her legs when an e-cigarette allegedly exploded in her pocket — she further claims that “the battery exploded with such force that it became lodged in her car’s dashboard” • A teenager who has been left completely blind in his left eye

Unfortunately, there is currently no source to turn to for accurate, up-to-date statistics as to e-cigarette explosions. The US Fire Administration previously reported that 25 fires had been caused by e-cigarette explosions between 2009 and 2014. However, as one media outlet has pointed out, “that list is based only on incidents reported by the media,” and “[g]iven that vaping’s seen a surge in popularity since then — last year, the CDC (Centers For Disease Control) reported a three-fold increase among middle-and high school students alone — the number almost certainly is rising.” Indeed, “[a] quick Internet search shows at least a dozen explosions in 2015 alone.” From the Unregulated “Wild, Wild West” to FDA Oversight For more than a decade, the manufacture, distribution, and sale of e-cigarettes was completely unregulated, prompting officials from the Food and Drug Administration (“FDA”) to describe the e-cigarette marketplace as being “the wild, wild West.” Until very recently, it remained unclear as to which federal agency would even attempt oversight over the safety of the design and manufacture of the devices and their component parts, including the lithium ion batteries. While the Consumer Product Safety Commission (“CPSC”) took action to address the problem of exploding lithium ion batteries in hoverboards, the agency disclaimed responsibility for the similar danger posed by e-cigarettes, instead deferring to the FDA. The FDA, in turn, initially proposed to regulate the “health effects” associated with e-cigarettes in 2014. Notably, however, the 2014 FDA proposal lacked any language addressing the electronic components of the devices. The question as to who would regulate the batteries in e-cigarettes was finally addressed on May 3, 2016, when the FDA announced the agency’s final rule construing the definition of “tobacco product” contained in the


Factual And Legal Hurdles To Expect When Litigating An E-Cigarette Case

Tobacco Act of 2009. Under the final rule, the FDA’s regulatory authority includes not only e-cigarettes, but also extends to the “components or parts” of the devices, including the batteries. The FDA specifically rejected the argument made by some commentators that the batteries were beyond the agency’s purview, explaining that it was “concerned about reports of exploding batteries.” The agency further clarified that lithium ion batteries are properly subject to the agency’s authority where they are “co-packaged with other components or parts” of an e-cigarette, or “otherwise intended or reasonably expected to be used with or for the consumption” of e-cigarettes. Although the FDA has now clearly stated that it has the right to regulate e-cigarette batteries, it remains unclear what the agency intends to do with its newly announced authority. The agency has stated that it is working on guidance, “which when final … will include FDA’s current thinking regarding compliance with existing voluntary standards for [e-cigarette] batteries.” However, others in Washington are calling for more urgent action. Senator Charles Schumer (D)NY succinctly summarized this point of view, bluntly stating that the FDA should “do its job and investigate why 24 x The Trial Lawyer

these cigarettes are exploding and force the e-cigarette manufacturer to present this from happening.” He further stated that the agency “should determine whether these vaping devices are flawed and require a recall if necessary, to make sure these explosions stop.” To add to the uncertainty, businesses making a big profit off of e-cigarettes promise to fight the FDA’s new regulatory authority in the judicial system. They have been successful in blocking the FDA’s attempt to regulate e-cigarettes in the past. In 2010, the U.S. Court of Appeals for the District of Columbia ruled that the FDA lacked authority to block the import of cigarettes under the Federal Food, Drug, and Cosmetic Act (“FDCA”). The Court reasoned that the FDA could only regulate “therapeutically marketed” tobacco products under its authority from the FDCA. However, the Court went on to observe that “the FDA has authority to regulate customarily marketed tobacco products — including e-cigarettes — under the Tobacco Act.” In light of this observation, the FDA is in a much stronger position to defend its new e-cigarette rule, which is based upon the Tobacco Act, than it was when it previously attempted to regulate e-cigarettes under the FDCA.

At their surface, exploding e-cigarette cases resemble prototypical products liability actions: they revolve around poorly designed and manufactured products, and include a significant warning component. As such, the causes of action to be advanced in such a case will include those pressed in other products liability cases: strict liability, negligence, failure to warn (pre and post sale), and breach of expressed and implied warranties. However, the unique nature of the e-cigarette marketplace creates a plethora of legal and factual hurdles which trial lawyers must be prepared to resolve. At the outset, many of the usual parties to a products liability claim may prove difficult to track down, serve, and obtain a collectable judgment against in an e-cigarette case. The devices are typically sold by a store front or online retailer, often with some horrible name that incorporates a bastardization of the word “vapor,” that may very well have no assets other than the vape pens they are offering for sale. In such a scenario, the chances are slim that the sketchy storefront would have an insurance policy that would cover a products liability claim. At the exact opposite end of the “chain of distribution” often sits a Chinese manufacturer. According to the Government Accountability Office, some industry experts estimate that up to 90% of e-cigarettes sold in the United States were imported from China. That is bad for products liability plaintiffs. Past experience has shown that Chinese defendants can be difficult, and at times impossible, to serve. Also, assuming service can be effectuated, any judgment obtained may be moot as the Chinese government may not be willing to recognize an American judgment. There is a silver lining, however. Even assuming the retailer is a defunct storefront and the manufacturer is a Chinese entity that will thumb its nose


at an American court, there remain other parties who may be found liable if the facts warrant. Such other possible defendants include the importer and component part suppliers. Several major brand-name manufacturers have their hands in the lithium ion battery business, and may prove viable defendants if the facts warrant. The necessary steps for pursuing an importer, including the proper arguments to make as to whether the importer should be treated the same as the manufacturer for purposes of legal liability, and the component part suppliers, are difficult but often not impossible tasks for skilled products liability attorneys to accomplish. And if pursued correctly and vigorously, these avenues of relief can open up pockets that are often more than sufficient to compensate clients for catastrophic injuries of the severest magnitudes. Once the culpable parties are tracked down and brought into the lawsuit, the next hurdle will likely involve some type of “victim blaming” defense in the form of product misuse or alteration. One common refrain from the e-cigarette lobby has been that the products explode because of “user error.” The common theme of the “user error” defense is that the consumer has “overcharged” or improperly inserted the battery into the device. This defense seems feeble when one remembers the many other common consumer products that are subject to “overcharging” and similar misuse, but do not explode and maim consumers. For instance, it seems fair to say that the average consumer has left their cell phone plugged in and charging overnight without waking up to a live grenade in their bedroom the next morning. Additionally, this defense can be turned on its head as even industry insiders have recognized that the businesses profiting from the sale of e-cigarettes have not done enough to warn consumers about the dangers associated with the products’ lithium ion batteries. E-cigarette defenders also like to point to modifications of the devices as the reason for explosions. It is no secret that the so-called practice of “vape

modding,” which involves adding new hardware, batteries, or other components to an e-cigarette, has become incredibly popular within the e-cigarette industry over the past several years. In the legal setting, well-paid defense lawyers will try to use this to bar the courthouse doors, arguing that any such modification constitutes a “substantial alteration” of the product. If the facts of a case implicate a potential modification defense, it is important to anticipate such an argument and be prepared to rebut it, including by the development of expert proof that any modification did not cause or contribute to the incident. Similarly, it may be possible to rebut a modification defense by arguing that the particular modification at issue was reasonably foreseeable. This may be a particularly strong means of rebuttal given the immense popularity of modifications within the e-cigarette industry.

Conclusion E-cigarettes have become the cornerstone of a multi-billion dollar industry that caters to millions of American “vapers.” Years of regulatory indifference led to a marketplace saturated with dangerous and defective devices that are literally blowing up in people’s faces, resulting in catastrophic injuries. Although the FDA has now signaled its intention to wade into this industry and begin regulating the devices, it remains to be seen what that regulatory oversight will ultimately look like. If past experience with similar product failures is any indicator, the only way industry change will be achieved is if trial lawyers from across the country take on meritorious cases and hold the responsible parties accountable before civil juries. *Citations available on request

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LEGALBRIEFS

Loretta Lynch Demolishes Every Argument FOR Bathroom Law With the nationwide debate over North Carolina’s controversial “Bathroom Law,” it has become necessary for the federal government to intervene. The Federal Department of Justice announced that it would be launching a lawsuit against the state of North Carolina over the HB2 law that bars trans individuals from using the restroom which corresponds to their gender identity. Attorney General Loretta Lynch led the charge against the state, offering a rousing show of support for trans individuals. Lynch said the law was “state-sponsored discrimination.” Besides decrying the law, Lynch directly addressed Trans citizens, particularly those suffering the discrimination in North Carolina: “We see you. We stand with you. We will do everything we can to protect you going forward ... history is on your side.”

Nexium: Is The Purple Pill Shutting Your Kidneys Down? An estimated 15 million Americans are currently taking drugs like Nexium which work to control heartburn, indigestion, and acid 26 x The Trial Lawyer

By Ring of Fire & Drug Safety News

reflux. Unfortunately, those who turn to Nexium and other protonpump inhibitors will need to proceed much more cautiously as studies have confirmed that taking these drugs increase the chance of kidney problems — and even kidney failure — by as much as 50 percent. Proton-pump inhibitors are a class of drugs which include Nexium, Prilosec, and Prevacid which work by blocking the secretion of acid into the stomach. These extremely common medications are sold both by prescription and over-the-counter. The recent discovery of this increased risk of chronic kidney disease and even failure means that much more care must be taken in determining if a person should be popping the purple pill. The issue with Nexium and other drugs in its class is that since their creation in the 1980s, they were considered to be very safe, with no real side effects. This led to the popularity of the drug and a much more lax attitude about taking large doses and prescribing it to any and all patients with reflux issues. It is very possible that these drugs, prescribed and taken in such massive numbers, are being over-prescribed. Studies have suggested that as many as 75 percent of those who take protonpump inhibitors need not do so. In addition to being connected to chronic kidney disease, Nexium and other drugs like it have been linked to increased rates of heart attack, bone fracture, and infections of the gut. The research was conducted by Johns Hopkins University and it studied over 250,000 patients to reach its conclusion that Nexium and protonpump inhibitors increase the rate of kidney disease. Researchers concluded that doctors and patients should take a greater degree of caution when prescribing and purchasing protonpump inhibitors, but say that further research is needed to draw stronger connections between the drugs and

the disease. Doctors recommend that patients first try to control their acid issues by changing their diet and creating a healthier lifestyle. Over 13 percent of the population suffer from kidney disease. A case of chronic kidney disease, if prolonged, can lead to kidney failure and the necessity of a kidney transplant, a dangerous and invasive surgery. With 15 million Americans currently taking these drugs, it is clearly a massive market for Big Pharma. As of now, the companies that produce proton-pump inhibitors have either declined to comment on the study or have maintained that their drugs are safe to take according to the label.

House Refuses To Pass Legislation Preventing Drug Price-Gouging It’s a heartwarming bipartisan issue in the House as both Democrat and Republican congressional members fight to keep a corrupt pro-pharma policy in place, screwing over the average American. Both congressional Republicans and Democrats are working to halt a provision put forth by the Department of Health and Human Services which would remove the incentives currently in place for doctors to prescribe the most expensive pharmaceutical rather than the most effective one. Under the current system, doctors make a decent percentage of any drug they prescribe, incentivizing them to prescribe the highest priced drug. The rule being proposed by the Department of Health would lower the percentage


doctors make from 6 percent to 2.5 percent, as well as adding on a daily fee. In addition to this shift, the regulation would also explore other ways of compensating doctors for prescription, possibly rewarding doctors based on how effective the medicines they prescribe turn out to be. Of course, Big Pharma is staunchly against any regulations which would cut down on their profits or make it disadvantageous for high-priced pharmaceuticals to enter the market. As it stands now, the prices of drugs are unregulated, opening the door to “pharma bro” Martin Shkreli and others like him to game the system. Pressure from the drug industry is so strong on this issue that both House Democrats and House Republicans have put forth measures to halt and kill the proposal made by the Department of Health concerning the new rule. Even if we wouldn’t have expected reform from the Republican side of politics, the fact that house Democrats have let their constituency down in this effort is disappointing. The effort to control the ridiculous out-of-control spending in the pharmaceutical industry must be initiated at some point. Even if this proposal is extreme, it is at least a starting point and not an issue that should be cast out completely.

Johnson & Johnson Appeals The Talcum Powder Verdict Johnson & Johnson will appeal the court’s latest decisions about the talcum powder lawsuits. The pharmaceutical giant was recently ordered to pay almost $130 million in compensatory

and punitive damage to the families of two women. More than 1,200 total litigations have been filed by people who claim they developed ovarian cancer after using J&J’s talcum powder to sprinkle their genital area and underwear. The jury held J&J responsible for conspiracy, negligence, and fraud since it never informed customers about the possible dangers it was aware of. Ovarian cancer’s mortality rate is, in fact, the highest among the various gynecologic malignancies. One of the attorneys for Jackie Fox, an Alabama woman whose family the St. Louis jury awarded $72 million after she died of ovarian cancer, introduced disturbing evidence that allegedly proved how J&J intentionally concealed the truth. In a September 1997 internal letter, a medical consultant suggested that denying the obvious risks could be detrimental to the company public image. However, Big Pharma still wants to fight back and refuse to accept the verdicts that keep pinning it to the wall. Carol Goodrich, Johnson & Johnson’s spokeswoman, explained that the company still wants to defend its product, the safety of which she claims has been confirmed by more than 30 years of research. Several agencies such as the International Agency for Research on Cancer (IARC) and the American Cancer Society, did, in fact, note that the evidence that links talc with ovarian cancer is inconsistent. J&J also noted how the epidemiological data showed in a recent study from the Harvard School of Public Health found no association between cancer and talc use. On the other hand, other large studies that substantiated talcum dangerousness have been published, and not only have they proved to be sufficient to convince the jury, but J&J also ignored them over the course of the last decades.

Pfizer Drops $150 Billion Proposed Merger After Obama Cracks Down On Corporate Inversion Pfizer dropped the $150 billion proposed merger deal with Dublinbased Allergan after the Obama administration cracked down on corporate inversion deals, a move that basically allows a corporation to move its headquarters overseas to cut their U.S. tax bills. The decision means Pfizer will remain a US corporation and the $21 billion in tax revenue it generates will remain in America. Now the future of corporate inversion deals are still murky, but the president and some of the candidates running for his job are renewing their call for tax reform. The U.S. Treasury Department imposed strict, new rules on corporate inversions and the president called on Congress to close corporate tax loopholes. This is the administration’s third attempt to tighten the rules of taxdriven mergers. Corporate inversions are deals in which a U.S. company buys a foreign rival and adopts its lower tax rate. “It sticks the rest of us with the tab,” the president said, when companies exploit loopholes like inversions. Although the president didn’t specifically mention Pfizer, the drug giant announced that it’s terminating the planned merger and will pay Allergan $400 million for walking away from the deal. Pfizer announced the move last November, which would have created the world’s largest pharmaceutical company and let Pfizer shift its corporate residence to Ireland for its lower tax rate. The Trial Lawyer x 27


Drug Industry Exploits Death To Profit From Its Drugs Pharma company Valeant Pharmaceuticals is racing to rival famous pharma boy Martin Shkreli. In light of California’s more favorable view of physician-assisted-suicide, last year the company smelled blood and jumped to double the price of a drug which provides the calmest and most efficient death to a terminal patient. Seconal was discovered to be an excellent way to kill people painlessly in the 1930s. Like many drugs during the time and in decades following, it was intended as a sleeping aid and to deal with housewives’ undiagnosed depression. Unfortunately, it killed people pretty consistently when they took too much or combined it with alcohol. It was then repurposed as a way to painlessly kill a terminal patient in states that allowed the practice. Because of the lag in demand for the drug in past decades, there is no generic alternative. If a patient wants to die via physicianassisted suicide in the states that have legalized it, they must pay the $3,000 price tag, simply because Valeant decided it wanted to charge that much. Some health insurance companies will cover the price of the drug, but that doesn’t justify the price for those whose insurance won’t cover it.

28 x The Trial Lawyer


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By Robert T. Eglet, Esq.

IDEAL

THE QUALITIES of a

TRIAL LAWYER

I am often asked by young lawyers what I think are the most important characteristics of a successful trial lawyer — a broad question not easily answered with a simple, concise response. This often-repeated question has required me to engage in critical introspection as well as objective observations of those colleagues whom I believe to be exceptionally successful trial lawyers.

30 x The Trial Lawyer


It is important to note that when I use the adjective “successful,” in this context I am not speaking of financial success. Indeed, some of the least “successful” trial lawyers whose paths I have crossed have made tremendous amounts of money. But money is not the measure of success for a trial lawyer. Many of the successful trial lawyers I have had the privilege of knowing have spent their entire careers as public defenders, civil rights lawyers or legal aid attorneys. It is equally important to note that I certainly do not profess to possess all or even most of the qualities that I attempt to describe herein. I am, like most people, a work in progress, continuously trying to improve as both a trial lawyer and a human being. Sometimes I succeed. Often I fail. The qualities described are aspirational. Goals for all of us who want to be better trial lawyers. VISUALIZATION If you do not know what your desired destination is, it is impossible to draw a map of how to get there. Seeing the outcome you desire, and believing you can achieve it, will provide the motivation to prepare as necessary to achieve your desired outcome. The first thing I do to begin my trial preparation is decide what my desired verdict is and then continuously visualize the jury returning that verdict. I visualize the verdict I want being read when the jury returns and work backwards from there. The use of visualization is important for all aspects of your trial preparation. As you are preparing your opening statement, closing argument and direct and cross-examinations, visualize yourself knocking it out of the park. Continue to use visualization techniques as the trial proceeds before each argument or witness exam. Visualize it happening, and prepare in your mind for things that may otherwise be unexpected. This helps me prepare for the uncooperative or combative witness, as well as the objections that may need to be responded to or may require me to alter my witness examination or argument. The Trial Lawyer x 31


WORK ETHIC Whether it is your first or one hundredth jury trial, your client’s fate will depend on the amount and quality of preparation you commit to their trial. Trial lawyers who lack the self discipline to put in long hours and significant time into preparation, or who have become so delusional about their talent in the courtroom they believe they do not need to spend as much time preparing, are hurting themselves and their clients’ cases. Becoming and eventually sustaining yourself as a successful trial lawyer requires dedicating yourself to preparation, preparation and more preparation. This equates to early mornings, late nights, weekends, and on occasion, holidays. Trial work is not for everyone. To be a great trial lawyer means being willing to sacrifice a substantial portion of your time and energy during your

life to achieve this goal. Since we are all cursed with a limited amount of time on this earth, dedicating a large part of that time to trial preparation requires single-minded commitment. I have personally witnessed exceptional preparation overcoming the shortcomings of talent or experience. I have never witnessed experience or talent making up for a lack of adequate preparation. Talent and experience assist in confidence and courage, but preparation wins trials. FOCUS Successful trial lawyers have an exceptional ability to sustain intense focus and are able to develop a level of concentration unknown to most. This is a skill that is learned, it is not innate. The key is preparing a plan for each part of trial, being able to delegate what can and should be delegated to other lawyers or support staff, and

concentrating time and efforts on what only you should be doing. They reach their potential by spending most of their time focusing on what they do well. Since strength is specific to all individuals, not every successful trial lawyer does everything involved in trial preparation (or trial) well. I surround myself with people who complement my strengths and make up for my weaknesses. Usually, these are other lawyers or support staff within my firm; but, on occasion, I go outside my firm to find the right person. Successful trial lawyers cannot be afraid to accept that they have weaknesses. They must recruit others to collaborate with who are strong where they are weak. To improve my focus, I spend 70 percent of my time on the areas that are my strengths; 25 percent learning new things; and 5 percent on my areas of weakness. Growth equals change. If


you want to get better, you have to be willing to keep changing and improving. This means getting out of your comfort zone and trying new ways of presenting your cases. One of the lessons I have learned over the years is in order to sustain success as a trial lawyer, you have to be willing to continuously change. Trial lawyers who are trying their cases the same way they were even five years ago are being, or already have been, left behind. STORYTELLING Humans are hardwired for story. It is the way our evolutionary minds have developed over hundreds of thousands of years. When you tell a story, you are laying the foundation for successful communication because storytelling is at the essence of how humans relate to each other. When we sense a story coming our way, the depths of our minds open to receive whatever communication is about to be transmitted. That is because storytelling is key to how we think, decide and behave. Story is the foundational instrument of thought. Most of our experience, our knowledge and our thinking are organized as stories. Stories are easier to remember because stories are HOW we remember. PowerPoint slides, animations, video re-enactments, and all of the other technology we now use in trial, have changed the way we prepare and present our cases to juries. This technology provides us with powerful tools in the courtroom; however, successful trial lawyers do not sacrifice their talent as storytellers for technology. Storytelling is the ability to paint in the minds of jurors a compelling story with words that holds their attention, persuades their minds and inspires them to take action. Some of the best opening statements and closing arguments I’ve witnessed were done without a single demonstrative exhibit. This is not to say that I am discouraging the use of technology in trial. Those of you who have seen me in trial or have attended my seminars know that I use technology extensively throughout all aspects of

my trial presentations. However, there is a right way and a wrong way to use technology. Too many trial lawyers have become dependent on PowerPoint and other tools to tell their trial story instead of using this technology to accent their telling of their trial story. I fell victim to this trap myself for a period of time. Successful trial lawyers know that the crafting and telling of their trial story is key to persuading juries. Contrary to conventional wisdom, the ability to be a great storyteller is not just a gift of talent. Anyone can learn to become a great storyteller if they are willing to put in hard work. When I hear aspiring trial lawyers say, “I’m just not a good storyteller,” my response is always the same: “Then learn how to tell a good story.” It is a learned skill. People who believe that some people are born with the ability and others are not do not realize that virtually all good storytellers learned their skill. Perhaps not through formal training, but from listening to and learning from other good storytellers. Usually, younger family members will learn this skill from older family members by listening and learning from the stories they are told. However, there are numerous books on effective storytelling as well as multiple storytellers’ clubs, groups and events around the country. Read a few books, attend a storyteller’s event and practice telling stories to your family. EXCELLENCE Perfection is rarely achieved by any person or organization; however, demanding excellence in yourself (and in your law practice) will move you closer to perfection. I have never conducted a perfect jury selection, given a perfect opening statement or closing argument, or thrown a perfect direct- or crossexamination of a witness. And I have certainly never tried a perfect case. That said, I have on occasion achieved excellence in each of these areas. Not perfection, but excellence. When you strive for perfection, you will likely fall short, but the shortfall will often result in excellence. This requires

a burning desire to always be working to expand your skills and knowledge in order to continuously improve your abilities as a trial lawyer. Great trial lawyers are continuously learning and trying innovative techniques for their trial presentations. “Successful” trial lawyers are never complacent or satisfied with their knowledge or abilities in the courtroom. The moment that happens, you have lost your edge. PASSION I have never met a “successful” trial lawyer who wasn’t passionate about the causes they fight for in the courtroom. Nearly all truly “successful” trial lawyers come from humble beginnings or overcame significant hardships to achieve their success. Many of them grew up in poverty and had front-row seats to oppression, prejudice or injustice. Understanding the pain of injustice is an important component of becoming a successful trial lawyer. A trial lawyer who cannot understand or relate to the injustice their clients are experiencing cannot adequately convey that injustice to a jury. Trial lawyers who have experienced the pain of injustice possess an authentic passion which shows up in the courtroom. They do not have to fake their emotion and passion for their clients’ causes. It is as natural to them as breathing. Their passion is authentic because it is simply part of who they are. HUMILITY Humility may be the quality that successful trial lawyers struggle with most. I am certainly no exception. I believe it is, however, an important quality for sustaining our success. If we are not diligent about preventing the outgrowth of arrogance that success can often bring, we can lose our way and forget why we became trial lawyers. I do not know any successful trial lawyer (in the way I define it here) who was driven by money to become a trial lawyer. Financial reward can be, and often is, a result of success as a trial lawyer … but it is never the reason The Trial Lawyer x 33


successful trial lawyers are compelled to succeed. So to avoid the trappings that financial success can bring, it is important to step back from time to time and remember why we became trial lawyers. I refer to this as “keeping my eye on the ball.” And I do this by having a meeting with the lawyers and staff in my office at least once a year where we discuss this very subject. We remind each other that representing the injured and oppressed is a calling, not just a job. We remember that our sole purpose is to fight for our clients because they cannot fight for themselves. We strive to remember that the reason our firm exists is to help people who desperately need our help. And, we remember that profit is simply a “result,” not the reason we took this path. TEACHABILITY As a young lawyer I was extremely fortunate to have great mentors who took an interest in me. In my early career, these mentors included Mitch Cobeaga, Franny Forsman, Betsy Gonzales and Rex Jemison. After a little over a year in practice, I had just won my sixth jury trial in a row. Rex Jemison walked into my office and said to me in a very serious tone, “Robert, you need to lose a trial soon!” After exclaiming in response, “Why should I want to do that?” Rex said to me, “Because you aren’t learning anything.” And any successful trial lawyer will tell you that trial lawyers learn more, and become better attorneys, from the cases they lose rather than the cases they win. This is because successful trial lawyers never pay for the same mistake twice. A trial lawyer who makes no mistakes, makes no progress; however, the trial lawyer who keeps making the same mistakes also makes no progress. To learn from your mistakes, you must be teachable. Lack of teachability in some trial lawyers is rooted in their own success. Some trial lawyers believe that if they can simply learn the skills necessary to win a certain number 34 x The Trial Lawyer

of trials, or obtain a million-dollar verdict, they no longer have to grow. “Successful” trial lawyers do not think that way. They know that if they stop learning and growing, they relinquish their ability to achieve the success they are capable of achieving. “Successful” trial lawyers know that what got them there does not keep them there. Mitch Cobeaga had a way of reminding me to stay teachable. A week after obtaining a favorable verdict, he’d consistently ask me: “What have you learned new this past week, and how have you applied that for the benefit of one of our clients?” This helped me to understand that resting on accomplishments prevents achieving bigger, future accomplishments. To be teachable, we must be willing to admit that we do not know everything, and to keep learning from our mistakes. EDUCATOR “Successful” trial lawyers are mentors and coaches to other trial lawyers. They are not worried about giving away any secrets by sharing their trial techniques, methods and ideas. They find inspiration in helping other trial lawyers to be their best and are genuinely pleased when other trial lawyers are successful. Great trial lawyers do not measure their success by

the number of cases they win, the size of their verdicts, or by any accolades they may receive. They do not even measure their success by whether they were able to reach their own full potential with the talents they possess. They measure their success by the number of young trial lawyers they teach to win cases for the people who need our help — and, by how they inspire them to achieve their goals. CREATIVITY Great trial lawyers are creative. They are willing and eager to be creative in their trial presentations. They never allow themselves to get stuck in a rut. They are always seeking to be different in the way they present witnesses, make arguments and use exhibits from trial to trial, even if the traditional way has been successful for them in the past. Successful trial lawyers are not afraid of change, and they get excited about learning new innovative ways to try cases. AUTHENTICITY It is vital that we are authentic in everything we do in the courtroom on behalf of our clients. If we are going to take a case to trial, we must believe 100 percent in our client’s case and in


our client. If we do not, we will not be able to fake it. Jurors have very intuitive minds and they will see right through us. And if the jury senses that we do not believe in our client’s case, they will have no reason to believe either. My partner, Dennis Prince, is remarkable at this because he meets with his clients weekly, during the months leading up to trial, to discuss who they are, how they feel, and where they want to go. In trial, you must be who you are and not try to channel some other person or personality. I have observed lawyers try to do this with disastrous results. To cite just one example, I witnessed a trial lawyer suddenly develop a thick southern accent when trial started. The trial was occurring in a rural area. Neither of us was from the area. I presume he was trying to make the jury believe he was local and contrast me as the outsider from Las Vegas. He fooled no one, and immediately lost all credibility with the jury. The verdict was much worse for him than it would have been if he would have just been himself. This is an extreme example, but this principle applies to things as simple as the way you dress to the natural manner in which you speak. Always be your authentic self. CREDIBILITY Over the past five or six years, I have noticed a disturbing trend by opposing counsel during trial. For years this trend appeared to be conduct that was isolated (at least in my experience) to out-of-state counsel admitted pro hac vice. [Ed. Note: Pro hac vice usually refers to an out-of-state lawyer who is granted permission to participate in a certain case, even though the lawyer isn’t licensed to practice in the state where the case is being tried.] I assumed these pro hac vice counsel did not care about their credibility with the court because it would be highly unlikely they would appear in front of the same judge twice. But in

recent years, I have noticed this trend creeping into the conduct of some Nevada attorneys. All trial lawyers experience trial courts’ ruling against them numerous times on critical pretrial evidentiary issues. This is not an uncommon experience. In most cases, you win some of the pretrial evidentiary rulings and you lose some. As credible ethical trial lawyers, we accept the trial judge’s rulings and we conform our presentation of our case to comply with these rulings. If the trial judge’s rulings are erroneous and they affect the outcome negatively for our clients, we have a remedy. We can appeal. When trial counsel chooses to willfully disregard the judge’s rulings and make arguments or present evidence excluded by the court, this is not only disrespectful of the court and disturbingly unethical, it irreparably destroys their credibility with the trial judge. I recently had a front row seat to this type of conduct that resulted not just in a mistrial, but in defense counsel being found to have willfully violated a substantive pre-trial order and found to be personally responsible for the opposing parties’ costs and attorney’s fees under NRS 7.085. As I watched this unfold, I could not imagine how defense counsel could have possibly thought willfully violating a clear court order could somehow be worth the risk of such a severe sanction but, more importantly, the loss of credibility with the judge. A trial lawyer without credibility has no chance for success. Our credibility is so vital to our success that it is often described as a trial lawyer’s most important asset. We must be vigilant in every court appearance to ensure that we maintain our credibility with the court. To do otherwise undermines our ability to effectively represent our clients. COURAGE You do not have to be a great trial lawyer to try a case, but to be a great

trial lawyer you have to try cases. There is a myth propagated by many in our profession that to become a successful trial lawyer you have to be willing to take unreasonable risks with your client’s future. Courage to try cases comes not from the willingness to take unreasonable risks, but from the confidence which comes from preparing your client’s case from start to finish, as if their case were undoubtedly going to trial. This requires the discipline of having the same work ethic with every case. While it will require more hours and work, you will achieve better results for your clients, whether from jury verdicts or from reasonable settlement offers. The courage to take a case to trial arises from the confidence you have in your case. Your confidence in your case results from your preparation. LOSSES AND PERSEVERANCE In 2003, Robert Adams and I tried a near-perfect medical malpractice case — or so we thought. Our client had been turned into a quadriplegic by the negligent performance of a pain management epidural. During crossexamination of the defendant’s pain management anesthesiologist expert, he admitted that he assumed that the defendant had the syringe connected to the needle with his thumb on the plunger while he was advancing the needle into our client’s epidural space. He also admitted that if the defendant had not had the syringe connected and his thumb on the plunger while advancing the needle into our client’s epidural space, that would have been malpractice. When showed the defendant’s deposition testimony where he admitted he did not have the syringe connected and his thumb on the plunger when advancing the needle into our clients’ epidural space, the defense expert admitted that the defendant fell below the standard of care. During cross-examination of the defendant anesthesiologist, he The Trial Lawyer x 35


admitted that the manner in which he performed the epidural fell below the standard of care. Further, we also had an MRI taken just days before the epidural showing no damage to our client’s spinal cord, and an MRI taken three days after the epidural showing a large black dead spot on our client’s spinal cord right where the defendant was placing the epidural. The jury returned a defense verdict, and we lost what most people would consider the “unloseable” case. My reaction was not admirable. For a time, I literally gave up. I decided I could not be a part of a justice system that could be so unjust. After feeling sorry for myself for a few weeks, my wife and partner Tracy, and my partner Robert Adams, talked me “off the ledge” by telling me to stop feeling sorry for myself and to remember it was our client who was hurt, not me. They reminded me of why I became a lawyer and that if I quit, I would be abandoning my own professed principles. In 2014, Will Kemp and I spent five months trying a case against a pharmaceutical company that we believed had caused great harm to two of our clients. (We simultaneously represented numerous other clients against this same pharmaceutical company regarding the same drug for the same harm.) The case was very complex, and required enormous amounts of resources — both financial and staffing — to prepare and try it. Causation was difficult to prove, but we truly believed we had the science and experts to overcome the obstacles. The jury returned a defense verdict. I was no less disappointed than I was from the defense verdict in 2003; however, my reaction that time was much more mature and appropriate. We began the second trial against this pharmaceutical company in the summer of 2015 on behalf of two more of our clients. Instead of just putting on the same case with the same experts and the same theory of liability and causation, we engaged in a critical analysis of the previous trial and tried a tighter, stronger and more effective case. After eight weeks of trial, we were able to 36 x The Trial Lawyer

come to a “resolution” on behalf of all of our clients with the pharmaceutical company. I learned a lesson from my poor reaction to my 2003 loss that prepared me for the right attitude after my 2014 loss. This lesson gave me the power to persevere and to move forward to achieve a “resolution” for my clients. No successful trial lawyer goes through their career without losing cases. If they do, they are only trying the easy cases and settling or withdrawing from the difficult ones. There are times in every successful trial lawyer’s professional life when it appears that all is lost. It is not the losses that inevitably occur in all of our careers that will measure us, it is how we respond to them. INSPIRATIONAL Successful trial lawyers know that their primary objective is to inspire others to provide full and adequate compensation to their clients for the harms they have suffered. “Others” include insurance adjusters, opposing counsel, mediators, arbitrators, judges, and jurors. To inspire others, from adjusters to jurors, we must be professional, courteous, credible, and be able to convey our client’s story in a manner that will inspire each of these entities to want to fully compensate our clients. Whether you believe you will win your trial or you believe you will lose your trial, you will achieve what you believe. This often-used statement, in various forms, is as true for trial lawyers as it is for any other person seeking success. Virtually every great trial lawyer who has sustained success over decades of practice believes with every fiber of their being that every time they start a trial they will win. A positive attitude about your case is a powerful thing that will influence your client’s attitude and, in turn, influence their aptitude as they testify their story to the jury. A positive attitude is an infectious thing that will influence the attitude of your partners, associates and staff, and in turn it will influence their aptitude as they work on your client’s case. Positive attitude

inspires increased aptitude. Believing they will win inspires successful trial lawyers to work harder to ensure a win, which results in better preparation, which leads to more confidence and increased performance during trial. I am not saying we ignore problems with our cases. I am, however, suggesting that going into trial with “the sky is falling” attitudes will result in the sky actually falling every time. Problems are created to be solved, not just to worry about. At our firm, we do not allow negative attitudes while preparing for or during trial. We all go into trial believing we are going to win. Do we win every trial? Of course not. But losses are rare. CONCLUSION There are certainly other qualities of successful trial lawyers that I did not mention here, but remember, this article is titled “The Ideal Qualities of a Trial Lawyer,” not “All the Potential Qualities of A Trial Lawyer.” Additionally, this is an opinion piece and not a hardnews researched article. It may even be surprising to you that I did not mention “character” as an ideal quality of a trial lawyer. But that was purposeful, not an oversight. This piece is meant to be an opinion about the qualities of “successful” trial lawyers, not a debate about peoples’ character. It is not that I do not believe good character is an important quality for all people to have, regardless of their profession. However, good character can mean different things to different people based upon their personal values, religious faith, life experiences, or upbringing. Many people believe that good character means putting family first and living a balanced life. But those traits do not necessarily exist in those I believe to be successful trial lawyers. Most successful trial lawyers do not put their families first, and do not live a balanced life. They tend to be driven to the extreme; are absentee husbands, wives and parents; and work all the time. This is neither a criticism, nor a glorification. It is simply an observation. Ask my family.


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ARE YOU EATING

ANTIBIOTICS

IN YOUR DINNER? (HINT: YES, YOU ARE.) By Martha Rosenberg

Before the discovery of antibiotics, people could and did die from a simple cut, warned Dr. Sameer Patel, an infectious disease specialist at Lurie Children’s Hospital in Chicago not too long ago — and those days are returning.

38 x The Trial Lawyer


Recently I caught up with Senior Staff Scientist at Consumers Union Dr. Michael Hansen to ask how the 2013 FDA guidance on antibiotic resistance, which asked drug companies selling antibiotics to farms to voluntarily change the approved uses on their labels, was working out. Livestock operators use antibiotics by the ton to make animals gain weight with less feed. The new FDA guidance caused Pharma companies who make antibiotics for livestock to remove “growth production” from the approved use on their labels, he told me, but the companies have largely just replaced the approved use with “disease prevention” and are still routinely using the drugs. One chilling example of how the label change has not removed antibiotics is seen in feedlots, said Dr. Hansen. Feeding cattle grain instead of a more natural diet produces a high level of liver abscesses, he said and feedlot operators routinely give them the antibiotic Tylosin for the abscesses thus “preventing disease.” Tylosin reduces abscess incidence by 40 to 70 percent in such cattle according to medical journals. Investigations by Consumer Reports reveal that U.S. meat is full of “pathogens, commensals and antibiotic resistant bacteria” regardless of the meat’s source, Dr. Hansen told me — including producers who advertise as being antibiotic-free! A stellar example of such contaminated poultry was the mega poultry producer Foster Farms, which was linked to a 29-state outbreak of drug-resistant Salmonella Heidelberg several years ago, Dr. Hansen told us. Six-hundred and thirty-four people were sickened and federal lawmakers urged that the operations be shut down. Pork tested by Consumer Reports also contained five resistant bacteria strains. Reaction from Congresswoman Louise M. Slaughter (D-NY) to the guidance was swift. It was “an inadequate response to the growing antibiotic resistant crisis caused by overuse of antibiotics on the farm,” according to her office — also pointing out that industry has spent over $17 million to block the Antibiotics for Medical Treatment Act The Trial Lawyer x 39


of 2007 which Rep. Slaughter and the late Sen. Ted Kennedy promoted. “It seems scarcely believable that these precious medications could be fed by the ton to chickens and pigs,” wrote Kennedy in the bill, noting that up to 70 percent of all U.S. antibiotics go to livestock. A University of Iowa study in 2010 found MRSA (Methicillin-resistant Staphylococcus aureus) in 70 percent of hogs on farms studied and 64 percent of workers; resistant infections have even been found on an unopened soft drink can in a car following a poultry truck. Ninety-three percent of doctors worry about the meat industry’s excessive use of antibiotics. A recent investigation by Reuters found the major U.S. poultry firms — Tyson Foods, Pilgrim’s Pride, Perdue Farms, George’s and Koch Foods — are using antibiotics “more pervasively than regulators realize.” KFC-supplier Koch Foods, for example, said “We do not administer antibiotics at growth promotion doses” on its website, but documents from the mills that make its feed to its specifications indicated otherwise, according to Reuters. (“I regret the wording” Mark Kaminsky, Koch’s chief financial officer, later told Reuters). Similarly, Pilgrim’s Pride’s feed mill records show the antibiotics bacitracin and monensin are added “to every ration fed to a flock grown early this year,” according to Reuters. (Tipped off about the documents, Pilgrim’s Pride threatened legal action against Reuters.) A Bright Note Even though two million people a year get antibiotic-resistant bacterial infections in the U.S. and 23,000 die, Dr. Hansen believes the situation is not all bad. The Centers for Disease Control and Prevention, the World Food Organization and even President Obama have ramped up the call for swift action against antibiotic use on farms, he told me. Countries like Denmark and Sweden have demonstrated that farm restriction reduces antibiotic resistance and can serve as a model. There are even signs of a new level of cooperation with some major U.S. chicken producers, Dr. Hansen said. I also spoke to Dr. Susan Boyle-Vavra, who, as lab director for the University of Chicago’s MRSA Research Center, is at the “ground zero” of antibiotic resistance. Even though agricultural use of antibiotics accounts for most resistance, she told us, health care practitioners are doing their part to limit the drugs’ use. At the University of Chicago and other hospitals, “stewardship” programs to protect the effectiveness of key antibiotics are being implemented in which one arm of a health care facility monitors another. Doctors in such stewardship programs are required to supply the reason for prescribing a “protected” antibiotic and the reason for its continued usage. “The protected antibiotics can no longer just be taken off the shelf,” said Dr. Boyle-Vavra and the programs are already showing positive results. Still, Dr. Hansen told me, medical use of antibiotics is not nearly the problem it is on the nation’s farms. “After all, people don’t stay on antibiotics for life,” he says. 40 x The Trial Lawyer


PSYCHIATRIC SIDE EFFECTS What are the side effects of psychiatric treatment? Suicide. 51% of psychiatrists have had one or

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Sexual Abuse. Psychiatrists sexually assault

more patients than any other medical profession.

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Derailed In DC Bomb Trains And Chemical Exposure By Richard Eskow

A CSX freight train derailed in Washington, D.C. in early May. The Washington Post reported that ethanol, which is colorless and highly flammable, was leaking out of one of the overturned cars in the accident’s immediate aftermath. The 14-car derailment also “spilled half the liquid contents of a 15,500-gallon tanker” filled with sodium hydroxide onto the ground beside the Rhode Island Avenue Metro Station. That’s nearly 8,000 gallons of something the Post describes as a “highly caustic chemical.” Sodium hydroxide is also known as “lye.” If that name sounds more familiar, perhaps it’s because killers often use it to dissolve their victims’ bodies on TV crime shows. It has also been used by a host of real-life murderers, including Mexican drug cartel assassins and the 1897 killer known as the “Sausage King of Chicago.” It’s the corrosive of choice because it dissolves flesh and bone more effectively than acid when it’s heated. (It’s also used in household cleaners.) Somewhere between 40 and 50 tons of sodium hydroxide may have spilled onto the ground outside the Metro station. (Its weight per gallon depends on its density).

42 x The Trial Lawyer


EXPOSURE Local officials, including D.C. Assistant Fire Chief John Donnelly, insisted that the fumes posed no threat to public health. But I fell ill after spending a few minutes at the accident site a couple of days later. It’s possible that I reacted to something else, like the airborne materials raised by the cleanup operation itself. But my symptoms matched those of sodium hydroxide exposure. The Centers for Disease Control says that “inhalation of sodium hydroxide is immediately irritating to the respiratory tract. Swelling or spasms of the larynx leading to upper-airway obstruction and asphyxia can occur after high-dose inhalation. Inflammation of the lungs and an accumulation of fluid in the lungs may also occur.”

The CDC notes that “people with asthma or emphysema” — I have mild but chronic asthma — “may be more susceptible to the toxicity of this agent.” I carry an inhaler, which I used, and felt better shortly after leaving the site. But sodium hydroxide poses risks for another portion of the population. “Children may be more vulnerable to corrosive agents than adults because of the relatively smaller diameter of their airways,” writes the CDC. There are two elementary schools and a parochial school in the immediate vicinity of the accident site. THE ACCIDENT SCENE While a number of derailed cars had been removed by the time I visited the scene, several remained. The elevated

platforms where passengers boarded and disembarked from their Metro trains were above the cars. They were downwind from them on the afternoon of my visit. Around the accident site, people went about their daily lives. Mothers pushed infants in their strollers while older children tugged at the hem of their skirts. An old man leaned against the railing of a pedestrian bridge that crossed the railroad tracks, smoking a cigarette and polishing his dark glasses. A teenager in a buttondown shirt hurried by, possibly late to a job at the strip mall a few hundred feet away. Bicyclists, runners, and hikers passed on a footpath that ran alongside the tracks and the derailed cars. Disaster-movie fans would have found in these scenes the clichéd images of normality that precede the typical film’s big catastrophe, with one major difference: The Trial Lawyer x 43


except for one or two bicyclists, all the people around the site were African American. I don’t want to say that made a difference, either in the government’s response to the accident or the media’s coverage of it. But it could have. Movies don’t usually use black neighborhoods for those pre-disaster scenes of everyday life, but life there seems ordinary enough: Apartment buildings. A Popeye’s, a Subway, and a Chinese restaurant. The Greater Mt. Calvary Holy Church. A “warehouse-style clothing retailer.” A private school for children from infancy through the eighth grade. None of these locations were mentioned in the press reports I read, although each was within 1,000 feet of the accident. On the other hand, at least one report mentioned that the accident took place three miles from the White House. THREAT LEVEL To be fair, our society has been consistently indifferent to railway accidents everywhere. A series of other disasters and near-disasters all across the country, many involving the CSX Corporation, has so far failed to rally people to the cause of rail chemical safety. For example: A 60-car CSX train derailed inside a Baltimore tunnel in 2001, starting a chemical fire that kept thousands of workers from their jobs for several days. Fifteen streets were closed down for five days, three Baltimore Orioles games were canceled, and light rail service was suspended for seven weeks. The 2007 derailment of a CSX train carrying hazardous materials in Kentucky sent 100-foot flames shooting into the air, spread heavy black smoke, and burned the surrounding area. Residents were evacuated and emergency work continued for six days. “A dark, thick plume of smoke could be seen for miles after two of 15 derailed cars from a CSX-owned train caught fire,” following a collision outside Baltimore in 2013. The fire from the train’s chemical cargo burned for 10 hours. In 2014, a CSX train crashed in 44 x The Trial Lawyer

Lynchburg, Va., spilling 30,000 gallons of oil and bursting into flames. Also in 2014, a train carrying hazardous materials in 16 of its 121 cars crashed into a car near Bear Mountain, NY. Its cargo included hydrogen peroxide, sodium hydroxide, hydrochloric acid and sulfuric acid. Three CSX trains collided and crashed in Indiana in 2012. Residents were evacuated due to fears that hazardous materials might leak from the wreckage. The fiery crash of a CSX train carrying shale oil in West Virginia in 2015 forced hundreds of local residents to flee their homes. A CSX oil train crashed in West Virginia in 2015. “Fireball fills West Virginia sky after oil train crash,” said a headline on the BBC’s website. Three days later officials had still not reached the site because the wreckage continued to burn. This is not a comprehensive list of CSX accidents. According to the Federal Railroad Administration, CSX trains carrying hazardous materials have derailed nine times since the start of this year alone. And other carriers have had their share of toxic incidents, some even more severe. Two Norfolk Southern trains crashed in South Carolina in 2005, releasing 60 tons of chlorine gas. One person died from the gas. (Nine others died in the crash.) An estimated 554 people were taken to local hospitals for symptoms of chlorine exposure. Seventyfive were admitted for inpatient care and 5,400 people were evacuated from their homes for several days. A Canadian Pacific Railway train derailed in Minot, North Dakota in 2002, spewing a toxic cloud of anhydrous ammonia that killed one person and injured nearly 100 others. The National Transportation Safety Board found that “11 people sustained serious injuries, and 322 people, including the 2 train crew members, sustained minor injuries. Damages exceeded $2 million, and more than $8 million has been spent for environmental remediation.” TRAINS IN VAIN These accidents, especially the ones

involving loss of life, are tragic enough. But each is a warning. Future “bomb train” accidents could result in much more death and destruction than anything we’ve seen so far. It’s strange that we don’t seem to worry very much about this ever-present threat of poison clouds and massive explosions. If these incidents had been caused by terrorists, rather than trains, our entire way of life would have changed. Instead, very little has. Not everyone is indifferent to the danger, of course. In fact, the environmental group 350.org participated in a mass action against “bomb trains” in May in Albany, New York as part of a worldwide wave of actions against fossil fuels. But the nation’s lack of interest in this subject is striking. Railroads are increasingly demanding that large freight trains, which once carried five-person crews, now be operated instead by one lone engineer. They point to computerization and other technological advances, seemingly unaware of the added safety risks posed by fatigue and isolation. CSX is currently spending $170 million to expand the Virginia Avenue Tunnel in the Navy Yard district of Washington. Residents say they’re concerned that the added capacity will increase the volume of dangerous cargo CSX ships through the nation’s capital, increasing the risk of a major catastrophe there. (The Virginia Avenue Tunnel is 2.8 miles from the White House, in case you were wondering.) It will take concerted public action to move the government on this issue. Meanwhile, the nation already seems to have forgotten this recent accident. The sun was struggling to break through the clouds the day I visited the site. The Capitol dome could be seen in the distance, surrounded by faintly visible scaffolding as it undergoes its $60-million-dollar renovation. A few feet from the derailed cars and cleanup crews, crowded Metro trains came and went overhead. And off in the distance, the Capitol building reflected the faint rays of the late afternoon sun, majestic and unmoving as always.


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CORPORATE POWER RUN AMOK?

MONSANTO By KJ McElrath

In March 2015, the International Agency for Research on Cancer (IARC), part of the World Health Organization, published a report on glyphosate — the primary ingredient in Monsanto’s flagship herbicide product, Roundup — classifying the substance as “probably carcinogenic.” The IARC also found “strong” evidence for genotoxicity (meaning that the substance can cause cellular damage and mutations at the DNA level, which can lead to the formation of cancerous tumors). These conclusions were supported by 1000 studies. Then, in May 2016, the UN’s Food and Agriculture Organization and the WHO released their own report. Suddenly, it was determined that glysophate was “unlikely to be genotoxic at anticipated dietary exposures.” Why this sudden switch? And more importantly, what did the executives at Monsanto have to do with it? 46 x The Trial Lawyer


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Two things are becoming patently clear: (1) scientific evidence increasingly shows a direct connection between glyphosate and a range of health issues — particularly the form of cancer known as non-Hodgkin lymphoma, and (2) executives at Monsanto have been aware of this connection for at least thirty years. A BRIEF HISTORY Glysophate was first discovered in 1950 by a chemist working at a Swiss pharmaceutical firm. However, the new substance had no practical pharmacological use. It was two decades later that a chemist at Monsanto, Dr. John Franz, discovered its potential as an herbicide. The company developed and patented its own version of glyphosate under the brand name Roundup®, and the new herbicide went on the market in 1974. Initially, it was primarily used on non-food agricultural products, such as rubber plants and cotton. However, before long, it was approved as a “broadspectrum” herbicide. Today, it is the most widely-used method for controlling pestilential weeds among the world’s farmers as well as gardeners. Chemically, glyphosate is classified as an “organophosphorous compound,” which simply means it is a carbon-based compound containing phosphorus. Such compounds have long been used as insecticides, and have been employed in chemical weapons, such as nerve gas. It can be fatal to humans even at small doses. According to Lewis’ Dictionary of Toxicology, such compounds are among the deadliest poisons ever developed. Roundup is absorbed by plants primarily through the leaves, though small amounts can be absorbed by the root system. Once in the plant’s system, it works by inhibiting the production of an enzyme that is key to the synthesis of important amino acids. Of course, what kills noxious weeds is none too good for food crops. In response, Monsanto has developed a number of geneticallymodified crops, designed to tolerate glysophate — known as “Roundup Ready.” Today, Monsanto and its sycophants in government and industry continue to

insist that glyphosate is virtually harmless to humans, as well as a cost-effective and efficient method of weed control. According to a paper published in the February 2016 issue of Environmental Sciences Europe, nearly 19 billion tons of glysophate has been used on the the world’s crops. More significantly, even though Monsanto’s patent on glysophate expired in 2000, sales of Roundup® still generate approximately $5 billion in revenue for the company. That fact alone speaks volumes. WHO ARE YOU GOING TO BELIEVE? Not surprisingly, Monsanto dismisses the IARC’s report as “erroneous.” A statement on the company’s website says: “Glyphosate has a long history of safe use. In evaluations spanning four decades, the overwhelming conclusion of experts worldwide has been that glyphosate, when used according to label directions, does not present an unreasonable risk of adverse effects to humans, wildlife or the environment.” That statement goes on to attack the IARC report. Monsanto even hired a consulting firm (Intertek Scientific & Regulatory Consultancy) to “review” the agency’s conclusions and the methods employed in reaching them. Admittedly, the IARC’s findings are based primarily on laboratory tests more than they are real-world situations. Additionally, the IARC includes many common substances in its “2A” classification of potential carcinogens, including nitrates (used to cure bacon), hot oil used for frying and wood smoke. But that agency was not the first to draw such conclusions about glysophate. In fact, many in the scientific community have been sounding the alarms for years. Why have regulators been deaf to these alarms? Part of the reason is that the health effects of glyphosate do not affect everyone, nor are they immediately apparent. Like asbestos and other industrial toxins, damage occurs at the cellular level. It can be years, even decades before a victim begins to show symptoms. A peer-reviewed report,

published in the journal Entropy in April 2013, found that residues of glyphosate remaining in produce long after harvest and packing adds to the toxic effects of other toxic substances in the environment. In the study, the authors wrote: “Negative impact on the body is insidious and manifests slowly over time as inflammation damages cellular systems throughout the body.” The study found that glyphosate residues in common foods such as wheat, soy, maize and sugar act to inhibit the action of an particular protein molecule (CYP 450) that plays a role in protecting the body from toxic substances. The authors state: “Consequences are most of the diseases and conditions associated with a Western diet, which include gastrointestinal disorders, obesity, diabetes, heart disease, depression,


autism, infertility, cancer and Alzheimer’s disease.” A year later, another paper was published in the International Journal of Environmental Research and Public Health. This paper was a meta-analysis of nearly three decades of epidemiological research on the connection between the “striking increase” of non-Hodgkin lymphoma (NHL) among agricultural workers and exposure to 80 different chemicals used in pesticides and herbicides — including glysophate. Specifically, the meta-analysis found solid evidence of an association between glyposphate and a specific type of NHL, known as B-cell lymphoma, a form of cancer that attacks immune cells. Meanwhile, researchers in other countries were coming to similar conclusions. Researchers at the Indian Institute of Toxicology Research discovered that even at low concentrations, exposure to glyphosate had the potential to cause cancer in human skin cells. The report was published in the July 2013 issue of ISRN Dermatology. These were only three of dozens of research studies, and they were not among the earliest. In November 2003, French researchers found that glysophate was a cause of “ cell-cycle dysregulation,” a precursor to the development of cancer. That report appeared in Biology of the Cell six months later. In May 2002, the journal Leukemia and Lymphoma published an analysis of two Swedish studies, demonstrating an elevated risk between NHL and pesticides. A decade prior to that, another paper, published in Cancer Research, noted a 50% increase in NHL over the previous 15 years. Researchers discovered that exposure to organophosphates (of which glyphosate is a compound) was a contributing factor to the dramatic rise in cases of NHL. The case against glysophate has been building for years — yet government regulatory agencies have continued to defend it. That is the other part of the equation: corporate power, itself grown into a malignant tumor on the body politic.

MONSANTO STRIKES BACK Not content to simply attack the IARC report, Monsanto was quick to hire its own “biostitutes” to carry out their own research in order to refute evidence of their flagship product’s carcinogenicity. Monsanto continues to insist that “The overwhelming consensus by regulatory bodies and science organizations around the world, like the U.S. EPA, which have found no evidence of carcinogenicity. Further, the 2A classification does not establish a link between glyphosate and an increase in cancer.” Note that the only regulatory body or science organization mentioned in the above statement is the U.S. Environmental Protection Agency. What corporate “person” Monsanto doesn’t mention is that most of the “studies” showing little or no evidence of glysophate’s toxicicity were funded by the herbicide industry itself — and it was these studies that the EPA used in its own evaluation of Roundup®. Should it come as any surprise

that the EPA found “no convincing evidence” of connections between the use of glysophate and human health hazards? The agency posted its own report earlier this year, concluding that glyphosate was “not likely to be carcinogenic to humans.” Yet, on May 2nd, the EPA removed the report from its website, stating that it had been published “inadvertently,” and its review of the product had yet to be completed. In response, Monsanto emailed its own statement to Reuters, declaring that the EPA report had been “clearly labeled and signed as the final report of EPA’s Cancer Assessment Review Committee.” Monsanto is continuing to strike back at glyphosate’s critics. Presently, the company is pressuring the IARC to remove glysphosate from its 2A classification. Earlier this year, Monsanto filed a lawsuit against the State of California’s Office of Environmental Health Hazard Assessment (OEHHA) in order to stop the agency from listing glysophate as a known carcinogen. Monsanto also has its allies in the

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mainstream corporate media, which receives millions of advertising dollars every year from the agribusiness juggernaut. True to the prostituted institution it has become, the corporate media has taken a recent WHO document, cherry-picked the document and put its own spin on it. The report actually says, “Overall, there is some evidence of a positive association between glyphosate exposure and risk of NHL from the case — control studies and the overall meta-analysis.” Then, it goes on to say that “…glyphosate is unlikely to be genotoxic at anticipated dietary exposures … the Meeting concluded that glyphosate is not carcinogenic in rats but could not exclude the possibility that it is carcinogenic in mice at very high doses.” Note that it doesn’t say glysophate isn’t carcinogenic. And yet, that is exactly what mainstream corporate media outlets are trumpeting to the heavens. And of course, the WHO panel conducted no independent

research of its own, but relied on research provided to them. Would the reader care to take a guess at who bought and paid for that “research?” Monsanto has other friends in high places. This month, the European Union’s parliament passed a “nonbinding resolution” that could give glysophate-containing herbicides market approval for another seven years. It is not as much as Monsanto was hoping for, but company representatives are confident that the government body will vote to extend its license — despite the fact that more than two-thirds of Europeans want the substance banned. And even though the resolution passed by a sizable majority, the EU Parliament still notes “concerns about the carcinogenicity and endocrine disruptive properties of the herbicide glyphosate.” Monsanto isn’t terribly worried. It the wake of that resolution, a company spokesperson said, “Due to positive safety assessments … an extension for another fifteen years should technically not pose any problems.” Of course, those “safety assessments” were Medical Records bought and paid and Summary Services for by Monsanto and the herbicide in one easy, affordable package. industry. It is also worth noting that Monsanto has been able to hide the toxicity of its product from regulators’ scrutiny by using different formulas. Regulations require herbicide manufacturers to disclose the MEDICAL RECORDS RETRIEVAL RELIABLE. FAST. EFFICIENT. chemical structures of “active ingredients,” but (888) 963-3739 • www.MedRecExpress.com other chemical 50 x The Trial Lawyer

additives can be declared “proprietary” — and therefore, remain confidential. It is entirely possible that other ingredients in Roundup® and similar herbicides interact with glysophate, exacerbating its effects. They may even have harmful effects of their own. Unfortunately, this is an area that scientists are only now beginning to investigate, and the process is slow and cumbersome. “THE TRUTH WILL OUT” Despite its immense power, corporate “person” Monsanto’s day of reckoning may not be far off. On May 20th, the European Commission, bowing to pressure from member states and environmental activists, delayed a decision that would have extended approval for glysophate for nine more years. Here in the US, three farmers in Nebraska, along with an agronomist, have filed a lawsuit against Monsanto, alleging their cancer was the result of exposure to Roundup®. According to the complaint, “Monsanto championed falsified data and has attacked legitimate studies that revealed Roundup’s dangers. Monsanto led a campaign of misinformation to convince government agencies, farmers and the general population that Roundup is safe. Its continuing denial extends to the date of this Complaint.” Two additional lawsuits on behalf of a farm worker and a landscape designer suffering from cancer have been filed in California. Meanwhile, environmental activists in Scotland are engaging in a “brandalism” campaign, relabeling bottles of Roundup® on store shelves with look-alike labels containing information about the health dangers of the product. As people’s voices become louder and more scientific evidence comes to light in the coming months, it’s a sure bet that (to quote the Bard of Avon) “at length, the truth will out” — and Monsanto will be held accountable for poisoning millions and destroying countless lives in the name of profit.


The EPA’s Ties to Monsanto Could Be Disastrous for the US By Thom Hartmann & The Daily Take Team

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Conservative politicians love to talk about how the Environmental Protection Agency (EPA) only issues “job-killing regulations,” especially if they’re taking campaign contributions from fossil fuel billionaires like the Koch brothers or from agrochemical giants like Monsanto. Republican Chairman of the House Science, Space and Technology Committee Lamar Smith, for example, has spent years trying to stop the EPA from conducting any real research about climate change or passing any real regulations in general. But apparently it’s true that every once in a while, even a blind mouse finds cheese; it seems like Lamar Smith might actually have a legitimate complaint about an EPA report. In the first week of May, Smith wrote a letter to the EPA, demanding to know why a risk report marked “Final Report” about glyphosate was retracted just three days after it was published. The EPA’s Cancer Assessment Review Committee issued the “Final Report” on glyphosate on April 29, 2016, and 13 members of the review committee had signed their name to the report’s findings that glyphosate is “not likely to be carcinogenic to humans.” The findings should raise eyebrows to begin with, because they directly contradict a report from the World Health Organization’s International Agency for Research on Cancer, which found last year that glyphosate is a “probable carcinogen.” But what’s really caused a stir from environmentalists and conservatives alike, and why Lamar Smith has started overseeing the matter, is that the EPA pulled the report after just three days, and claimed that the report was published “inadvertently.” Smith wrote to EPA Administrator Gina McCarthy on May 4, 2016, that “the subsequent backtracking on [this report’s] finality raises questions about the agency’s motivation in providing a

fair assessment of glyphosate.” But Lamar Smith was a few days late to the party condemning the EPA’s research, because the Center for Biological Diversity had already issued a press release condemning the EPA finding as “disappointing, but not terribly surprising [because] industry has been manipulating this research for years.” This shouldn’t come as any surprise though, because using industry research is part of the EPA’s scheme of “cooperative regulation” — something that’s been in place ever since President Ronald Reagan appointed Anne Gorsuch to head the EPA in the early 1980s. During her tenure as head of the EPA, Gorsuch cut the EPA’s budget by 22 percent; she handed many of the duties of the EPA down to states and contractors; and she made a cascade of appointments at lower levels in the agency that led to a fundamental shift in how the EPA regulated industry. You see, in the world of Reaganism, regulators shouldn’t challenge industry. Instead, under “cooperative regulation,” regulators are supposed to work together with industry to establish regulations that protect public safety without hurting corporate profits. “Cooperative regulation” is why regulators in the United States need to prove that a product is unsafe before a corporation will pull that product from store shelves, because corporate profits are at least as valuable as public safety. It’s why over 750 products containing glyphosate are still for sale in the United States nearly a year after the World Health Organization found that glyphosate is “probably carcinogenic.” “Cooperative regulation” is also why our regulatory agencies take research from privately funded think-tanks and from industry lobbying groups. And that’s exactly what seems to be at the core of what’s going on with this retracted glyphosate report. Dozens of papers cited in the retracted EPA report on glyphosate are “unpublished regulatory studies,” meaning that they weren’t peer-reviewed

and it’s unclear how the data was collected or tested. As Nathan Donley with the Center for Biological Diversity wrote in a press release, “The EPA’s analysis relied heavily on industry-funded studies that have not undergone public scrutiny, while the WHO used publicly available research for its analysis.” And this is a huge problem, because the EPA was established by the Nixon administration “because arresting environmental deterioration is of great importance to the quality of life in our country and the world.” When Nixon authorized the creation of the EPA, there was bipartisan consensus that this country needs a single, streamlined regulatory agency dedicated to protecting our air and water. Now, we’re approaching a bipartisan consensus that the EPA is broken. And the fact is, it’s been broken for more than 30 years, ever since the Reagan administration turned it into a partner of industry, rather than a regulator. It’s time to get federal regulators out of bed from the industries that they’re supposed to be overseeing. It’s time for the EPA and other regulatory agencies to adopt the precautionary principle that says that techniques like fracking and products like glyphosate have to be proven safe before consumers are exposed to them. We need to strengthen the EPA and other regulatory agencies so that they can conduct independent research about environmental threats and public health concerns, and so that they don’t need to solicit biased, industry-funded research from multinational corporations. And it’s time to end the revolving door between the private sector and government agencies like the EPA, the Federal Communications Commission, the Food and Drug Administration and the Securities and Exchange Commission, because the American people deserve government regulators that put public safety ahead of corporate profits.

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Time To Take A By Farron Cousins

April 2016 set a record for being the hottest April on record since temperatures were first recorded. Unfortunately, this was not a fluke; this has become the “new normal.� April was the 12th consecutive month that broke monthly high-temperature records. In other words, the last twelve months have been the hottest months ever recorded for each respective month. As a country, the United States has been very slow to react to climate change. Part of the problem is that our politics has been corrupted by the influence of fossil fuel money. The other part is that the constant stream of misinformation has led to an imbalance in the acceptance of science, and the public has taken a long time to come around to the idea that we need to act. But today the public does agree that it is time to act, and a majority of Americans no longer deny the existence of man-made climate change. The main issue is that the deniers are calling the shots, so action remains either completely absent or painfully weak.

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Toward


New Approach

Climate Change To make matters a little more confusing, while most Americans agree that climate action is necessary, polls show us that they believe it is very low on the country’s list of priorities, with things like global terrorism, the economy, and income inequality consistently scoring higher on the priority list. The irony is that most of the issues that rank higher than climate change can all be directly related to the state of the environment. The Democratic candidates for that have run for their party’s presidential nomination have all been on the same page in terms of accepting the scientific consensus that the planet is warming up and that human activity is the root cause. But the Republican candidates, a pool that has been whittled down to include only Donald Trump who is now the presumptive nominee, have consistently declared that climate change is a hoax and that we should not be concerned about this issue.

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Not only could Trump prove to be a climate disaster because of his refusal to accept science, but his complete lack of political experience means that he is completely reliant on his advisors to develop his policy for him. This is troubling for the United States because Donald Trump has already appointed a climate change denier, Republican Rep. Kevin Cramer from North Dakota, as his top energy advisor. Trump has also suggested in interviews that he would completely do away with the Environmental Protection Agency (but we shouldn’t worry because the “environment will be just fine.”) It is important to remember that acceptance of climate science is not necessarily limited to one political party. Recent polls show that majorities of voters within both the Democratic and Republican parties (as well as Independent voters) accept that climate change is real and that human activity is a contributing factor. So it is significantly ironic that almost every Republican that threw his or her hat into the ring at some point denied the existence of climate change, while every single Democratic candidate believed in science. So if the voters want action, and at least one major political party wants action, why can’t we get anything done? The answer to that question is that nothing gets done because we’re having the wrong debate about climate change. Science is difficult to comprehend at times, and even believers will vote against the climate if they believe it will personally hinder their livelihood at that very moment. But there is a simple solution: We have to reframe the debate. In order to inspire action, perhaps it’s time that the environmental movement changed the way it discusses the issue. Rather than speaking mostly in terms of environmental destruction, we should be pointing out the economics of environmental action and the benefit that action can bring to 58 x The Trial Lawyer

the overall economy. And vice versa — plenty of economic actions by the government have a direct, often negative, impact on the environment and the health of American citizens. This approach makes more sense when you take into consideration the tactics used by the fossil fuel industry. Rather than outright denying that a problem exists, many industry insiders and politicians have claimed that climate action costs too much money, or that it would destroy job markets, or that the expense isn’t worth the effort. They are using economics to make their point, but the dollar signs actually line up more in favor with environmentalists than with the industry. Plenty of studies have been published that prove that the cost of doing nothing on climate change is far greater than the cost of action. Last year, Citibank released a report showing that switching to a low-carbon economy would save $2 trillion. But these reports discuss addressing the causes of climate change on the whole and don’t get into the microeconomics of protecting the environment in general, and those are the real numbers that we need to be focusing on, because those are the numbers that hit closest to home for American citizens. When we dig down into the micro level, we can begin to see how spending on the environment — and even enforcement of existing health and safety standards — will begin to show benefits to local communities. For example, a NESCAUM study from 2011 showed that increasing the fuel economy of vehicles in the northeast United States could create up to 50,000 jobs. That same year, the United Autoworkers Union released a study showing that 155,000 jobs had already been created nationwide as a result of simply raising fuel economy standards. Last year, a report from the Analysis Group determined that a nine-state project in the Northeast to reduce the amount of carbon from power plants resulted in an economic benefit of $1.3 billion. Fuel economy standards in California will result in drivers saving an average of $300 by the year 2020. Consumers in Iowa are expected to see their overall utility prices drop by about $10 million due to increased wind energy production, in addition to the state receiving $360 million in property tax generation from these wind farms. The Pacific Coast Action Plan on Climate and Energy — a program designed to reduce emissions and tighten renewable energy standards — is expected to bring in $1 trillion to the


economies of California, Washington, and Oregon in the next 30 years, money that will be used to rebuild the infrastructure in those states. For every $1 that states spend on energy efficiency programs, consumers see a direct savings of close to $5. The most important thing to remember — and the rebuttal to a classical talking point of anti-environmentalists — is that enforcing environmental standards does not kill jobs, and most experts agree that enforcement either creates as many or more jobs as would be lost. The bottom line is that every time the government spends money, it creates economic benefits. Those benefits are in the creation of new jobs, the contracting of existing companies, or the direct payment of money in exchange for services. This is Economics 101, and it is an argument that the environmental movement needs to adopt. But what about the other side? What happens when the government doesn’t have the money to spend? The sad reality is that the environment is the first thing to get the shaft when budget cuts take place, and in turn, this has a direct negative effect on the health and well-being of American citizens. The best example is the water crisis in Flint, Michigan. While the lead pipes may have poisoned the water itself, bad policies set everything in motion. When then-President Bill Clinton signed the North American Free Trade Agreement in 1995, things began going downhill quickly in the state of Michigan. Manufacturing jobs began to disappear, and roughly 60,000 manufacturing firms closed their doors for good in the 20 years that followed the passage of that trade deal, and close to a quarter of a million workers lost their jobs. The result was that the state of Michigan began losing tax revenues, forcing them to reduce spending on basic services like clean water. This eventually led to the decision to save a few thousand dollars a year by switching the city of Flint’s water supply, and the rest is history. Unfortunately, Flint is not unique. Close to 2,000 water systems in the United States have tested positive for lead in concentrations that are dangerous to the human body. In nearly all of these areas, budget cuts have forced governments to reduce spending on infrastructure repair, leaving millions of Americans to get their water from decades-old lead pipes that are rusting and crumbling. Again, it all goes back to basic economics: When the government has less income, it has less money to spend on basic services. And when the money is cut from environmental protection, the health of the public suffers, as we’ve seen in Flint. A lack of funds is also threatening the Environmental Protection Agency as a whole. According to a recent report by The New York Times, the role that the agency plays in the U.S. has increased during the Obama administration while its budget has been cut nearly every year for the last six years: The agency’s spending under Mr. Obama has been cut between 10 and 20 percent below the budgets of the previous three administrations, when adjusted for inflation. The agency’s

budget has averaged about $8.8 billion annually under Mr. Obama, compared with (in today’s dollars) $9.7 billion under George W. Bush, $10.6 billion under Bill Clinton and $10.4 billion under George Bush. The agency’s 15,408 employees are its fewest since 1989. These constant budget cuts will destroy the agency’s ability to prevent further crises — like the one in Flint — and will inhibit their abilities to properly regulate emissions, test rivers and streams for pollutants, and evaluate the safety of fossil fuel extraction operations. By now the greatest irony should be clear: Protecting the environment is a great way to boost the economy and federal revenue, but revenue reductions are forcing the government to cut back on environmental protection. And that’s why the terms of the debate need to shift. If we can redirect our message from one of global catastrophe to one of economic growth, we can gain more supporters to our cause. The best way to get the public to support an idea is by explaining the direct connection it has to them personally, and nothing is more personal than a person’s financial situation. Arguments about job growth, economic security, and increased income need to find their way into discussions about melting ice caps and warming oceans. Without a broad, yet personal, appeal, the issue will continue to rank low on the American to-do list, and we’re already running out of time.

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HAMMERED IN

OVARIAN CANCER CASES By Myron Levin, FairWarning.org

Johnson & Johnson suffered a second straight legal defeat in defense of its signature talc products when it was ordered to pay $55 million in damages to a woman who blamed her ovarian cancer on the use of Johnson’s Baby Powder for feminine hygiene. After about 10 hours of deliberations, a state court jury in St. Louis, Missouri, awarded $5 million in compensatory damages and $50 million in punitive damages to Gloria Ristesund, 62, of Sioux Falls, South Dakota. She was diagnosed with Stage I ovarian cancer in 2011, and had a hysterectomy, including removal of her uterus, ovaries and fallopian tubes. J&J is facing more than 1,200 similar claims on behalf of ovarian cancer victims who say that genital use of its talc powders — baby powder and Shower To Shower — was the cause or a contributing cause of the disease. As reported by FairWarning, in February the health care products giant was slammed with a $72 million loss in a case brought by the family of Jacqueline Fox, a Birmingham, Alabama woman who died of ovarian cancer last year at the age of 62. But the latest defeat is more significant because the facts seemed much more favorable to the company. Under the procedure being used to handle hundreds of pending claims in St. Louis, plaintiffs got to select the first lawsuit to be tried, the Fox case, and the defense chose the next one, Ristesund. According to evidence in the case, Ristesund had experienced endometriosis and was overweight — both risk factors for ovarian cancer. Moreover, Ristesund has had no recurrence of her cancer since undergoing surgery in 2011. Jurors in cancer cases sometimes show more sympathy for victims who are terminally ill or deceased. The jury of nine women and three men found J&J and its subsidiary, Johnson & Johnson Consumer Cos., Inc., guilty of negligence and failure to warn about the risks of genital use of talc. But the jury rejected an additional claim that the companies had conspired to provide misleading scientific and medical information. As also occurred in the Fox case, J&J’s co-defendant and talc supplier, Imerys Talc America, Inc., was absolved of liability.

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Ristesund declined to be interviewed. But Ted Meadows, one of her lawyers, said she is “very happy” about the verdict, “in particular, since she brought this lawsuit … to let the public know of the risks, since Johnson & Johnson seems unwilling to do so.’’ In a prepared statement, J&J spokeswoman Carol Goodrich said the company will appeal the verdict, which “goes against 30 years of studies by medical experts around the world that continue to support the safety of cosmetic talc. We understand that women and families affected by ovarian cancer are searching for answers, and we deeply sympathize with all who have been affected by this devastating disease with no known cause.”

awful thing for her to go through,” but that “talc is not the reason. …The science supports the safety of talc.’’ Suspicions about talc and ovarian cancer go back decades. In 1971, British researchers analyzed 13 ovarian tumors under a microscope and found talc particles “deeply embedded’’ in 10. In 1982, the journal Cancer published the first study showing a statistical link between genital talc use and ovarian cancer. The lead author of that study, Dr. Daniel Cramer, a gynecologist and Harvard Medical School professor, recently co-authored a new study that found a 33 percent higher rate of ovarian cancer among women who used talc for feminine hygiene. In all, about 20 epidemiological

In all, about 20 epidemiological studies have found increased rates of ovarian cancer for women who reported using talc for hygiene purposes. In a written statement, Imerys spokeswoman Stephanie Fraser said the company’s confidence in the safety of its talc “is supported by the consensus view of qualified scientific experts and regulatory agencies. … Our hearts go out to the women and their families affected by ovarian cancer. We hope the scientific community will continue to focus its efforts and resources on finding the true causes of ovarian cancer to help lead us to a cure for this tragic disease.” In closing arguments, Ristesund lawyer R. Allen Smith, Jr. said the case hinged on whether J&J had a duty to warn, and whether genital use of talc caused or contributed to Ristesund’s cancer. “We are not talking about a product that causes a rash,” Smith said. The defendants “have shown complete disregard for the safety of women, and my client.’’ But J&J lawyer Christy D. Jones told the panel that “talc is safe” and “that, ladies and gentlemen, is what the current science is. … You shouldn’t be warning of something that’s not true.’’ In her closing statement, Imerys attorney Nancy M. Erfle said Ristesund’s cancer was “an 62 x The Trial Lawyer

studies have found increased rates of ovarian cancer for women who reported using talc for hygiene purposes. But other studies have found no association, and J&J has argued that a causal link between talc and ovarian cancer is not biologically plausible. In 2016, an estimated 22,280 women will be diagnosed with ovarian cancer in the U.S., according to the American Cancer Society, and about 14,240 will die. The disease strikes about one woman in 70. Studies showing a higher rate of ovarian cancer with talc use have typically found an increased risk of about 35 percent — which would put the odds of getting the disease at roughly one in 50. Prior to the recent litigation, suspicions about the risks of talc were almost unknown outside of the scientific community. The iconic Johnson’s Baby Powder, introduced by J&J in 1894 and used for decades to powder babies’ bottoms, has long been regarded as quintessentially wholesome and benign. Along with baby powder, the litigation has focused on Shower to Shower, a another talc powder used for feminine hygiene, and marketed to

women with ads that said: “A sprinkle a day keeps odor away. … Your body perspires in more places than just under your arms.” In October 2012, for reasons neither company would discuss, J&J sold North American marketing rights for Shower to Shower to Valeant Pharmaceuticals. Most of the lawsuits are pending in St. Louis and in J&J’s home state of New Jersey. As reported by FairWarning, the wave of claims was triggered by a mystifying verdict in October 2013 in South Dakota. In that pathbreaking case, a federal court jury found J&J liable for failure to warn but awarded zero damages to ovarian cancer victim Deane Berg. The jury foreperson told FairWarning that the panel wasn’t convinced that talc use caused Berg’s cancer, but believed J&J should have put “something on the product to alert the consumers of the possible injury and the possible risk.” The case brought a slow-building controversy to a head. Plaintiff lawyers, heartened by a liability finding in conservative South Dakota, began churning out the current wave of ovarian cancer claims. Talc, the softest of minerals, has a multitude of industrial and consumer product uses, including in the manufacture of paints, paper, rubber, roofing and ceramic materials, and even as a food additive, a filler in capsules and pills and in cosmetics. At various times over the years, health advocates have called for warnings against using talc products for genital hygiene. “Balanced against what are primarily aesthetic reasons for using talc in genital hygiene, the risk benefit decision is not complex,” said one 1999 study. “Appropriate warnings should be provided to women about the potential risks of regular use of talc in the genital area.” But J&J and other marketers of talc powders have refused on grounds there is no proof of a health risk. FairWarning (www.fairwarning.org) is a nonprofit news organization based in Pasadena, California, that focuses on public health, safety and environmental issues.


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The Sociological Imagination, Racism, and Donald Trump By Chauncey DeVega

The sociological imagination is the connection between personal experience and the broader social and political world. This concept is one of the most powerful frameworks for understanding the human experience and how we locate it within a given society and/or cultural milieu. As such, the sociological imagination has been invaluable in my efforts to make sense of politics in the Age of Obama, the rise of “Trumpmania,” and the radical rightward move of the Republican Party and movement toward conservatism. Because such interactions are both disturbing and fascinating, I routinely take “human safaris” to overt white supremacist websites and the comment sections of Fox News and similar rightwing entertainment disinformation media. I also respond to conservatives via social media who are made enraged, hurt, and angry by the topics and themes explored by my essays and other work. While the right-wing media exists in a state of epistemic closure — where the logic, reasoning, and rationales of the troglodytes stuck within are bizarre and exist outside of empirical reality — it remains essential that we pull back the veil and look inside: The machinations that are produced therein are a threat to the Common Good. One of the repeated narratives which I have encountered from Donald Trump supporters online (and in person) is that they are not “racists,” are the “real victims” of “political correctness,” and 64 x The Trial Lawyer

how there is no “evidence” or “proof ” that the ascendance of Donald Trump’s pro-fascist, right-wing producerist, Herrenvolk movement is driven by racial animus or bigotry. Much of these responses — beyond trolling, deflection, and evasion — are standard right-wing talking points for the post-civil rights era and the Age of Obama. An unwarranted sense of victimhood as well as grievance mongering is a perpetual state of affairs for conservatives, from the civil rights era to the present. Other Trump supporters and Republicans are befuddled by the claim that their party’s present state and its presumed nominee are the result of decades of the “Southern Strategy” and the politics of white racial resentment. Some of them are ignorant of their own political party’s history and present. Others lack critical thinking skills, and a good many are propagandized by the right-wing disinformation machine. Systems-level thinking is a skill conservatives find very challenging, and the majority are simply exhibiting the binary thinking, fear-dominated heuristics and cognition, as well as

authoritarian tendencies that are common to their brain structures and political personalities. Ultimately, in my conversations with Donald Trump supporters (and conservatives too), I often arrive where the journey began. Racism is not an opinion. It is a fact. The power of the color line and how it influences almost every dimension of American (and global) social and political life is not an “unknown unknown.” The fact that historically, white supremacy and white privilege overdetermine the positive life outcomes and life chances of white folks relative to black and brown people is one of the most consistent and repeated findings in all of the social sciences. New work by Jason McDaniel and Sean McElwee examines the relationship between white animus and support for Donald Trump. Their findings are one more data point in a long and welldocumented story about the relationship between racism and conservatism. Writing at Salon.com, they have examined the preliminary findings of the 2016 American National Election Studies. McDaniel and McElwee came to the following conclusion:


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Research suggests that right-wing views are strongly correlated with negative feelings towards groups considered as “others.” Trump clearly draws on these attitudes: his supporters have negative feelings towards most of the groups we examined, with the exception of the police and whites. We also find that white identity leads Trump supporters to have more negative feelings about Latinos and Muslims, and this effect isn’t true among whites who support other Republican candidates… As Marc Hetherington and Drew Engelhardt have shown, the parties have increasingly polarized across racial lines (with more racially conservative whites joining the Republicans, and racially sympathetic whites joining in the Democrats). This is due to an intentional strategy on the right to manipulate racial animus for political gains. McDaniel and McElwee also show that: The Trump phenomenon may be the last gasp of the old world order, in which white men ruled and anyone who didn’t conform would be ostracized. Trump supporters appear to resemble the supporters of Wallace and Nixon, with their support for the police and whites, and their disdain for those who don’t conform to the “Silent Majority.” The work above suggests that Trump supporters might be motivated less by positive feelings about Trump and more by negative feelings about groups they dislike that are motivated by the perception of threats to their identity as white people in America. If Trump stands for anything, it is the restoration of his supporters threatened racial identity by standing against gays, lesbians and other groups his supporters dislike. Racism, nativism, authoritarianism, white racial identity, and grievance mongering are central to support for Donald Trump: The results are pretty clear: compared to supporters of other Republican candidates in the primary, Trump supporters really dislike many groups 66 x The Trial Lawyer

in America. For these voters, Trump’s blend of casual racism and muscular nativism is the core of his appeal. Again. Racism is not an opinion. As they have done with other research about the relationship between white racial animus, overt racism, Donald Trump, and conservatism, the Trump supporters I shared this work with online were incredulous. Of course, they believe that there is a “conspiracy” by “liberal professors” to “make people like them look bad.” But this defensiveness and rage also show both the progress that has been made along the color line, and how much work remains to be done. Racism and white supremacy are now civic sins to be publicly shamed by polite society. This is a type of forward movement. Of course, the election of Barack Obama — twice — was monumental, even while he also actively avoided creating specific and targeted programs to help ameliorate the damage caused to African Americans by institutional as well as interpersonal white racism. Many white Americans actually believe that they are victims of “racism.” This fallacy is a sign of a profound disconnect between the world as it is compared to the one conjured up by the White Gaze. It also signals a feeling that white privilege and white majority group status are imperiled because of the “browning of America.” First: In the United States the categories of “whiteness” and who is considered “white” have always expanded to include new members. There is no reason to believe that such a centuries-long process will somehow suddenly stop. Second, even allowing for exaggerated readings of America’s changing demographics, “white” people will still be the single largest group, as well as control a vast and overwhelming amount of the country’s wealth, income, and other resources for the foreseeable future. Forward-thinking and progressiveminded people also have much work to do in educating white Americans (and some others) that racism is not just the extreme of Neo Nazis, Kluxers, or other white bigots. Rather, it is a system of

social, economic, and political practices that white folks benefit from — whether they intend to or not. Racism need not be conscious and intentional to cause great harm. In fact, some of the most dangerous types of racist and white supremacist practices are committed on a subconscious level and in a quotidian way because said behavior(s) is just “normal” or a “habit”… one that remains unchallenged or critically reflected upon. Support for Donald Trump’s 2016 Republican presidential campaign is not a buffet. His racism, nativism, and bigotry are not coincidental to his supposed platform of rebuilding the United States’ infrastructure or economic protectionism: White identity politics are central to his political strategy and appeal. The mainstream corporate news media dances around and evades speaking plainly and truthfully about this fact. Instead, Trump’s people are given euphemisms such as “angry” or “white working class” voters who feel “abandoned” by “elites” and “the system.” This may very well be true. These voters are also part of a racist, nativist, and bigoted political movement that even by the horribly low bar set by the Republican Party on these matters is quite noxious and dangerous to the health of the American body politic. It’s important to use appropriate and accurate language to describe Donald Trump’s supporters and the political cult leader himself. These people are Trump-thug-licans. Donald Trump has bathed, in a manner akin to that of Elizabeth Bathory, in the metaphorical blood of racism, white supremacy, nativism, and bigotry to become the GOP’s presumptive 2016 presidential nominee. As anti-racism activist and humanitarian freedom fighter Jane Elliot has said, “Racism is not pretty or nice. It is ugly.” Like her, I do not talk gently or in a way that is overly concerned with white folks’ feelings — be they Trump supporters or not — about the reality of the color line in America and the world. “Trumpmania” is a racist, white supremacist movement. The so-called “liberal” news media should stop pretending otherwise.


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By Martha Rosenberg

Big Pharma loves

MISGUIDED PATIENTS IT NEVER FAILS. When

reporters observe that Paxil causes birth defects, “GERD” meds are linked to bone thinning, suicides are rising in exact proportion to SSRI use or narcotics are addictive, they are inundated with patients screaming “how dare you suggest I am not sick? You’re not taking my drugs!” In their paranoid attacks and personalizing of the issue, they sound a lot like gun advocates whose response to background check laws for guns is “you’re not taking my gun.” Patients who think they are under attack are abetted by thousands of “professional patients” who Pharma jets to Washington and parades in front of state agencies to showcase the “need” for expensive new drugs. They raise health care costs especially in government programs. Despite recent exposés from the Los Angeles Times and the Organic Consumers Association about how Pharma sought wider indications for opioids despite their addiction, hooking millions, pushback is coming from patients who actually believe the problem is “stigma” and too tight laws around opioids. Right. Maybe instead of 46 dying from opioids a day we can get to 100. In users’ defense of opioids, they sound a lot like two Pharma front groups, the National Alliance on Mental Illness (NAMI) and Active Minds which literally “sell” mental illness by yelling “stigma,” “barriers to treatment” and “underserved” to get more people on drugs. 68 x The Trial Lawyer

While many know NAMI gets the majority of its donations from drug makers, according to Congressional investigators, Active Minds, located on at least 100 campuses is also Pharmafunded. After the apparent suicides of two Northwestern University students in Evanston, Illinois in 2012, both groups descended upon the campus yelling “barriers to treatment” even though suicide in young adults is a major risk of the SSRIs they push. Pharma has also invaded the addiction industry. No one doubts that growing up is hard and young people can be unhappy. No one doubts that chronic pain is terrible. But only since aggressive Pharma marketing do unhappy 20-year-olds conclude that they have SSRI deficiencies and people with chronic pain conclude they have opioid deficiencies. How did we ever cope before Pharma got a fourth of the population on antidepressants and loosened opioid guidelines so they are used for almost all types of pain? If the SSRIs and opioids simply did not work, it would just be a case of Pharma exploiting unhappiness and raising our health care costs. But both drug classes when used long-term actually make people worse in many cases. Certainly “Prozac poop out” is well known. Less well known is a phenomenon known as “opioid-induced hyperalgesia” or OIH in which opioid use increases pain. It is not much discussed by Pharma.


REPUBLICAN OBSTRUCTION IS DECIMATING OUR JUDICIAL SYSTEM: An Interview With Howard Nations By Farron Cousins

The sudden death of Supreme Court Justice Antonin Scalia in February sent shockwaves through the United States, especially through the legal community. Vacancies on the Supreme Court are a rare occurrence and they are a huge opportunity for sitting presidents to create a legacy that will last long after their administration has left Washington, D.C. But Scalia’s passing and the subsequent fight between the Republican-controlled Senate and President Obama has highlighted an even greater danger to our judiciary: Dozens of seats on benches all over the country remain empty because Republicans are refusing to do their jobs. One branch of government is shutting down another one, leaving the United States limping along with a half-functioning democracy. There is much more at stake right now than just an empty seat on the nation’s highest court, and I recently had the opportunity 70 x The Trial Lawyer


to discuss these court vacancies, and the obstruction by Republicans that is keeping these seats empty, with Howard Nations, past president of The National Trial Lawyers Association and a member of The Trial Lawyer Hall of Fame: Farron Cousins:

Howard Nations:

FC:

Republicans in the Senate are still refusing to give Judge Merrick Garland a hearing, but the problems with Republican obstruction stretch far beyond the Supreme Court. In fact, the GOP has made it their goal to block as many court appointments, at all levels, as possible. I have Howard Nations with me now to explain how this affects our justice system. Howard, it has been months since the death of Antonin Scalia, Merrick Garland still can’t even get a hearing. That is really just the prime example of how bad Republican controlled government can be, because it’s not just Merrick Garland, we have vacancies all across the court system in the United States, and it all comes back to that one specific thing: Republicanrun government. This is by design, they don’t want things to work. It just creates chaos. Tell us exactly, how do you see this? What’s happening with the government today? This may be the year that government dysfunction catches up with the Republicans, because the current mantra for voters seems to be “don’t reelect anyone.” The new gold standard for anyone running for political office is to prove that you have no political experience. If you want to see dysfunction at its very worst, look at the federal judiciary, both in the criminal and civil administration of justice. It is severely hampered by the Republican leadership in the United States Senate, primarily by two United States Senators, Senator Charles Grassley, the Chairman of the Senate Judiciary Committee, who refuses to clear nominees out of his committee, and the Senate Majority Leader, Mitch McConnell, who refuses to allow floor votes on judicial nominees.

This is a good example of why Donald Trump is going to be their nominee, but they don’t necessarily care too much about that. They can lose the White House. The real power comes from controlling that

Senate, because as terrified as they are of losing the judiciary, as long as they hold on to that Senate, they can do this. They can go in there and act like children and say, “No, we’re not going to give you a hearing. We’re going to take our ball and go home,” because dysfunction is their brand at this point. That’s all they know how to do because they have no original ideas. It’s, “We’re going to block your ideas because we can’t think of anything better.” That’s today’s Republican Party. HN:

You have to understand that this judicial dysfunction goes way beyond the Supreme Court of the United States. This is about far more than Judge Merrick Garland. We have dysfunction at the Supreme Court of the United States, where they handle 100 cases a year. We have dysfunction among the U. S. Circuit Courts where they handle appeals, often with conflicting opinions among the circuits. We have dysfunction in the District Courts, where they handle 350,000 cases a year. Dysfunction at the Supreme Court of the United States comes in the form of a 4-4 tie on controversial issues, which you have since Scalia’s death. The effect of a tie at SCOTUS is to uphold the lower court opinion, whether it was made by the Circuit Court or by the trial level District Court. This results in a shift of power to the lower courts and abandonment of the duty of the Supreme Court to serve as final arbiter and provide uniformity in results on critical Constitutional interpretations. For the first time in US history, we may have two complete terms of the United States Supreme Court with a 4-4 tie, leaving many vital issues unresolved by the highest Court in the land. The role of the Supreme Court, as a final arbiter on major issues, is often being vacated and sent to the lower courts, where splits among the Circuit Courts remain unresolved.

FC:

I think the real irony about this is the fact that these 4-4 rulings that are coming out are against the Republicans. They’re trying to prevent Obama from being able to appoint another Justice, and it’s a lose-lose situation for them. Either they confirm him and he sides most of the time, they assume, with the liberal majority or they don’t confirm him and it kills them in their re-elections this year. With these lower courts, that’s really the basis of American justice. That’s where almost all of the cases are heard, very few make it to the Supreme Court. What happens when we have all of these vacancies? There are dozens, we’re teetering towards 100 vacancies across the country. What happens?

HN:

One of the most important roles of the United States Supreme Court is to resolve conflicting opinions between the United States Circuit Courts.


SCOTUS establishes uniformity in the constitutional law of the United States of America. Right now, as is always true, you have very large disparities between rulings of the 5th Circuit, for example, which is the most conservative federal appellate court in America, and other more progressive Courts such as the 2nd Circuit in New York or the 9th Circuit in California. The result of the failure of SCOTUS to resolve disputes among circuits is, amazingly, that the constitutional rights of American citizens’ to due process, or property rights, or free speech rights, or social issue such as abortion rights, may differ significantly among American citizens based upon which federal circuit they live in. You cannot convince me that this reflects the intent of the founding fathers. FC:

We have a different, essentially, justice system depending on where you live in this country. Up in the northeast, it’s different than it is down where you are in Texas, which is different from what it is up in the Pacific Northwest. You specifically talked about the justice system in Texas, how do these vacancies, affect what’s happening down there?

HN:

Let me give you an example of that. In the Eastern District of Texas, there are three and a half million residents. There are supposed to be eight District Judges, but there are only five due to three unfilled court vacancies. The absence of three judges makes a huge difference in the administration of justice in the state. The reality is that the case load in the Eastern District has doubled since 2009, and you’ve lost three judges out of eight. Commenting on the essential problem raised by this judicial shortage, former Eastern District Chief Judge Leonard Davis was quoted in TakePart as stating: “You definitely see a decrease in the quality of justice that the courts are able to deliver.” This decrease in justice applies to both businesses and individuals. The Federal District Court for the Eastern District of Texas in Sherman, for example, sits empty as one of the three judicial vacancies. Both businesses and individuals often have to wait for visiting judges to find time to travel 350 miles from Beaumont to Sherman to deliver justice. Sherman is a technology center with major patent and intellectual property court battles, but there’s no judge. Businesses have to wait for years to resolve major economic issues. There’s a study going on now that shows that this has a major impact on economic growth in an area.

Consider also the effect on the shortage of judges on accused individuals caught in the criminal justice system. 98% of federal criminal defendants plead guilty. Sentencing is supposed to occur within 60 to 90 days of the pleas. In the Eastern District of

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Texas, criminal defendants may be incarcerated nine months to two years in county jails while awaiting sentences. They’re sitting in a small, often overcrowded county or local jail for up to two years before they can get a federal judge who has 30 minutes to hold a sentencing hearing for them. As a general rule, time incarcerated in local jails is much harder time than that served in a federal prison. An additional problem is that if a criminal defendant pleads guilty and is sentenced to five years in a federal prison, he may spend up to two years in the county jail waiting for a sentencing hearing from a federal judge. The five year federal sentence begins to run at the time of sentencing. Depending on the judge, the defendant may get credit for time served in the local jail awaiting sentencing. If not, the defendant serves up to two years added to a five year sentence due to the shortage of judges. The Constitution provides for a speedy trial but there is no provision for a speedy sentencing hearing. This process is a burden on the local jails as well as a denial of due process to the individuals. That’s an example of what’s happening to criminal defendants. Parties in individual civil cases are last in line for trials in most federal courts since the criminally accused have a constitutional right to a speedy trial and business and commercial litigants are given priority over individual disputes. FC:

You know what’s interesting about all of this is that, again, this is traced directly back to Republican dysfunction. But back in 2009, for The Trial Lawyer magazine, we covered the fact that Obama did inherit a judicial emergency. We had 40 to 50 someodd openings at the time, and that’s because George W. Bush was appointing some of the worst people imaginable, but they all got hearings. They got their fair hearing, they were voted down. Those vacancies grew as Obama took office. Some of the things that we saw through our work there was the fact that they were bringing judges out of retirement to hear accident cases so the accident judges could hear criminal cases. Everybody basically had to step up, and it’s a catastrophe. That’s still happening today. We’re going on eight years now, and it’s because the Republicans in Washington can’t stand the thought of losing what really is one of the most powerful branches of government, and the people in this country do not take the judiciary seriously enough. They don’t understand the kind of impact that the judiciary has on their lives every day, partly because they are misled by the Senatorial rhetoric about the judicial system.

HN:

Yes. Senator Mitch McConnell blatantly lies about there being no confirmations during the last year of


a presidential term. The courts that we are describing are sitting empty because the Senate refuses to do its job of advising and consenting on judicial nominees. In the last 16 months the Senate has only confirmed 17 federal judges for President Obama. In the last year of George H.W. Bush’s presidency, the Senate confirmed 82 judges, a comparative ratio of five to one. It is a disservice to citizens awaiting justice in our courts to say, as McConnell does: “This is just the way we do. You don’t confirm judges in an election year.” The direct disastrous results of the Senate’s refusal to confirm trial judges is judicial emergencies around the country in the federal judiciary. Judicial Emergency is an official designation that indicates that the per-judge caseload is so high that it endangers access to justice. That’s an official designation of the judicial system. In January 2014 there were 12 judicial emergencies in the country. As of today, there are 32. In other words, there are 32 federal district courts whose case load is so large as to endanger the access to justice of litigants and the timely delivery of justice by the federal courts. This is compounded by the Constitutional requirement of a speedy trial in criminal cases. Businesses and individuals are waiting for years to get their day in court, because Republican Senators Grassley and McConnell refuse to hold hearings or floor votes, and clear the way for qualified judges to go to work to clear the judicial emergencies and reestablish due process of law as the standard. It is particularly pathetic when we consider that this is occurring because the Republicans wish to deny the President of the United States his Constitutional right to appoint the federal judiciary. FC:

It’s because there’s only one part of the Constitution that the Republicans actually care about, and that’s the 2nd Amendment. The American public doesn’t understand, the Republicans are restricting our access to what we are granted under the Constitution. This is a direct violation, but they don’t care. As long as it is not, “Hey, we want tighter gun control,” anything beyond that is, “Don’t worry about those amendments. Don’t worry about those articles. As long as it doesn’t involve firearms, it doesn’t matter.”

HN:

The Republicans are running a big political gamble, because if Hillary wins, she will most likely appoint a much younger, and more liberal, judge than Merrick Garland. Trump’s already announced that he will appoint his sister to the Supreme Court if he is elected President. You can’t fault that, because she’s probably more qualified for the Supreme Court than he is for the presidency. At the root of the refusal of Republican Senators to confirm President Obama’s appointees, is their fear of conservative

activist organizations, such as the Heritage Action, which has threatened Republican Senators with bad ratings if they vote to confirm any single Obama judicial appointee. The Republican Senators are not only afraid to do their constitutional duty to advise and consent but they’re also deferring that decision to their legislative masters, the lobbyists of corporate America and the right wing nut groups. FC:

The only people who benefit from this lack of judges out there are the corporations, the corporations who fund the Heritage Foundation: Exxon, the Koch brothers, the list of usual suspects. Those are the same people who fund the Republican politicians. This is their marching order, and that is, “Do not let these judges get in place, because once they do, I got to go stand trial for poisoning an entire community, and I don’t want that to happen for another five years so we can come up with more evidence to try to convince a jury that we didn’t do it.” That’s exactly what’s happening, and I hope that the American public understands this. These courts are important. The Democrats need to understand, the courts are so important, but right now it seems like only the Republicans understand the importance of the courts.

HN:

There’s one other consequence to this, too. The Republicans have done everything they can possibly do in federal court to abolish class actions. Class actions provide the only opportunity for tens of thousands of individual citizens to seek redress of their common grievances before one judge in one proceeding. The Republicans are doing all that they can to abolish class actions, in order to require individuals to prosecute their individual case against a corporation, one-on-one in a federal court, which few individuals can afford to do. Republican politicians are effectively protecting the corporations, but the result is they’re also causing more and more delay in federal courts. There’s a very famous statement attributed to William Gladstone that “justice delayed is justice denied” and that denial of justice is the gift of Senate Republicans to our federal judicial system today.

FC:

Howard, thank you for telling us the story. I hope people take this seriously this November, because this is an emergency, and we have to protect not just the Supreme Court, but every single courthouse around this country. Howard, thank you.

HN:

My pleasure, Farron.


Women en Masse: Aimee Wagstaff Pioneers Tort Group For Female Litigators By Mollye Vigodsky

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A

imee Wagstaff is breaking new ground for women in the legal world. A founding partner of the Denver based law firm Andrus/Wagstaff, the 39-yearold attorney enjoys not only growing her own thriving civil litigation practice, but also opening doors for other female litigators, especially in the area of mass torts. “In my first few years of doing mass tort work, I realized that a lot of times I was one of the only women, if not the only woman, in the courtroom or in the meeting,” Wagstaff said. To change that, she launched Women En Mass, an annual working retreat for women in mass torts held in Aspen, Colorado. The purpose is to open more doors for women, in an atmosphere where they can relax, create new relationships, and foster old ones. It’s also free to attend and funded through sponsorships. “It brings together the upper echelon of mass tort attorneys that are women,” Wagstaff explained. “Women who have been doing this for decades without much support and guidance and leadership. Then also bring along the younger women, in an environment that is pretty informal, social, and allows a lot of networking and learning.”


“I think that strengths that women bring are different than the strengths that men bring and together they can really complement each other,” said Wagstaff. “I think there needs to be more awareness and more mindfulness of those differences. One is not better than the other. I had a fantastic mentor who is now my partner. His name is Vance Andrus and he really promoted me and opened doors for me and I wanted that same experience to happen for other women.”

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Wagstaff was a featured speaker at the nationally renowned Mass Torts Made Perfect conference in Las Vegas, Nevada, last April. She talked about Women En Mass, now in its fourth year, as well as the growing importance of including and promoting more women in mass torts. “I think having more women involved in leadership positions is important for the diversity of ideas that it brings,” Wagstaff said. “The purpose of creating Women En Mass, which is often referred to as WEM, is not to take anything away from what the men have done, but I just think women’s strengths need to be recognized and appreciated and they need to be in leadership positions.” Wagstaff herself has made MDL history. In 2015, the Honorable Judge Kathryn H. Vratil appointed her to serve as Co-Lead counsel of the first ever majority women MDL PSC. The litigation involved a product made by Ethicon, Inc., the power morcellator, that was used during fibroid removal or hysterectomy surgery. The morcellator litigation involves women and their families across the country, who have been diagnosed with devastating and permanent injuries after its use. “I think that strengths that women bring are different than the strengths that men bring and together they can really complement each other,” said Wagstaff. “I think there needs to be more awareness and more mindfulness of those differences. One is not better than the other. I had a fantastic mentor who is now my partner. His name is Vance Andrus and he really promoted me and opened doors for me and I wanted that same experience to happen for other women.” Women are responding. WEM had an attendance of about 50 women when the first retreat was held in 2013. The second year attendance doubled and last The Trial Lawyer x 77


year, just shy of 200 women came. They also got a special call from Democratic presidential candidate, Hillary Clinton who let them know how she supported their efforts. Wagstaff makes it clear that promoting women in mass torts is not a battle of the sexes. “Men are our biggest allies,” she said. The issue is empowerment. “I am not in favor of promoting who are not prepared or who are undeserving or promoting women who are too unqualified to take the spot,” Wagstaff said. “What I think is that there is a huge underbelly of qualified women who are ready and need to start taking that next step. Part of my goal with WEM is to empower women to feel like they should be taking those steps, to feel like it’s their time, to feel like it’s their right and to ask for it.” The next Women En Mass conference is set for September 26–27 at St. Regis Aspen Resort. If you would like to learn more about it, go to www. WomenEnMass.com.

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Summit Trial Lawyers

We can all recall stories over the years where someone identified a specific pivotal moment, or conversation that either changed their life, or solidified a life decision they’ve made. It is often followed by recognition that if not for that moment, they could be very well leading a completely different life. The Trial Lawyers Summit held this February was my moment and further confirmation on my decision to be a trial lawyer.

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Imagine staying at The Loews Hotel in South Beach. Okay, let’s sweeten the deal. We’ll make it a warm winter week, including selfies with Terry Bradshaw, and beachfront villa soirees with some of the nation’s leading attorneys. Now imagine a two-hour lecture on the finer points of voir dire, after already attending “I recommend this event to any law student that has a serious interest in becoming a trial lawyer. The diversity, wisdom, and experience that the summit encapsulates is unparalleled. I guarantee that regardless of your background or personality type, there will be an accomplished attorney present with whom you can readily identify.”

a half-day of law school lectures. If that sounded pretty intense, you have no idea. This was the spectrum of my experience at The Trial Lawyers Summit held this winter in Miami Beach. Following my 1L year at Western New England University School of Law, I was granted an opportunity to study at the University of Miami Law for a semester. Before harassing my uncle for the keys to his timeshare, I researched what legal events I could attend to maximize the potential of my visiting semester. As a future litigator and intern for Massachusetts criminal defense attorney Joe A. Smith, naturally a “summit” of trial lawyers piqued my interest. Little did I know that one click to confirm my RSVP would flourish into numerous opportunities. While I am a firm believer in the cliché quote “90 percent of life is just showing up,” I take it a step further by adding don’t just show up, “show up prepared.” I read my confirmation letter and took notes on what classes would be offered, and the topics guest speakers would be addressing to establish a strategic roadmap. After brushing up on my elevator speech, and reaching into the closet for my trial lawyer uniform, I was ready to begin my adventure. As a student in the infancy stages of a legal career, events like the Trial Lawyers 80 x The Trial Lawyer

Summit can have lasting impacts. Not only was the event premium priced for students (free), the diversity of information I was exposed to was invaluable. Hearing experienced veterans vividly recount courtroom war stories about multi-million dollar verdicts was much better than my federal income tax class, if you ask me. As a law student, I found the NTL summit well-structured and accessible. The concurrently running workshops allowed attendees to either narrowly tailor their focus, or simply let their curiosity be their tour guide. From experience, I know that many CLE events are often too technical and arcane for the likes of law students and young lawyers. However, the speakers at this event were so relatable, an undergrad student with interest in the law could have followed at decent pace. Topics such as the “essential role of visual aids” and “revitalizing your marketing strategy” gave practical advice that may not be covered in law school. One particular seminar that stood out was the Media and Marketing Workshop, where the directors of approximately 200 short commercials created by NTL members were presented in 10 minutes. These commercials featured everything from talking dogs to the all too familiar stern partners you see on daytime television. While the event was businessoriented, the mixers and social events quickly reminded you that you were in

South Beach. To make matters more festive, the summit fell on Super Bowl weekend which provided a backdrop for great entertainment. Sponsors threw villa parties, and Terry Bradshaw delivered a keynote speech tantamount to any post route you may have seen him throw. Unfortunately, this may have been the first and last speech where he incorporates his confession about his secret attraction to Tom Brady. Setting aside the fact that the substantive information conveyed is highly beneficial; the Summit provides one of the best opportunities available for students and rookie lawyers alike — networking. Networking and finding a mentor are vital pieces of the puzzle that a law student and young lawyers must solve. Coming out of law school, many students have no idea what area of law they would like to practice. A wise man once told me, “If experience is the best teacher, evaluated experience is the principal.” Every competent attorney has made a mistake, missed the mark, or has a story about the time when he thought he burned the barn. Why travel that road if there is a map that can help you dodge perilous pitfalls? I recommend this event to any student that has a serious interest in becoming a trial lawyer. The diversity, wisdom, and experience encapsulated in the summit is unparalleled. I guarantee that regardless of your background


or personality type, there will be an accomplished attorney present with whom you can readily identify. I long ago purchased a ticket to the train of thought that one creates their future by what they envision. Being around accomplished attorneys, students, and marketers puts you as close to the practical part of the profession as possible. At the Summit, I made sure that I stopped every speaker and sponsor that I could to gain practical advice about the profession. My prepared 30 second “elevator speech” proved to be helpful whereas when opportunities presented themselves, I was able to turn them into internship offers. A derision often heard is that lawyers are self-centered and self-serving. To the contrary, every lawyer I approached at the summit was eager to give me a word of advice, and conveyed a common theme — “put your clients first.” To hear that recurring statement from people who’ve probably never met each other spoke volumes about the individuals in this industry. An experience I’ll never forget is being invited to dinner with The Cochran Firm. The partners and

senior associates treated me like I was a member of their firm without the motion requests. During dinner, they gave me invaluable advice and discussed strategies that will benefit me in becoming a zealous advocate for my clients. As a student, this was motivation to supersede my own expectations of myself. If someone would have told me that one day I’d be getting advice passed down directly from Mr. Cochran himself, I might’ve asked him or her to see a doctor. Attending events such as these can have positive psychological effects, and boost one’s confidence. I think we can all agree many people genuinely desire to succeed and perform on a high level. However, how many of those people can say that they are going the extra mile and investing their free time in honing their craft? There is something special about showing yourself you mean business. It’s a proven fact, the more you’re around your targeted position, the further you sink into in your role. Assume arguendo, instead of a law student, you are a promising college athlete, or a rookie sports star. If a group of championship-

caliber professionals held a skills camp, would you rest on your laurels, or would you get up and go be a sponge soaking in the habits that brought them to prominence? I believe your answer to that question can tell you a lot about your trajectory. More often than not, little decisions to maximize your potential can snowball into bigger opportunities. Don’t miss your avalanche. Kedar Ismail is a 3L at Western New England School of Law in Springfield Massachusetts. He has also attended University of Miami as a visiting student focusing on Sports and Entertainment Law. During his law school career Kedar has served on various boards including Representative for the Student Bar Association, and President of the Sports and Entertainment Law Society. He is currently interning for Springfield, Massachusetts criminal defense attorney Joe A Smith III. After law school, Kedar wants to practice as a trial lawyer, and ultimately shift his focus into an agency for entertainers and athletes.

A Practice Focused Primarily on Burn Injuries

The investigation of burn cases is time sensitive. Walker Morgan has a team of forensic engineers on call, including mechanical, cause and origin, propane, natural gas and others.

www.WalkerMorgan.com The Trial Lawyer x 81


America’s Trial Lawyers

Protecting A Threatened Species By Steven G. Greenlee

As a threatened species, the trial lawyer is likely to become endangered — perhaps extinct — unless the circumstances threatening its survival improve. The greatest threat to the survival of the American trial lawyer is, of course, the loss and destruction of its critical habitat: The civil jury system. It is not news that the civil jury system is under attack. It has been under attack for decades. Attorney Stanley Sacks in 1965 (yes, 1965) led off his “Preservation of the Civil Jury System” article by stating, “The civil jury, one of our most cherished democratic institutions, is being threatened with extinction.” While it hasn’t happened yet, the threat is still palpable; legal scholars, attorneys, and civil jury advocates continue to address the issue in books, articles, commentary, and speeches, spotlighting the ongoing — and increasingly successful — efforts by those who seek to diminish or completely do away with civil juries. Indeed, one need only search Google for “death of the civil jury” or “civil jury attack” or other similar terms to locate many websites, blogs, and editorials devoted to educating the public about the importance of, the threats to, and the preservation of, America’s civil jury system.

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No greater threat exists to the protection of the public and to placing individuals on equal footing with corporations than the destruction of the civil jury system. In his 1878 book, History of Trial by Jury, William Forsyth recognized jury trials as a critical weapon in “democracy’s arsenal to combat tyranny.” Of course back in Forsyth’s day, the tyranny was principally the government. But over the years, not only have trial lawyers continued fighting a tyrannical government (where local, state, and federal lawmakers pass laws and ordinances that take away the rights of ordinary people), but they now face Big Money spent by Big Pharma, Big Insurance, Big Banking, and Big Corporations, all while being represented by Big Law. But is the civil jury trial preservationists’ message being heard? And if it is heard, does the public even care? Is the message of preserving the right to a civil jury lost in the face of a media spectacle concerning the debate over the Second Amendment? Or the debate over free speech? Or privacy? Or abortion? Or health care? Or gay marriage? Among these issues, preserving the civil jury — as important a right as any — is but a blip on society’s radar.


It doesn’t help that to this day we still must contend with the public perception of trial lawyers as “ambulance chasers” or “greedy” or ”money hungry,” or “slimy,” or “sharks,” or worse. If you have never read the comment sections of news articles involving trial lawyers who bring lawsuits to protect the rights of their clients, you should do so. But prepare yourself: There is a whole world of folks out there — a vocal, acerbic bunch — who believe trial lawyers are a scourge and do not hesitate to provide their opinion. These folks attack — with angry commentary and vile language — injured plaintiffs (or even grieving family members who file wrongful death claims). They save their most biting comments, however, for the lawyer whose motivation (in their eyes) is always singular: money, money, money. These are not simple internet trolls, and they

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are not alone. They garner “likes” and supportive comments from similarlyminded individuals who view trial lawyers in the same dim light as their opposing political party’s candidate for president. These are folks who do not see — or refuse to see — the importance of trial lawyers in protecting their rights. Maybe they had a bad experience with a lawyer. Perhaps cheesy lawyer advertisements shaped their view of trial lawyers. Most likely, however, they are among the masses influenced by the Big Money advertising machine that is corporate America. The same machine that vilified Stella Liebeck who sued McDonalds after suffering third degree burns from hot (read: scalding) coffee. The same machine that convinced America that tort and medical malpractice reform was necessary, which had the effect of taking away the right

of Americans to be fully compensated for injuries caused by the negligence of others. To be sure, trial lawyers and their habitat are threatened. The news fills the airwaves and Internet with evidence of their continual, slow decline. Judicial budget cuts continue to make obtaining justice more difficult. A cynical public continues to perpetuate lawyer stereotypes with offensive jokes. Special interests and lawmakers continue to follow the money, taking away rights, imposing damage caps, and limiting the rights of citizens to bring claims. The apathetic and uninformed give away jury rights and other critical rights every day through arbitration clauses and by continuing to go along with whatever they see on the mainstream media (paid for by big business). The Supreme Court has shown its pro-corporate stance by


enforcing forced arbitration in cases such as AT&T Mobility vs. Concepcion, and CompuCredit Corp v. Greenwood. While the future appears bleak, there are a few positive signs in some areas. In May 2016, the Consumer Financial Protection Bureau released a proposed rule to restrict the use of forced arbitration clauses in consumer financial contracts that prohibit a consumer’s participation in class action suits. It is a step in the right direction, but only a start in restoring some of the rights stolen from Americans. No doubt financial institutions will fight back. How can we compete with the power of corporate America in presenting the truth about trial lawyers and the importance of the civil jury system as the guardian of American rights and liberties? Are we as trial lawyers doing enough to educate the public about what life in America would be like when the civil jury system is destroyed and trial lawyers become extinct? One way we at Burg Simpson help educate the public is by sponsoring a scholarship competition, wherein we award ten scholarships to collegebound high school seniors who write a 1500 word essay on the importance of the civil jury system, the threats to the civil jury system, and the importance of preserving the civil jury system for future generations. We partnered with the Colorado High School Activities Association to promote the scholarship to high schools across Colorado and receive upwards of 100 entries each year. Suffice it to say that most of these students had little to no understanding of what the civil justice system is before they entered the competition. After reading the essays, however, clearly these students do their research and understand the importance of protecting the civil jury system. But the education doesn’t stop with them. These students talk with their teachers and counselors about the topic as they write. They talk with their parents. They talk with their school counselors. We announce the competition and award winners at a

special presentation on center court during halftime of the Colorado State High School 5A basketball championship game, attended by thousands of parents, teachers, and students. We hold an awards banquet for the winning students, their families, and teachers, emphasizing again the importance of the civil jury system. Many people hear our message. A scholarship competition is one way to spread the message to the next generation of voters that trial lawyers and the civil jury system deserve protection and that no less than their Constitutional rights and liberties are at stake. What can you do to help protect the civil jury system? What can you do to protect your ability — and the ability of our sons and daughters — to practice as a trial lawyer? Are you speaking out against mandatory binding arbitration? Are you supporting political candidates who understand the importance of the civil jury, who understand the right to bring lawsuits for injuries and damages, who understand the right of injured persons to full compensation? Are you attempting to find a seat on a state’s judicial nominating commission? Are you working to fight special interest groups whose goal is to bring down the civil jury system? Are you supporting consumer advocacy groups whose goal is to protect the

civil justice system, like the Center for Justice & Democracy? Are you writing articles for journals or law reviews? Are you testifying before Congress or state legislatures on civil justice issues? Michael Burg, a Past President of The National Trial Lawyers and a 2016 inductee into The Trial Lawyer Hall of Fame, agrees that preserving the civil jury system is critical. “These are dangerous times,” Michael says. “Banks, big business, insurance companies, and others want to destroy the public’s rights and we as trial lawyers must work every day to fight these forces to preserve trial by jury. We cannot be afraid to reach out to the public and let them know that trial lawyers make a difference in protecting the most paramount rights we have as citizens.” As trial lawyers, we must work together, continuously, tirelessly, relentlessly, to safeguard the rights and liberties of the American public. If we don’t, no one will. And if that happens, we trial lawyers are likely to go the way of the dodo.

Steven G. Greenlee is a shareholder at Burg Simpson Eldredge, Hersh & Jardine, P.C. in Denver, Colorado.

Over the past four years, the Burg Simpson law firm has awarded $44,500 in scholarships to winners of its Scholarship Contest, which asks college-bound high school seniors to write an essay on “The Jury System as the Protector of Rights.” It has proven to be an excellent opportunity to educate the young people across the state of Colorado about the importance of the civil jury system and the need to preserve it. The Trial Lawyer x 85


The National Trial Lawyers The National Trial Lawyers: Top 100 Trial Lawyers is an invitation only, professional association composed of America’s most accomplished Trial Lawyers from each state. The National Trial Lawyers: Top 40 Under 40 is an invitation only, professional association comprised of America’s top young trial attorneys. Specialty Associations by The National Trial Lawyers promotes excellence in specific areas of trial practice. Membership into these associations is open to prominent and experienced civil plaintiff or criminal defense trial lawyers who specialize in specific areas of law. For a complete list of Specialty Associations by The National Trial Lawyers please visit our website.

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RICH NEWSOME AND BAHAMAS’ ABACOS ISLANDS By Cathy Deloney Corbo

Question: You have over 341 million dollars recovered, but more importantly you are passionate about helping your clients and ultimately making products safer as a result of product liability litigation. Where do you spend your favorite vacation getaway? Answer: For Traveling Trial Lawyer Rich Newsome, the Bahamas’ northern providence Abacos Islands is his favorite vacation getaway.

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Rich Newsome, senior partner of the Newsome Melton Law Firm, says “Abacos consists of a 120 mile long island chain known as “mini Bahamas” complete with its own Out Islands. There are dive sites with underwater caves and colorful coral reefs. The calm, shallow and navigable waters of the Sea of Abacos are great for boating with access to the islands and marinas positioned on the coast. Our favorite place to stay is the Green Turtle Club.” The Super Lawyer since 2006 continues, “Since we started going 6–7 years ago with the kids, we realize there are other Trial Lawyers that like to sneak away to this part of the Bahamas with their families. We always run into someone we know. The nice thing about the Bahamas is the fact it is close and convenient to get to. We usually fly Airgate Aviation out of New Smyrna Beach, Florida into Marsh Harbor. The airport is relatively small and the price is reasonable. The plane is a

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Cessna twin engine piston that only seats seven and because it is small, we like to travel in the morning to avoid afternoon thunderstorms.” Rich, who served as Past President of the Florida Justice Association and is a current member of the Executive Committee of the National Trial Lawyers adds, “We take a cab to the local grocery store and load up to take to the house we rent at Green Turtle Club. From Marsh Harbor we then take the 30-foot boat known as the ferry to the Sea of Abacos.

All the houses of Green Turtle come equipped with radios and everyone communicates with them, I like to call it Coconut Telegraph. Golf carts are the primary vehicles and are a great way to explore the island.” Rich was recently named Best Lawyers 2016 Orlando Personal Injury Litigation Plaintiffs’ Lawyer of the Year. He and his family enjoy many activities. “We like to fish, dive for sand dollars, wind surf and we


enjoy kite boarding when the wind is up. Lobster season opens August 1st (closes on March 30th) and we like to dive for lobsters using spears, Hawaiian Sling or Pole Spears. You have to hold your breath as you dive 10-30 feet, spear your lobster, come up and put it on your boat and repeat the process. They are some of the best lobsters. We also like to go deep sea fishing and deep dropping which you go about a mile out and fish 600 feet by dropping an electric reel. We really enjoy Lincoln and Marcus’ (father and son team) picnic adventure. They will take you fishing for snapper, lobster or conch and then head to Lincoln Park, a nice Laguna in Manjack Cay. They pull the boat up on the beach, then get an open fire going cooking up onions and potatoes with your fresh caught seafood. Usually Lincoln’s wife sends a big salad and that is the best lunch bar none. We just relax in the turquoise water sipping on rum punch while the kids dive and snorkel or feed the fish guts to the sting rays and turtles. It is the best, most fun beach cookout.”

Rich was recently honored by being invited to be a member of the Summit Council which is an exclusive group of today’s top civil justice attorneys. “I have a 38 foot boat, a triple engine center console which I keep out of water in dry storage. I just call the day before we head to Abacos and they get it ready in the water for me. We love to island hop and visit the different local bars. We anchor up in the lagoon to visit Grabbers in Great Guana Cay. Another favorite is Nippers, especially its popular pig roast every Sunday. There’s a crowd enjoying all they can eat and drinking plenty of Nipper Juice, a tropical drink that is a lot stronger than it tastes. Every bar has its own unique rum drink — the best is Miss Emily’s Goombay Smash. You can find it at Miss Emily’s Blue Bee Bar. The recipe is top secret and she was famous for making it in big gallon jugs so you could not see her recipe. Her daughter now runs the bar. We also enjoy the Tipsy Turtle, the Yacht Club pub’s specialty rum punch. There are about five or six bars and whichever bar the Gully

Roosters Band is performing, that is the party. They have a great reggae fusion sound and rotate around the bars as the crowd follows them,” Rich shares. Rich is extremely honored to be the 2015 AAJ’s Steven J. Sharp Public Service Award recipient along with his clients, Corey and Kaylee Burdick. The award recognizes claimants and their attorney who have made the most difference in the year for the American civil justice system. Rich says,” This is the result of the defective airbags and the Takata recall is the largest in history. I give many thanks to US Senator Bill Nelson for bringing the awareness. It is unfortunate Corey had to lose an eye due to the faulty airbags. I am the happiest when I am advocating and making a change for the better for the people and to help save lives. I like to bash big companies that are doing bad things and right the wrong.” This Traveling Trial Lawyer and his family have a permanent favorite vacation getaway and try to get there often. There is plenty to do and yet a great place to relax and share family time. The Trial Lawyer x 89


RAISINGTHEBAR

Christopher J. Cadem of Cadem Law Group, PLLC in Fergus Falls, MN has been selected as an Up & Coming Attorney by Minnesota Lawyer magazine. Cadem is a National Trial Lawyers: Top 100 Criminal Defense attorney.

x In what is believed to be a record-setting verdict in Pueblo Colorado, a jury awarded more than $5.5 million for the wrongful death and suffering of Sophia Alcon, a resident at Life Care Center of Pueblo. “It was an honor to represent this entire family on behalf of their mother. At the end of the day, we had a jury that really didn’t like this company putting profits ahead of patient care and then failing to come to Pueblo to answer for any of the poor care, gaps in the charting, and the staffing shortages, all of which led to a horrific outcome for Ms. Alcon,” said National Trial Lawyers: Top 100 Civil Plaintiff member Brent Moss, one of the attorneys for the Alcon family. Details of the case are as follows: 90 x The Trial Lawyer

• Plaintiff George Alcon was awarded a unanimous verdict of $5,557,066.43 in the District Court of Pueblo County, Colorado on Friday, May 13, 2016. • Attorneys from Reddick Moss, PLLC represented Mr. Alcon in the lawsuit, which was filed on behalf Mr. Alcon’s mother, against Life Care Center of Pueblo, a nursing home, and its corporate parent, Life Care Centers of America, Inc. • The jury awarded $500,000 in damages stemming from the wrongful death of Sophia Alcon, $57,066.43 in economic damages for negligence, and another $5 million in punitive damages for wrongful death. • Both Defendants were held jointly liable for Ms. Alcon’s death after the jury concluded that the Pueblo nursing home was operated as a joint venture by Life Care Centers of America, Inc. and South Pueblo Medical Investors, LTD, a company doing business as Life Care Centers of Pueblo. • Ms. Alcon’s son, and personal representative of her Estate, George Alcon, filed this lawsuit on January 30, 2015, against the nursing home and its corporate owner, Life Care Centers of America, Inc. • Denver-based attorney Brent L. Moss, along with Brian D. Reddick and Robert Francis of Little Rock, Arkansas, all from the Reddick Moss, PLLC law firm, represented the Alcon family. Kevin Kuhn, Michele Choe, and Nick Boeving of Wheeler Trigg O’Donnell, LLP in Denver, Colorado represented the Defendants. This verdict is the second multi-million dollar verdict in two years in Pueblo by the Reddick Moss law firm. The previous verdict was entered on May 22, 2014 in the case of Alice M. Franz, as Attorney-in-Fact of James Edmond Sharon v. SSC Pueblo Belmont Operating Company, LLC d/b/a Belmont Lodge Health Care Center, SavaSeniorCare Administrative Services, LLC, and SavaSeniorCare Consulting, LLC. In that case, the jury awarded James Edmond Sharon $300,000 for negligence and $3,000,000 in punitive damages jointly against the operators of Belmont Lodge Health Care Center, a nursing home in Pueblo, Colorado.


Appeals Court Upholds $3M Verdict for Child’s Birth Injuries in Johnson & Johnson Topamax Case Simmons Hanly Conroy, a national litigation firm, announced on May 16, 2016 that a Pennsylvania appeals court has upheld a $3 million verdict against Janssen Pharmaceuticals, Inc., a subsidiary of Johnson & Johnson, for severe birth injuries resulting from the mother taking Topamax during pregnancy. Simmons Hanly Conroy and National Trial Lawyers: Top 100 attorney Andrew Williams represented parents Kelly and Brian Anderson against Janssen and Johnson & Johnson in the 2014 trial in the Court of Common Pleas in Philadelphia County. The Andersons’ daughter was born in 2008 with bilateral cleft palate and lip. The jury found the drug manufacturer was liable for failing to warn the mother’s doctors of the increased risk of birth injuries when Topamax is taken during the first trimester. On May 11, the Superior Court of Pennsylvania affirmed the jury’s ruling, finding that Janssen failed to make proper efforts, in general, to warn doctors about what risks it may have known about Topamax. “The Superior court’s decision again proves that big pharmaceutical companies consistently hide dangerous side effects from the American public, but that our legal system allows consumers and families to level the playing field and hold them accountable,” Williams said. “Simmons Hanly Conroy is pleased to secure justice for this well-deserving family and ensure their little girl receives the quality care and treatment she deserves.” On the appeal, Janssen argued it should not be found liable for failing to warn because it was unable to change the drug’s pregnancy warning level via the label without permission from the U.S. Food & Drug Administration. The three-judge panel disagreed, saying because Janssen is a name-brand drug manufacturer, it still had a duty to warn doctors and the labeling was a separate issue.

“Janssen’s argument fails to differentiate between the nonspecific, potential risk that Topamax’s Category C label implied and a known risk in which the drug has been scientifically established to cause particular birth defects,” the opinion said. “The evidence presented at trial indicated that Janssen knew of a causal relationship between Topamax and specific birth defects, including cleft palate, but failed to disseminate the information so that Kelly’s physicians would be adequately warned.” Topamax is prescribed to help prevent certain types of seizures and to prevent migraine headaches in adults. The Antiepileptic Drug Pregnancy Registry reports a 3.8 percent prevalence of oral birth defects in children exposed to Topamax in utero during the first trimester. Two of the particular risks listed by this registry are cleft lip and/or cleft palate in newborns, which is known to develop in the first trimester of pregnancy before many women even know that they are pregnant. The FDA required the pharmaceutical company to update Topamax’s label in 2011, three years after the Anderson child’s birth. Kelly Anderson took Topamax to treat migraine headaches in 2007 and 2008 while pregnant. She was unaware of the dangerous effects it could have on her unborn child. In August 2008, Anderson’s daughter was born with bilateral cleft palate and lip. Since then, the child has required more than 14 procedures, including several surgeries, to treat the condition. She has also suffered hearing loss, speech problems, and has been bullied because of her speech and appearance. The jury awarded $1.5 million to the little girl for non-economic damages and $1.5 million to her parents to pay for her anticipated healthcare expenses. “The outcome is not about the money,” the family said in a prepared statement. “It’s about a jury giving us justice for us and our child. We hope this will help make sure no other children have to live with the injuries our daughter has endured.” The case is Anderson et al. v. Janssen Pharmaceuticals Inc., case number 2330 EDA 2014, in the Superior Court of the State of Pennsylvania.

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THEGOOD,BAD,UGLY By Farron Cousins

The

Good Few issues have as much impact on the future as climate change. Sadly, the issue of climate change has taken a backseat to economic policy, divisive cultural issues, and the threat of terrorism. The main reason for this is the media coverage of these issues. Shortly after the Paris climate agreement was reached, both the Republicans and Democrats held presidential debates in the US, and not once in either debate was the Paris accord or the overall issue of climate change addressed by the moderators of those debates. The media doesn’t believe that climate change is a marketable idea, so it focuses on issues that are more divisive and sensationalized in order to attract more viewers. Another factor driving this selective coverage is the mentality of our aging politicians. As infamous political advisor Karl Rove recently pointed out, why should they care about climate change when we’ll all be dead in the next 60 years or so? While that may be true for our elected officials, that isn’t true of everyone alive today, and that’s why young American citizens — children — are forcing action on the issue of climate change. Several court rulings from April and May have allowed children to hold corporations and politicians alike accountable for their slowmoving action to address climate change. In April, an Oregon judge reversed a lower court’s ruling that a lawsuit brought by children against the state could not force the state to develop a new, more stricter emissions plan, which has now forced Oregon to come up with a new plan by the end of this year. In May, the Massachusetts Supreme Court ruled in favor of a lawsuit brought by four teenagers against the state’s Environmental Protection Agency for not meeting its own emissions standards. These lawsuits — and the young litigants — represent a new front in the fight to save the planet. Where action has failed in the political arena, these young activists are finding renewed strength in the judicial system, and their hard work and dedication will create a better future for all of us.

92 x The Trial Lawyer

The

Bad Twenty-three people in the United States have been shot, many of them killed, by toddlers so far in 2016. When you listen to the arguments of 2nd Amendment activists, their number one talking point is that we shouldn’t punish responsible gun owners by making it slightly more difficult to buy deadly weapons. Some of the people who made these arguments on their social media outlets were accidentally killed by their own children this year because they weren’t the responsible gun owners that they claimed to be. The gun control debate has simmered down this year, but as we inch closer to the general election we’re already beginning to hear NRA-sponsored arguments creeping back into our political discourse. Worse still, we’re beginning to hear the NRA’s talking points coming out of the judiciary. In May, Judge Richard J. Leon in Washington, D.C. struck down a ban on concealed weapons in the District on the grounds that it infringed upon the 2nd Amendment (imagine how great things would be in this country if all of the other Constitutional Amendments were defended as staunchly as the 2nd Amendment!) In his ruling, Judge Leon parroted the same line we’ve heard countless times in the past: “…law-abiding responsible citizens to carry arms in public for the purpose of self-defense does indeed lie at the core of the Second Amendment.” Before Judge Leon issued his ruling, the law had only allowed for those individuals with a legitimate reason to fear for their safety to carry concealed weapons with a permit. The ruling will allow anyone to apply for a permit — whether his or her safety concerns are real or imaginary or even nonexistent. Judge Leon would be doing himself a favor by looking at the statistics from the first half of this year. Sure, there are plenty of law-abiding, responsible gun owners in this country — probably the majority of gun owners fit into that category — but when we live in a country where children are killing themselves, their siblings, and their parents because of a parent’s irresponsibility then we have to do something. Sitting idly by and reading about these atrocities every week isn’t solving the problem.


The Ugly As the old saying goes, power corrupts and absolute power corrupts absolutely. And when you’re a defendant facing a lofty sentence in the courtroom, the absolute power rests with the judge who will be handing down your sentence. It doesn’t take much for a weak-willed person or even someone that has had feelings of inadequacy for most of their lives to let that kind of power go to their heads. Combine those personality traits with those of a repressed sexual deviant, and you get former Cross Country District Judge Joseph Boeckmann. Boeckmann was forced to resign in early May when it was discovered that he had collected a perverted treasure trove containing more than 4,000 photographs of nude male defendants on his computer. These photographs were discovered after former defendants, including one under the age of 18, filed a complaint with the state against Boeckmann. Boeckmann’s scam worked like this: During sentencing hearings for minor offenses, the former judge would hand the defendant his personal phone number, then sentence them to “community service” to be performed at Boeckmann’s home. Once there, according to the complaint, the judge would have the men strip nude, sometimes he would paddle their exposed behinds, and then take pictures of the men in sexually suggestive poses in and around his home. The paddle marks were still visible in many of the pictures. One of the men did state that there was a sexual relationship between himself and the judge during this time, while another claims that Boeckmann would make him bend over to pick up cans and even instructed him on how to bend over to do it. In his resignation, Boeckmann promised that he would never seek another government job for the rest of his life, but that’s hardly a punishment. Hopefully as the investigation continues, Boeckmann will find himself in front of a sentencing judge that is free from corruption and will finally deliver some justice to this disgusting old pervert.


THE ENVIRONMENT

Across 1. Historically, harmful environmental activities could only be addressed in state courts on a case by case basis, as indicated by _ _ _ _ _ _ v. Ridgefield Lumber Company, 131 Wash. 183 (1924). 7. Congress’s power to implement a _ _ _ _ _ _ formed the basis for its control over migratory birds. See Missouri v. Holland,

252 U.S. 416 (1920). 13. Means by which harmful agents on the ground pollute streams and waterways. 14. The most wide-spread nuclear power plant leak occurred under its auspices. 15. Used to express hesitation or uncertainty. 16. Human Factor (Abbr). 17. Site Assessment System (Environmental law acronym). 18. Premanufacture Notice (Environ-

mental law acronym). 19. Area of Contamination (Environmental law acronym). 21. Describes sensation requiring a scratch. 23. Medical for back. 24. Three items. 26. No. 27. Its extinction would pose the greatest single threat to the planet’s ability to convert carbon dioxide into oxygen. 29. Sarcastic laugh.


30. General Agreement on Tariffs and Trade (Abbr). 33. Its quest lead to unsightly strip mining. 34. Prior to the EPA, Congress could prevent its discharge into navigable waterways. United States v. Repulic Steel Corp., 362 U.S. 482 (1960). 37. Measure of resistance. 39. You (Archaic). 40. Background (Abbr). 42. Confines animals. 44. Mother. 45. Open wasteland, common where drainage is poor. 47. Enlisted woman (Abbr). 48. Perhaps, there’s just too many for the environment to handle. 50. United Nations Organization (Abbr). 51. American Association of Engineers (Abbr). 53. One or more without specification or identification. 54. Very close. 56. Variable of prefix meaning before. 57. Shining cloud. 59. The state could not, per the landmark case of _ _ _ _ _ _ v. California Coastal Commission, 483 U.S. 825 (1987), require beach-front bungalow owners to dedicate an easement to the public as a condition for obtaining a permit to expand. Restrictions for aesthetic purposes constitute a “taking” unless they substantially advance a legitimate state interest. 61. Environmentally active club. 62. The landmark _ _ _ _ _ _ v. Ambler Realty, 272 U.S. 365 (1926) formed the underlying predicate for governmental regulation of land use.

THE ENVIRONMENT

Down 1. Human by-product made from fresh air. 2. Radiant emission from the upper atmosphere. 3. It may be dangerously polluting your basement (Chem. symbol). 4. Total Organic Halogen (Environmental law acronym). 5. Efficiency (Abbr). 6. Low frequency (Abbr).

7. Small amount of pollutant. 8. Progress with speed. 9. Estimated Tax Schedule. 10. Venomous snake. 11. Industry often at odds with the Spotted Owl. 12. Only arbitrary and capricious actions by a regulatory agency should be subject to judicial review, according to Vermont _ _ _ _ _ _ Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978). 17. Describes format of current protection for air, water, oceans, and public lands. 20. Contour Interval (Geological). 21. Only this level of cooperation can protect the ozone layer (Abbr). 22. Yukon Territory (Abbr). 25. Orbiting Geophysical Observatory (Abbr). 28. Natural form of “pollution” normally corrected up by termites, instead of superfunds. 31. The whole. 32. General Accounting Office (Abbr).

34. Postmaster General (Abbr). 35. Trihalomethanes (Environmental law abbr). 36. Numerals (Abbr). 37. Earthly assets requiring international protection. 38. State least likely to suffer from the pollution of others. 40. Tree or shrub that has been dwarfed. 41. Earth. 43. Combining form meaning good or well. 44. High IQ society. 46. Medical for both eyes. 49. Combining form used in the names of animals who had suffered environment-related extinction long before man appeared on the scene. 52. Suffix used principally to form linguistic nouns. 54. American Ornithologists’ Union (Abbr). 55. Tender loving care (Abbr). 58. Branch (P.O.). 59. Western state (Abbr). 60. In the place cited (Abbr).


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The Trial Lawyer, Summer 2016  

A magazine for lawyers and a voice for justice.

The Trial Lawyer, Summer 2016  

A magazine for lawyers and a voice for justice.

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