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The Trial Lawyer x 3


Chris Searcy • President In my first President’s Message, please allow me to begin by thanking all of you for this tremendous honor. In a relatively short time, The National Trial Lawyers has grown into a vital and influential organization of which we can all be proud. It is an honor to serve as your president this year, and I look forward to working with all of you to continue the organization’s historic growth and to lead it into an even brighter future that will benefit us all. Were you able to attend the 2017 Trial Lawyers Summit? Midwinter in Miami Beach with the top trial lawyers in the country is the place to be. Certainly it was in February as we celebrated the lives and accomplishments of Tommy Malone, Ted Koskoff, Joe Jamail, Morris Dees, F. Lee Bailey and Mark Lanier. Sharing trial techniques with the best litigators in the country is worth its weight in gold. Rocking out with Don Felder of the Eagles at our private concert, compliments of Immediate Past President Tom Girardi, blew the top off the volcano of fun and excitement. Let me also take this opportunity to thank Tom for his service to this organization as its president this past year. For those of you who experienced our annual convention February 5–8, 2017 in Miami Beach, I suspect you, like me, will be signing up at the earliest possible time for next year’s annual convention. For those of you who had the misfortune of missing it, I hope you will give yourself a treat and sign up early for 2018. Just go to ntlsummit.com for more information and to register for next year’s Summit. As all of you know, The National Trial Lawyers is an organization comprised of America’s Top 100 trial 4 x The Trial Lawyer

attorneys. Not just any lawyer can become a member. An invitation of membership is extended exclusively to those select individuals who exhibit the most outstanding leadership skills, maintain an excellent reputation in their respective community and demonstrate an unbridled passion as a trial attorney. I am proud to be a part of this group in striving to hone our area of the profession to its keenest edge. It is also the vision and goal of our organization to provide unique and professional networking opportunities, information and CLE programs, while we continually strive to give our members a competitive edge in today’s ever-changing legal profession. As an elite organization of the best and finest legal minds in America, it is also incumbent upon us to work closely together in the face of ever more challenging opposition not only in the courtroom, but also in government, where the laws we uphold are made. The excellence of the accomplishments of the members of this organization and the great victories they have achieved in courtrooms despite formidable odds remind me of the remarkable spirit the great thoroughbred racehorses evolved

through the centuries. Perhaps no one captured that spirit better than the late singer-songwriter Dan Fogelberg, in the lyrics to his classic 1981 hit Run for the Roses: From sire to sire It’s born in the blood The fire of a mare And the strength of a stud Its breeding and its training And it’s something unknown That drives you And carries you home So it’s run for the roses As fast as you can Your fate is delivered Your moment’s at hand It’s the chance of a lifetime In a lifetime of chance And it’s high time you joined In the dance Lyrics © Sony/ATV Music Publishing LLC Again, thank you all for this opportunity to lead The National Trial Lawyers in the year to come. I am honored, humbled, and heartened to take up the mantle and “saddle up” for the path that lies ahead.


Trial Lawyer



Spring 2017 • Volume V, Number I PUBLISHER Legal Brands, Inc. EDITOR-IN-CHIEF Adair Baine-McDonald EXECUTIVE EDITORS Farron Cousins, Andrew Findley MANAGING EDITOR Brian McDonald SENIOR EDITORS Mike Papantonio, Angela Mason, Keith Givens Harlan Schillinger, Michael Burg, Joe DiNardo CONTRIBUTING WRITERS Breanne Vandermeer Cope, Farron Cousins, Cathy Deloney Corbo, Erin Delaney, Joseph DiNardo, Richard Eskow, Andrew Findley, Thom Hartmann, David K. Lane, Les Leopold, KJ McElrath, William Ourand, Mike Papantonio, Martha Rosenberg, Harlan Schillinger, Mollye Vigodsky, Milette E. Webber 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 ADVERTISING OPERATIONS MANAGER Johnnie Hobbs JHobbs@TheTrialLawyerMagazine.com Office 866-662-2852 • Cell 334-803-9159

The Trial Lawyer magazine is published quarterly by The Trial Lawyer, Inc., 430 West Main Street, Dothan, AL 36301. The Trial Lawyer, Vol. V, No. 1, Spring 2017 (ISSN 2159-7413) © 2017, 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 Trial Lawyer, Inc., 430 West Main Street, Dothan, Alabama 36301. Produced and printed in the U.S.A.

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DOWN TO BUSINESS 12 Why You Can’t Afford To Sit On The Social Media Sidelines Any Longer FROM THE EXPERTS 16 Paid Parental Leave And Benefits: Why It’s Good For Law Firms And Good For Business 22 Legal Implications Of A Deregulated FDA PRODUCT WATCH 26 Takata Update: Plea Deal, Civil Litigation, And Continuing Recalls And Shortages LEGAL BRIEFS 30 Infant Deaths Linked To Essure, Xarelto Trial Halted Early, Homeopathic Teething Products, New Stryker Settlement, Invokana And Amputation Risk, Connection Between Taxotere And Typhlitis, E-Cigarettes And A New Generation MEMBER SPOTLIGHT 85 Kim Dougherty TOP 40 UNDER 40 86 Dustin B. Herman THE TRAVELING TRIAL LAWYER 87 Adam Levitt and Buenos Aires RAISING THE BAR 90 Randy S. Cohn, Antonio M. Romanucci, Stephan Blandin, Frank A. Sommario, Michael T. van der Veen, Barry Strutt, Brian Hurst THE GOOD, THE BAD & THE UGLY 94 The American Civil Liberties Union Justice of the Peace Conrad Hafen Senate Majority Leader Mitch McConnell

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Trump’s War Against Truth Pharma Prepares For Profit Party Under Trump Decades Of Exxon Lies Are Coming Unraveled Big Pharma Has Far More Influence Over Our Lives Than You Can Imagine With Full Government Control, The GOP Tax Scam Is Well Under Way Jeff Sessions — The Incompetent New Sheriff In Town Supreme Court Takes Up Cross-Border Shooting Case Republicans Are Making Millions Off Promises To Repeal The Affordable Care Act Is The Intelligence Community A Greater Threat Than Donald Trump? Forget Constitutional Crisis, This Is A Constitutional Apocalypse Big Pharma Is Profiting Off The Opioid Epidemic That They Created Donald Trump’s Intelligence War 2017 Trial Lawyers Summit


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The National Trial Lawyers would like to congratulate the newest members who have achieved Diplomat status in 2017. We would also like to thank all of our Diplomats for their work in helping promote The National Trial Lawyers in their communities as well as throughout the legal profession. These exceptional attorneys are the finest and most respected among their peers, and we are grateful for their contributions, leadership and inspiration.


The National Trial Lawyers’ Diplomat program recognizes exceptional achievement and offers outstanding rewards to those who qualify. A Diplomat is a Top 100 member that has been licensed to practice law and a member in good standing for no less than ten years in the state of his or her primary residence. He or she must also be a member in good standing of The National Trial Lawyers for their respective state at the time they achieve Diplomat status. Diplomats must also have attended at least three Trial Lawyers Summit conferences within a five-year period. Congratulations to our newest Diplomats! (2017 Diplomats listed in red)

Samuel Adams

Andrew Childers

Phillip Georges

Gloria Allred

John Climaco

Mark Geragos

Law Office of Samuel T. Adams Allred, Maroko & Goldberg

James Amaro

Amaro Law Firm

Lauren Antonino

The Antonino Firm LLC

Kirk Baert

Childers, Schlueter & Smith, LLC Climaco, Wilcox, Peca, Tarantino & Garofoli Co., LPA

Howard Cohen

Gross Shuman Brizdle & Gilfillan, P.C.

Brent Coon

Koskie Minsky LLP

The Law Offices of Brent Coon & Associates

Jose Baez

Joseph Cotchett

Christopher Banys

John Courtney

The Baez Law firm Banys, P.C.

Douglas Beam

Douglas R. Beam P.A.

Andrew Bederman

Greenberg & Bederman, LLC

Thomas Blackburn Blackburn & Green

Lisa Blue

Baron and Blue

Donald Boyajian

Dreyer Boyajian LLP

Marc Brecher

The Cochran Firm PC

Louis Brindisi

Cotchett, Pitre & McCarthy LLP Girardi | Keese

David Craig

Craig, Kelley & Faultless LLC

Fred Cunningham

Domnick Cunningham & Whalen

Morris Dees

The Southern Poverty Law Center

Michael DeMayo

Law Offices of Michael DeMayo, L.L.P.

Jay Deratany

The Deratany Firm

Adam Doner

Gordon & Doner, P.A.

Brindisi, Murad, Brindisi & Pearlman

Kimberly Dougherty

Terry Bryant

Brian Dunn

Terry Bryant Accident & Injury Law

Michael Burg

Burg Simpson Eldredge Hersh & Jardine, P.C.

Peter Burg

Janet, Jenner & Suggs, LLC The Cochran Firm PC

Robert Eglet

Chesnutt, Clemmons & Peacock, P.A.

Troy Giatras

The Giatras Law Firm, PLLC

Tom Girardi

Girardi | Keese

Keith Givens

The Cochran Firm PC

Luvell Glanton

Law Offices of Luvell Glanton PLLC

Nathan Goldberg

Allred, Maroko & Goldberg

James Goldstein

Goldstein & Hayes, P.C.

J D Haas

J D Haas and Associates, PLLC

John Harnishfeger

The Cochran Firm PC

Steven Hart

Hart & Associates, P.C.

David Haynes

The Cochran Firm PC

Scott Heidepriem

Erickson & Oppenheimer, LTD. The Cochran Firm PC Fleming | Nolen | Jez, L.L.P

Wil Florin

Florin | Roebig

Brenda Fulmer

Searcy Denney Scarola Barnhart & Shipley PA

Kerry Jardine

Burg Simpson Eldredge Hersh & Jardine, P.C.

Brian Kabateck

Kabateck Brown Kellner LLP

Holly Kammerer

Burg Simpson Eldredge Hersh & Jardine, P.C.

Julie Kane

Colson Hicks Eidson

Seth Katz

Burg Simpson Eldredge Hersh & Jardine, P.C.

Richard Kellner

Kabateck Brown Kellner LLP

Brian Kent

Laffey, Bucci & Kent, LLP

Robert Komitor

Levy Phillips & Konisberg, LLP

George LaMarca

LaMarca Law Group, P.C.

Jane Lamberti

The Cochran Firm PC

Lambros Lambrou

The Lambrou Law Firm

Joseph Lane

The Cochran Firm PC

Mark Lanier

The Lanier Law Firm

Heidepriem | Purtell | Siegel Lawyers

Matt Leckman

David Hersh

Scott Leeds

Edison Hill

George Fleming

Marcus Chesnutt

Pittman, Germany, Roberts & Welch, L.L.P.

Jon Erickson

Christopher Cassar

Perenich, Caulfield, Avril & Noyes

Robert Germany

Eglet Law

Karen Evans

Bryan Caulfield

Geragos & Geragos

Burg Simpson Eldredge Hersh & Jardine, P.C.

Burg Simpson Eldredge Hersh & Jardine, P.C. The Law Offices of Christopher J. Cassar, P.C.

Gruber Law Offices, LLC

The Law Firm of Hill, Peterson, Carper, Bee & Deitzler, PLLC

Jack Ivey

Ivey Law Firm, P.C.

Walter Jacob

Pogust Braslow & Millrood The Cochran Firm PC

Randal LeNeave

Hunegs, LeNeave & Kvas

Fred Levin

Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A.

Darryl Lewis

Walter C. Jacob, P.C.

Searcy Denney Scarola Barnhart & Shipley PA

Steven Jaffe

Hunter Lundy

Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.

Lundy, Lundy, Soileau & South, LLP

Brian Madden

Jeffrey Phillips

Steven Schwartzapfel

Robert Marcus

Salvatore Pirrotta

Chris Searcy

Wagstaff & Cartmell Marucs & Mack, P.C.

Michael Marinaro

The Phillips Law Group Miller, Johnson, Snell & Cummiskey, P.L.C.

Schwartzapfel Lawyers, P.C. Searcy Denney Scarola Barnhart & Shipley PA

Christopher Placitella

Derek Sells

Jonathan Portner

Cashton Sessler

Hare Wynn Newell & Newton, LLP

Seth Price

Sagi Shaked

Richard Meadow

Mark Proctor

Andre Sherman

Marinaro Law Firm

Angela Mason

The Cochran Firm PC

Don McKenna

Cohen, Placitella & Roth, P.C. Portner & Shure, P.A. Price Benowitz LLP

The Lanier Law Firm

Charles Meltmar

The Cochran Firm PC

Robert Miller

The Cochran Firm PC

Jeffrey Mitchell

The Cochran Firm PC

Cindy Nations

The Nations Law Firm

Howard Nations

The Nations Law Firm

Gregg Neal

Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A.

Shareef Rabaa NY Brain Law

Troy Rafferty

Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A.

Jeffrey Reiff Reiff & Bily

Scott Reisch

Reisch Law Firm LLC

Gary Roberts

Gary Roberts & Associates, P.A.

Neal & Davis, PLLC

Bryan Neiderhiser Marcus & Mack

Richard Newsome Newsome Melton

Eric Romano

Romano Law Group

John Romano

Romano Law Group

Todd Romano

Joseph O’Connor

Romano Law Group

Mainetti Mainetti & O’Connor, P.C.

Thomas Rowsey

Thomas C. Rowsey, Attorneys at Law

Mark O’Mara

O’Mara Law Group

Michael Oppenheimer

Erickson & Oppenheimer, LTD.

Roger Orlando

The ORLANDO Firm, P.C.

Gary Osborne

Law Offices of Gary Osborne & Associates

Karl Pansler

Gregory Rueb Rueb & Motta

Garry Salomon

Davis, Saperstein & Salomon, P.C.

Diana Santa Maria

Law Offices of Diana Santa Maria P.A.

Joseph Sayegh

The Cochran Firm PC Cashton L. Sessler, P.S. Shaked Law Firm, P.A. Girardi | Keese

Hezekiah Sistrunk, Jr. The Cochran Firm PC

Christie Smith, IV

SmithAdvocates, LLC

Stephen Smith

Brain Injury Law Center

James Snell, Jr.

The Law Office of James R. Snell, Jr., LLC

Kelly Spencer

Spencer Law Group

David Standeffer

Standeffer Law, LLC

Patrick Stangl

Peter Wetherall

Wetherall Group, Ltd.

Paul Whitcombe

The Law Office of Paul Whitcombe, Chtd.

Steven Wigrizer

The Cochran Firm PC

James Wilkes, II

Wilkes & McHugh, P.A.

Joe Wolsztyniak

Gary Roberts & Associates, P.A.

James Yavorcik

Cubbon & Associates Co.

Todd Young

Todd Young Law Office

Gabriel Zambrano

John Zydron

The Chávez Law Group

Law Offices of John J. Zarych Swope, Rodante P.A. The Zydron Law Firm P.L.L.C.

Farrest Taylor

The Cochran Firm PC

Willard Techmeier

The Cochran Firm PC

David TeSelle

Burg Simpson Eldredge Hersh & Jardine, P.C.

Victor Vertner

Edwin Schottenstein

Michael Waddington

The Cochran Firm PC

Welebir Tierney & Weck

Lance Swanner

Christopher Schnieders

Schottenstein Law Offices

Douglas Welebir

Elizabeth Zwibel

Janet, Jenner & Suggs, LLC

Bryan Tipp

Jack Paris

Law Office of Cory Weck

Ken Suggs

Paul Schlemmer

The Pardieck Law Firm

Cory Weck

John Zarych

Sevens Legal, APC

Mike Papantonio

Wagstaff & Cartmell

Searcy Denney Scarola Barnhart & Shipley PA

Kerry Steigerwalt

Winston Thompson, III

Roger Pardieck

Calvin Warriner, III

Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.

Goldberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill P.A. The Schlemmer Firm, LLC

Shapiro, Goldman, Babboni, Fernandez & Walsh

Stangl Law Offices, S.C.

The Pansler Law Firm Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A.

Bernard Walsh

The Cochran Firm PC Tipp & Buley, PC Vertner & Vertner

Gonzalez & Waddington, LLC



By Harlan Schillinger

WHY YOU CAN’T AFFORD TO SIT ON THE SOCIAL MEDIA SIDELINES ANY LONGER If social media has the power to sway a presidential election, maybe it’s time you got in the game. In fact, you must get in the game now. Remember how long it took for you to get going with an Internet presence and marketing strategy? 12 x The Trial Lawyer

Most lawyers have sat on the sidelines of social media for far too long. Only early adopters who started leveraging social media like Facebook and Twitter at the outset are ahead of the game, having already spent years building their reputations and communities online. Just like early adopters of Internet marketing. While marketing and social-savvy law firms are certainly ahead, it’s not too late to catch up. That’s the beauty of social media — it’s open to all, 24 hours a day, seven days a week. So why is it worth it for attorneys to have a social media presence? Simple: As a lawyer you are already in the service industry. You work with people, for people, and therefore are intimately tied to clients and community by the nature of your profession. Social media just gives you one more way to nurture those legal marketing intangibles: connecting with community, growing your professional network, communicating your values, demonstrating thought leadership, educating others on the law, growing your tribe of followers and earning trust. It gives you a way to express honest credibility and reputation. It humanizes you! You’ll notice that nowhere in that list did the phrase “making transactions” show up. That’s because the heart of social media will always be social — it’s about people, connections and community. Having a social media presence should never be predicated on making money. Sure, that’s a benefit that certainly occurs, but it’s simply a side effect of marketing via social media. One example of a lawyer who has figured this out is injury attorney Glen Lerner. Facebook is his favorite social medium. Watch the Glen Lerner Gives Back documentary video about feeding 1,360 families Thanksgiving dinner on Chicago’s South Side and you’ll get whole point of social media.

The story is told entirely from the viewpoint of the community outreach coordinator who took Lerner’s idea and ran with it. Lerner was simply the catalyst, but his heartfelt contribution continues to echo in the local community — and beyond. Posts like these are never transactional; they’re personal. Social media strategy is not designed exclusively to get more clients or drive more traffic to the website — even though that happens — but rather to build credibility. Social media feeds can work in many ways to build your reputation. A variety of different post styles can, for example: • Share local history and stories • Connect to people and companies you admire • Inform about events or causes you care about and participate in • Showcase a new TV commercial or take a fresh spin on an existing advertising campaign • Convey critical news stories that relate to your practice • Give helpful tips to your clients and followers, and • Humanize you and make you more approachable When you already have so much skin in the game, there’s no reason to sit on the sidelines. Take social media for what it is — personal, not transactional. Then jump right in. Your social activity will make people think, act, laugh and, ultimately, remember you. In today’s marketing world it is a necessary tool — and a must in your advertising and marketing strategies. Learn now how to grasp, use and facilitate social media. Just think about where you would be now if you took hold of your Internet marketing 15 years ago. It’s always better to be out front rather than playing catch up. Don’t you agree?

The Trial Lawyer x 13



america’s most influential trial lawyers

tHe rounDtaBle 2016

The Trial Lawyer magazine recognizes these distinguished lawyers as 2016 members of The RoundTable: America’s 50 Most Influential Trial Lawyers. Members of The RoundTable are among the top 50 U.S. civil plaintiff and criminal defense lawyers. Each year, The Trial Lawyer magazine identifies a select group of remarkable trial lawyers who have met the challenges of our legal profession and achieved extraordinary success in the courtroom. Nominations are accepted from our readership, and each lawyer is evaluated for their professional achievements, trial results, and ability to affect change in the legal community. The Trial Lawyer magazine is proud to recognize the 2016 members of The RoundTable: America’s 50 Most Influential Trial Lawyers. Gloria Allred

Keith Givens

Joe Rice

Richard Arsenault

Ed Hill

John Romano

Jose Baez

Rob Jenner

Chris Searcy

Dawn Barrios

Richard Kellner

Chris Seeger

Jere Beasley

Robert Kennedy, Jr.

Hez Sistrunk, Jr.

Roy Black

Rayna Kessler

Steven Skikos

Lisa Blue

Karen Koehler

Aimee Wagstaff

Ben Brafman

W. Mark Lanier

Perry Weitz

Michael Burg

Zoe Littlepage

Steven Yerrid

Jim Butler

Ramon Lopez

Elizabeth Zwibel

Elizabeth Cabraser

Hunter Lundy

Joe Cotchett

Tom Mesereau

Morris Dees

Ben Morelli

Tom Demetrio

Billy Murphy

Robert Eglet

Howard Nations

Mike Eidson

Leigh O’Dell

George Fleming

Mark O’Mara

Willie Gary

Brian Panish

Mark Geragos

Mike Papantonio

Tom Girardi

Michelle Parfitt

14 x The Trial Lawyer



america’s most influential law firms

tHe forum 2016

Each year, The Trial Lawyer magazine seeks to identify U.S. law firms which have shaped the legal profession through leadership, innovation, and success in the practice of civil plaintiff law. Nominations are accepted from our readership and each law firm is evaluated for their professional achievements, trial results and effective impact in the legal community. As a result, The Trial Lawyer magazine is proud to recognize these influential U.S. civil plaintiff law firms as 2016 members of The Forum: America’s 25 Most Influential Law Firms. Allred, Maroko & Goldberg

Neblett, Beard & Arsenault

Baron & Budd, P.C.

Panish Shea & Boyle LLP

Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

Robinson Calcagnie, Inc.

Burg Simpson Eldredge Hersh & Jardine, P.C.

Romano Law Group

Butler Wooten Cheeley & Peak LLP

Searcy Denney Scarola Barnhart & Shipley PA

The Cochran Firm P.C.

Seeger Weiss LLP

Cohen Milstein Sellers & Toll PLLC

Simmons Hanly Conroy LLC

Cohen, Placitella & Roth, P.C.

Weitz & Luxenberg P.C.

Cotchett, Pitre & McCarthy, LLP

Williams Kherkher

Girardi | Keese Janet, Jenner & Suggs, LLC The Lanier Law Firm Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A. Lieff Cabraser Heimann & Bernstein, LLP Motley Rice LLC The Nations Law Firm

The Trial Lawyer x 15


By Breanne Vandermeer Cope


Why It’s Good For Law Firms And Good For Business The United States is late to the game when it comes to paid maternity leave. It is the only Organisation for Economic Co-operation and Development (OECD) member state to not offer statutory entitlement to paid leave on a national basis. This despite the fact that both the International Labor Organization convention and current European Union directive on maternity leave stipulate that mothers should have access to at least 14 weeks of maternity leave. A few states have filled the gap. Rhode Island, Hawaii, New Jersey, New York, and California have instituted Temporary or Short-term Disability Insurance schemes for maternity leave. However, this means that currently the overwhelming majority of American child bearing women depend on 16 x The Trial Lawyer

their employers for access to paid leave leading up to and following the birth of a child. The foremost arguments against instituting paid leave policies include cost to employers, abuse of policies by employees, and negative effects on productivity. But is it possible that offering paid maternity leave policies can be good for a firm’s bottom line? Recent research proves that this is indeed the case. Why Paid Maternity Leave Matters The benefits of maternity leave are undisputed. It allows mothers time to bond with their newborn babies, recover from childbirth, and contributes to higher rates of vaccinations and better postnatal care. It is also linked to increased birth weights, decreased premature births, and decreased infant mortality. (This research also demonstrates that paid paternity leave has long-term benefits for the health of children.) For mothers who choose and are able to breastfeed, maternity leave also increases the rate and duration of breastfeeding for infants, the importance of which cannot be overstated. Maternity leave that provides for job security also has a positive impact on the continuity of women’s employment and career continuity. Paid maternity leave, and the higher the pay, yields even greater continuity. Why Law Firms Should Care There are many reasons law firms should invest in judicious paid leave maternity policies for their employees. The number of women in the legal profession has steadily increased in the last 40 years. Additionally, women now make up the majority of law students at accredited law schools. The percentage of women joining law firms will continue to increase and consequently so too will the number of female attorneys choosing to have children. Furthermore, per the Bureau of Labor and Statistics, as of February 2016, women account for 85.4% percent of paralegals and legal assistants. Implications of paid leave go beyond

childbearing. Parents of children with special health care needs also require some level of leave from work to meet their child’s needs. For three in ten families with children with special health care needs, at least one parent had to cut back on work to accommodate their child’s care needs. The number of Americans who must act as caregivers in some capacity is also increasing. This is especially true for middle-aged workers who find themselves “sandwiched” between the costs and responsibilities of raising their own children and supporting an aging generation of parents. The Pew Research Center found that “[n]early half (47%) of adults in their 40s and 50s have a parent age 65 or older and are either raising a young child or financially supporting a grown child (age 18 or older). And about one-in-seven middle-aged adults (15%) is providing financial support to both an aging parent and a child.” A June 2015 report by the National Alliance for Caregiving reported that in the United States, 43.5 million adults provided unpaid care to an adult or child in the prior 12 months. Sixty percent of caregivers were female, but 40 percent are male. It is not a matter of if a firm’s employees will require additional time to care for a family member, but when. Employees will necessarily seek out employment that allows them to meet these growing caregiving obligations. Competition is steep from in-house and Biglaw settings which have continued to expand their paid leave and benefit offerings for new mothers (and fathers). Firms that already have some combination of paid family leave will have a leg up on retaining and supporting their most valued employees. Why Paid Parental Leave And Benefits Reduce Costs And Increase Productivity Cost is a frequently cited concern for firms considering paid maternity leave or increasing the length of their existing paid leave policies. There is a much steeper cost, however, to not providing a significant amount of paid maternity

leave. Paid leave increases the rate at which women return to their jobs after having children, reducing costly employee turnover. Not providing significant paid leave is also associated with lower employee engagement, morale and productivity. All of these negatively affect a firm’s bottom line. The estimated total cost of losing a single employee ranges from 30 percent of yearly salary for hourly employees to up to 150 percent of salary. Costs associated with employee turnover in a law firm setting can be even higher than in other industries. A case study involving four national firms in Canada put the price tag for replacing a junior associate at just over $260,000 or twice the associate’s salary. “Investment Costs,” including training, recruiting, MCLE/ bar fees, and mentoring time made up over 77% of this number. This number also does not account for the intangible costs of when a valued attorney or staff member walks out the door — lower morale, loss of intellectual capital and talent, long-term financial loss of a strong performer, and the loss of referral sources are just a few examples. Paid maternity leave greatly increases retention and reduces costly turnover. The Rutgers Center for Women and Work found that new mothers “with paid leave were 93% more likely to be working at postpartum months nine to 12 than those who did not take any leave.” Additionally, a 2011 U.S. Census report found that, “Women who had some type of paid leave have greater odds of returning to work within three to five months following the birth of their first child, compared with mothers who did not receive or use paid leave.” This is not just true of lower income workers. Google, for example, saw a decrease of 50% in the rate at which new moms left the company after increasing paid maternity leave from 12 weeks to 18. Increased employee engagement is also critically important to the bottom line. Employee engagement is not employee happiness; it is the intellectual and emotional commitment that an employee has to your firm and its goals. When employees are engaged, they use discretionary effort to help the firm The Trial Lawyer x 17

obtain its goals. They stay late without being asked, wash the dirty dish in the breakroom, find the extra few cases to support an argument, or show up early to make sure the PowerPoint presentation is working. They also don’t take the recruiter’s call offering a job with an increase in pay. They are dedicated to their employers and willing to go above and beyond to make sure their firms succeed. Employers with higher employee engagement also report much lower employee turnover and much higher cash flow return than companies with lower employee engagement scores. Research from Towers Perrin reported that companies with engaged workers have 6% higher net profit margins. Research that looked at “engaged” publicly traded firms showed five times higher shareholder returns over five years. Substantial paid leave policies generate employee engagement. When new mothers have substantial time to care for their newborns, they return to work more energized and ready to engage in their work. When employees feel supported by their firm they become more attached to the firm’s mission and objectives and work harder as a result. Research has found no evidence of negative impacts of paid leave on productivity and demonstrates substantial benefits for employers. This includes small and medium sized firms. Research from state programs providing paid family and medical leave insurance without an employer mandate also bears this out. After California and New Jersey enacted Paid Family Leave benefits, most businesses reported positive or neutral experiences and few negative effects. 18 x The Trial Lawyer

Alternatively, when employees do not have access to or take less than fully paid leave, they report negative impacts on their own health, including stress, concern about work performance, and financial stress. Additional stresses for new mothers include severe sleep deprivation, worry and concern for their vulnerable new offspring while they are away at work, and financial stresses of paying for childcare. These stresses do not allow them to be engaged at work and only continue when employers do not support their needs as new parents. “Parents who could take fully paid leave not only were more likely to report positive effects of leave on their children, but they also reported an increased benefit to their own emotional health and decreased likelihood of financial problems.” More Than Just Paid Leave Firms that want to do more than just provide paid leave have a plethora of options. Some firms, for example, contract with vendors that provide parenting advice services, including behavior, development, nutrition and sleep to preparing a child for a new sibling. A new parent can spend hours hunting down expert advice regarding a developmental or health concern regarding their child — time that could be spent elsewhere. Other benefits may include lactation support, on-site daycare, subsidized backup childcare, transition coaching, Dependent Care Flexible Spending Accounts, and an automatic reduced-hours schedule for a set amount of time following maternity

leave, also known as flex-time schedules. Many firms worry about accommodating flex-time schedules but creative solutions can be found. Some firms true up each attorney’s compensation or bonus with annual billable hours, so that lawyers are paid for the schedule they actually work. Other firms offer different forms of leave (e.g., sabbaticals) which are available to every employee. This normalizes longer absences of key employees, which in turn makes any absence, including maternity leave, more routine and easier to handle. Inevitably, this also allows more junior attorneys and staff opportunities to excel and gain critically important experience solving problems and interacting with clients. For firms that do not have the bandwidth for such programs firm wide, they can still foster a more collaborative work environment where teams work together and attorneys can comfortably trust their cases to their colleagues. Creating a workshare where attorneys share responsibility for a case or client can also lead to additional benefits. Employees can share in the responsibilities allowing for a certain amount of flex-time, but there is always someone available should an emergency or deadline require. Allowing flexible schedules to meet the care needs of children can also lead to new relationships and business opportunities further benefitting law firms. For example, allowing employees to serve on the board of their children’s schools, coach little league, or chaperone school trips allows employees to engage with a whole new set of potential clients, referral sources and networking opportunities. Numerous studies have shown how critical the early childhood period is to making sure children have the opportunity to succeed. Success as a mother and success as an attorney are not mutually exclusive. The above evidence demonstrates that law firms with paid leave policies not only help support new mothers but also add to the firm’s bottom line and go far in advancing its long-term business goals.

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By Joseph DiNardo, Esq. & Erin Delaney, Esq.

LEGAL IMPLICATIONS OF A DEREGULATED FDA There is much uncertainty throughout the pharmaceutical industry as a new U.S. Food and Drug Administration (FDA) Commissioner is chosen and steps are taken to deregulate government agencies. President Donald Trump has stated one of his goals is to speed up the drug approval process in order to lower drug prices, promote competition, benefit small start-ups and bring innovative new treatments to market faster. However, many industry leaders are concerned that dramatically speeding up the current approval process could put patients at risk. This, in turn, could subject manufacturers to costly litigations. 22 x The Trial Lawyer

The high cost of obtaining approval for a new drug, estimated at $2.6 billion, has been blamed for hindering pharmaceutical start-ups from entering the market. As a result, certain pharmaceutical executives, like the CEO of Pfizer Inc., have publicly favored deregulation, claiming it will help create more competition and lower drug prices. Others in the pharmaceutical industry disagree, opining that current FDA rules and regulations provide a level playing field for both small and large companies. Lowering the bar for drug approvals, they contend, would allow the wealthiest pharmaceutical companies to inundate the market with countless new drugs

and associated advertising, eclipsing any potential advances of smaller companies. President Trump, who has stated that 75% to 80% of all governmental regulations are unnecessary, issued an executive order on January 30, 2017 aimed at significantly reducing them. The order requires all executive government agencies identify at least two regulations to be repealed for each newly-proposed regulation. While not immune to the executive order, the FDA, which regulates food, drugs, medical devices, blood donations, vaccines, biologic products, animal and veterinary products, cosmetics and tobacco products, may not be markedly

affected by it. Many FDA regulations deal with process and merely codify or interpret the law. Accordingly, even if certain agency regulations were repealed, congressional mandates, including statutory safety and efficacy standards under the Food, Drug and Cosmetic Act (FDCA), would not change. Further, a number of regulations are no longer applicable and could be repealed without consequence. Arguably, some existing regulations could even increase protection and transparency for the public if rescinded. It is not the executive order that has the industry buzzing, however, but rather the potential actions of the new FDA commissioner under the Trump administration, who is likely to share the President’s goal of streamlining the FDA’s drug approval process to decrease the amount of time it takes for new drugs and medical devices to get to market. In an attempt to restructure and quicken the process, the commissioner may choose to institute various levels of approvals, focusing on biomarkers and short-term surrogate endpoints. Although legislation is in place that requires substantial evidence of a drug’s efficacy prior to it being sold in the marketplace, some suggest if the new commissioner were so inclined, the commissioner need only to interpret existing regulations loosely to weaken the efficacy standard. Under the current system, it takes a new drug, on average, 12 years to make it from a research lab to the patient. The FDA’s role is minimal throughout the preclinical research stage, which can take one to six years, but increases if the drug is successful and the FDA approves the commencement of human trials. Phase one allows researchers to test the drug for the first time in a small group of healthy volunteers, identifying side effects and basic product characteristics, adjusting dosages and evaluating safety. Phase two involves evaluating efficacy and short-term side effects for different dosages within a larger randomized or controlled group of people, often measuring biomarkers or laboratory results rather than clinical outcomes. Phase three, a large clinical trial, uses a

group of people more similar to those to whom the product would be marketed to determine a risk/benefit ratio. Each phase takes about one to two-and-a-half years. Ninety percent of the drugs and biologics that proceed through clinical trials fail, whether it’s due to safety or efficacy. If a drug completes phase three of the trials, the manufacturer will file a New Drug Application with the FDA, getting a response, on average, in about 12 months for standard review and eight months for priority review. Nevertheless, according to 2016 data, the majority of new drugs are approved through an expedited approval process. The approval process has also already been shortened for certain drugs and medical devices by the 21st Century Cures Act, which was signed by President Barack Obama last year. Some experts argue that safety and efficacy go hand-in-hand; side effects that would never be approved for an over-the-counter drug may be approved for a drug that treats a life-threatening illness if it were proven to be an effective treatment. The type, nature, length and size of clinical trials are already becoming increasingly flexible, allowing deviations from the typical structure on a case-by-case basis in consideration of factors such as whether the condition is widespread, rare, chronic, short-term or life-threatening, the frequency of the symptoms, and the toxicity of the drug on test subjects. For instance, the FDA may approve orphan drugs, which treat diseases that typically affect less than 200,000 people, based on only one positive clinical trial and/or on surrogate endpoints, while mass-market drugs typically require two to three trials to prove safety and efficacy. In doing so, the FDA provides patients access to a drug, often where there was a previously unmet medical need, while the company continues to study its clinical benefits. Even so, the FDA maintains that “a randomized, controlled, clinical trial… of a size and duration that reflect the product and target condition remains the gold standard for determining whether there is an acceptable benefit/ risk profile for drugs and biologics.”

A neurologist at the Mayo Clinic told Business Insider he commends the idea of speeding up the development of new treatments, but worries that in doing so patients could be exposed to “costly, ineffective and potentially dangerous drugs.” Likewise, the CEO of Ovid Therapeutics Inc., a pharmaceutical company that develops drugs for rare diseases, told Reuters, “any change at the FDA that allows drugs to be tried out on patients without clinical evidence is a damaging approach.” In a January 2017 FDA evaluation of 22 case studies with divergent results, early clinical studies were promising. Should the commissioner decide to base approval on initial safety reports or on surrogate endpoints, these drugs could have been approved. However, “[p]hase 3 studies did not confirm phase 2 findings of effectiveness in 14 cases, safety in 1 case, and both safety and effectiveness in 7 cases… In two cases, the phase 3 studies showed that the experimental product increased the frequency of the problem it intended to prevent.” The side effects of these drugs in phase three trials ranged from mere uselessness to serious adverse events, including death. Further, removing the requirement of extensive clinical testing could mean that courts will see more lawsuits and multidistrict litigations similar to those currently filed against 3M involving its Bair Hugger Forced Air Warming device. In that litigation, it is alleged that the company knew of the threat of contaminants due to the device, and the risk of infection, but failed to warn of the risk. The plaintiffs further allege that 3M continued to market its product as safe for use during surgeries and attempted to “conceal and discredit peer-reviewed scientific studies that undermined their ability to market the Bair Hugger.” Notably, the FDA approved the Bair Hugger device for use in 1987 under Section 510(k) of the FDCA, which is an expedited process that allows for less clinical testing if a substantially similar device is already on the market. It is also unclear how rules and regulations that promote a quicker The Trial Lawyer x 23

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approval process will affect the doctrine of federal preemption. Just like Bayer Corp. has done with some success in suits alleging injuries sustained from the implantation of Essure Permanent Birth Control, a manufacturer’s defense often rests on the fact that the FDA approved the drug or device’s design, manufacturing method, labels, warnings and instructions for use prior to its release into the market. This defense has held up in the past, especially for devices approved in the premarket approval process, based on the FDCA’s statutory requirements for safety and effectiveness, with defendants arguing the FDA subjected their product to the “highest level of scrutiny that exists in the federal regulatory system.” If the statutory requirements for a new drug’s approval are weakened, this defense may prove futile for pharmaceutical companies in future litigations to the advantage of plaintiffs. Congruently, there are currently 40 multidistrict litigations pending with the Judicial Panel on Multidistrict Litigation in which plaintiffs allege the defendants engaged in false and misleading marketing and sales practices, including those for Vioxx, Tylenol, Celexa, Lipitor, Avandia and Plavix, to name a few. Allowing a pharmaceutical company to advertise a drug for potentially ineffective uses without proper testing could open the floodgates of similar litigation should the drug fail to work, or worse, cause fatalities, while costing patients hundreds of thousands of dollars per year. For example, Sarepta Therapeutic’s orphan drug, Exondys 51, which the FDA approved for use in September 2016 based on surrogate endpoints, runs patients approximately $300,000 per year with little to no insurance coverage, but it has not yet been proven effective. Industry heads such as the CEO of Alnylam Pharma and the head of research and development at Merck and Co Inc. have also expressed concern about how a manufacturer must be able to show insurers and physicians alike through a risk/benefit profile that their drug has value, rather than leaving them to make such a determination on their own. Further, even if deregulation lowers costs to pharmaceutical companies, there have been no assurances that these reduced costs will be passed on to patients. A first-to-market advantage will not do pharmaceutical companies much good if the product is too expensive for patients to afford and insurance companies are not willing to cover the cost. If current pre-market clinical requirements are reduced, it could arguably endanger patients, who are often the most vulnerable. It may also make it more difficult for pharmaceutical companies to differentiate effective products from new, less effective — or ineffective — treatments flooding an easy-to-enter market. On the other hand, greater flexibility could allow for innovative new products to enter the market faster and reach those waiting on new therapies or a cure. Until the right balance has been struck, the industry may be in for a bumpy, litigation-filled ride. Citations available on request

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PLEA DEAL, CIVIL LITIGATION, AND CONTINUING RECALLS AND SHORTAGES By Milette E. Webber, Esq. and William C. Ourand, Esq. • Newsome Melton, P.A. 2017 has already been a busy year in the realm of the Takata litigation, as January started out with a bombshell announcement that the automotive component part manufacturer had agreed to a plea agreement with the United States Department of Justice (DOJ). Unfortunately, that agreement turned out to be horrible for consumers, as it essentially paves the way for Takata to restructure itself and bankrupt its American 26 x The Trial Lawyer

subsidiary, while only requiring the company to set aside a small fraction of the $1 billion Restitution Fund for the true victims of the airbag defect — the injured consumers and their families. At the same time, civil litigation and discovery have slowly continued in cases involving catastrophic injuries and in the economic loss class actions, prompting Judge Federico Moreno to order the parties to submit proposed

schedules in an effort to get the cases moving faster than their present paces. Finally, the recall itself has continued to drag out, with low recall completion rates, new vehicles being manufactured and sold with defective airbags, and many consumers being denied repairs due to replacement part shortages. This article will summarize and analyze the key recent events in the Takata airbag debacle.

The Takata-DOJ Plea Agreement On January 13, 2017, Takata Corporation and the DOJ entered into a Rule 11 Plea Agreement. As part of this plea agreement, Takata agreed to plead guilty to one count of wire fraud. The basis for this wire fraud claim is Takata’s admission that it falsified test data and reports about its “phasestabilized ammonium nitrate” airbag inflators, otherwise known as “PSAN” inflators. Takata further agreed to pay a $25,000,000 criminal fine to the United States and set up a $975,000,000 “Restitution Fund” for the “victims” of its fraud scheme. While the amount of this “Restitution Fund” seems significant, only $125,000,000 was allocated “to recompense individuals who suffered (or will suffer) personal injury” because of a defective PSAN inflator. The lion share — $850,000,000 — was instead earmarked for automakers, including Honda, who were described as “victims of Takata’s fraud scheme.” The court will appoint a Special Master to establish, oversee, and administer both funds. This Special Master will be tasked with making findings of fact and recommendations to the court regarding entitlement to restitution and amounts to be paid. Not surprisingly the parties recommended Kenneth Feinberg as the Special Master. Kenneth Feinberg has been the industry’s “go to” compensation system manager, administering compensation funds for the victims of the 9/11 disaster, the BP oil spill, Sandy Hook, the Virginia Tech shootings, the Boston Marathon bombing, and the GM ignition switch litigation to name a few. Like other litigation related compensation funds, the Special Master will have the authority to develop a formula to determine the distribution of monies from the Individual Restitution Fund based on the type and amount of each claimant’s loss. While there are no caps on the individual injury claims in this fund, there is a limitation regarding the length of time the Individual Restitution Fund will be available to pay claims. Indeed, upon the later of

either five years after the entry of the plea (which is the time currently estimated by Takata for the recall of its defective inflators) or the date upon which the recall is complete, any funds remaining in the restitution monies shall be paid to the United States. The Takata-DOJ Plea Agreement Fails To Protect Consumers At the time of this writing, media reports suggest that TK Holdings, Inc., Takata’s U.S. subsidiary, may go bankrupt, while Takata Corporation, the Japanese parent company, will more than likely be bought out by a rival auto part supplier and restructured. According to some commentators, the plea deal “removed a major obstacle to [Takata]’s potential sale or restructuring.” Given the serious concerns over Takata’s future, the $125,000,000 set aside for injured consumers is nowhere near sufficient. Takata airbag cases often involve severe, catastrophic injuries, such as permanent disfigurement, impairment, blindness, and even death. Moreover, the whistleblower statements, the intentional nature of the cover-up on not only Takata’s but the auto manufacturers’ parts, and other discoverable evidence supports a very strong claim for punitive damages. As a result, it is entirely possible that the relatively tiny portion of the Restitution Fund earmarked for injured consumers will wind up being too small to even cover just the first jury verdict awarded in a Takata injury or wrongful death case. And there is a very real possibility that multiple large verdicts will be rendered, as the Takata airbag defect has already been linked to at least 16 deaths and 180 injuries. These numbers will, tragically, only increase as the recall completion rates dwindle and more vehicles continue to be recalled over the next several years. Moreover, the plea agreement goes much too far in attempting to characterize the automakers as “victims.” Incredibly, the agreement states that, had the automakers “been provided with true and accurate test information and data,” they “either would have: (a) insisted that

any problems with the PSAN inflators be resolved prior to installation into their vehicles; or (b) refused to put the airbag systems containing the faulty or problematic PSAN inflators into their vehicles.” The evidence produced to date reveals the fallacy of such statements for certain auto manufacturers. The potential prejudicial effect of these statements was somewhat mollified during the Plea and Sentencing Hearing by Takata’s attorney, Andrew Leavander, who indicated that the plea agreement does not negate any civil claims against the automakers: As regards to the statements about the OEMs, the plea agreement is binding on Takata, its agents and subsidiaries and the Government. It is not binding on plaintiffs. It is not binding on OEMs … that’s certainly not the point of this plea agreement to bind anybody with regard to claims and defenses of the parties not here before the Court. Moreover, by Mr. Levander’s own admission, the plea agreement does not preclude a claimant from suing Takata in a separate action, nor does it technically preclude a party from taking depositions of Takata Corp. employees. Indeed, in the February 27, 2017 Plea and Sentencing Hearing, Mr. Levander, advised the court as follows: This plea agreement does not preclude the plaintiffs from suing Takata, TKH, seeking depositions under the treaty, doing whatever they think is in their client’s best interest. It may be that a client will decide down the road that getting money certain out of a fund is better than chasing Takata. That’s a decision that plaintiffs will make down the road. But with regard to this plea agreement, it gives TKH no protection from civil cases. The Trial Lawyer x 27

Finally, with regards to the characterization of the automakers as victims, the court made sure to advise that this depiction does not preclude such entities from being a culpable party. Rather, the automakers are “victims” solely as it pertains to the criminal investigation. The court found in pertinent part: And as to the characterization of the OEM’s as victims, there’s nothing to suggest that an OEM can’t be a victim and a culpable party at the same time in a different level, perhaps. But it’s certainly true in life and in this case that the OEMs can serve more than one role. The MDL The Takata Multi-District Litigation (“MDL”), which has now been pending for more than two years before Judge Moreno of the United States District Court for the Southern District of Florida, is still in the discovery phase of litigation. The MDL includes all economic loss class actions and personal injury and wrongful death cases involving Takata ammonium nitrate airbags pending in federal court throughout the country. So far, neither the economic loss class actions nor any of the personal injury cases have been set for trial. The parties are presently at odds with respect to upcoming deadlines. In the wake of the recent plea agreement, the automaker defendants have requested that discovery be closed in October 2017, and that the economic loss claims be tried in June 2018. They made no recommendations as to the trial dates for the personal injury and wrongful death cases. The plaintiffs oppose the Fall 2017 discovery cutoff, stating that it would “severely prejudice Plaintiffs by not providing sufficient time to complete discovery, and will unfairly reward Defendants for delaying discovery.” Moreover, the plaintiffs have suggested that a personal injury or wrongful death case be tried before the economic loss claims. While a potential mid 2018 trial date was suggested, the 28 x The Trial Lawyer

plaintiffs are mindful of the discovery tactics involved and therefore, have also proposed that the court hold monthly status conferences, and then “assess how much additional time is needed to complete fact discovery” in fall 2017. The parties are awaiting an order from Judge Moreno to determine the path forward for concluding discovery and trying cases. In their most recent status report, several automakers asserted that “Takata’s guilty plea significantly undermines Plaintiffs’ claims against the Automotive Defendants in the economic class action.” The plaintiffs vehemently denied the Automotive Defendants’ assertions, arguing that Takata’s admission of guilt does not excuse “the Automotive Defendants’ own reckless, deceptive conduct… “ The plaintiffs further argued that, “for them to call themselves victims insults the real victims here — hundreds of people who have been seriously injured or killed by a device that was supposed to protect them, and tens of millions of vehicle owners who have been forced to bear the risk of such injury and incurred substantial economic damages….” For its part, Takata contends that the plea deal “should have a limited (if any) impact on resolution of the economic loss claims at issue in [the] MDL, including the Court’s rulings on Takata’s pending motion to dismiss.” The Takata Recalls Continue As Dealers Still Lack Replacement Parts The Takata recall is officially the largest recall in United States history, and is continuing to expand. A recent government estimate projected that the recall will “eventually include about 42 million U.S. vehicles and between 64 million and 69 million air bag inflators in the United States.” The sheer size of the recall has also brought about other complications and additional dangers for consumers. Indeed, well into 2016, certain auto manufacturers were not only knowingly placing defective air bag inflators in their new vehicles but were unable to obtain sufficient replacement parts to ensure needed repairs for

consumers. As a result, consumers continue to be left on waiting lists with some commentators projecting that the recalls may not be finished until 2023. Even Takata itself has estimated that the recall will take another five years to complete. In response to the replacement part shortage issue, the National Highway Traffic Safety Administration (“NHTSA”) has taken the unprecedented step of ordering a series of “priority levels” to incrementally repair and replace defective Takata inflators through the year 2019. The different priority levels were set according to what NHTSA perceives to be the biggest risk factors for inflator ruptures — the vehicle’s age and exposure to humidity. However, a study conducted by The Safety Institute revealed that NHTSA “received 155 complaints from consumers with vehicles registered in hot and humid states, who attempted to have their recalled driver and passenger-side airbags repaired, only to be turned away by dealers for lack of parts” during the very first priority level phase. In the meantime, Takata airbags continue to pose a severe danger to consumers who are unable to complete the recall procedures due to part shortages. And some individuals have even reported that they are unable to trade their vehicles in due to the depreciation in value caused by the defect.



Conclusion The Takata airbag debacle will continue to spiral out of control into 2017 and for several years to come. Both NHTSA and the DOJ have already failed to sufficiently protect consumers. As such, it will be up to civil justice attorneys to pursue meaningful cases through trial so that juries can determine whether the injured consumers, or the auto manufacturers, are the true victims of the Takata airbag debacle.

















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Number Of Fetal Deaths Due To Essure Device Are Far Greater Than Reported Figures from the FDA state that cases of infant death linked to Essure are quite rare. As of December 2015, there were 18 reports of miscarriages, and only four incidents of infants who died after a live birth. However, it appears that the FDA’s figures are short — by almost 300. Last year, Representative Mike Fitzpatrick (R-PA), who is pushing for legislation that would ban Essure, presented new evidence gathered and analyzed by a private consulting firm, Device Events. The information was based on a study and analysis of more than 10,000 adverse reports on Essure filed with the FDA and stored in the agency’s Manufacturer And User facility Device Experience (MAUDE) database. The analysis revealed that a large number of reports that had been identified as injuries or malfunctions included information about miscarriages and fetal deaths as well. Fitzpatrick said, “It’s pretty clear that FDA either has data they’re not paying attention to or they’ve got defective systems in place to analyze the data.” His proposed legislation, called “Ariel Grace’s Law,” for Essure user Kristiana Burrell’s daughter who died only five days after birth, would require the manufacturer, Bayer, to remove Essure from the market. Fitzpatrick is also calling on the FDA to consider the Device Events analysis as it evaluates Essure safety.

By Ring of Fire & Drug Safety News

Bayer is denying all allegations of fetal deaths related to Essure. In a response, a company spokesperson said that the results of the analysis were “not true,” calling it “irresponsible to suggest that Essure causes fetal deaths when, after an unsuccessful Essure procedure, an undesired pregnancy cannot be carried to term.” Bayer is also concerned that news about fetal deaths could be causing unnecessary worry and fear, leading women who have the Essure device to have it removed — and discouraging new patients from getting the device who might otherwise have considered it. The company continues to insist that “the safety and efficacy of Essure…is supported by more than a decade of science, as well as real world clinical experience, with the product studied with more than 10,000 women.” Tens of thousands more women who have suffered from severe, chronic pain, heavy bleeding, symptoms of nickel poisoning and miscarriages from unexpected pregnancies disagree.

Bayer And Janssen Call Off Clinical Trial For Xarelto The most recent clinical study of Xarelto (rivaroxaban) has been halted more than a year early, because Bayer AG, the drug’s original developer and sponsor of the trial, is satisfied with the results. That study, known as “Rivaroxaban for the Prevention of Major Cardiovascular Events in Coronary or Peripheral Artery

Disease,” or COMPASS, was originally going to continue until March of 2018. However, Phase 3, which studied the efficacy of Xarelto in the treatment of patients at risk for serious coronary events or peripheral arterial disease, has met its primary endpoint ahead of schedule. According to a press release from Bayer, the drug’s effectiveness in preventing coronary artery disease (CAD) and peripheral artery disease (PAD) has been confirmed and the study has been halted on a recommendation from an independent data monitoring committee (DMC). The purpose of such a committee is to determine whether or not the experimental part of a study should be continued or terminated, based on an analysis of risks vs. benefits. In order to stop a research study early, the statistics must clearly show that the benefits to patients outweigh the risks — even if those risks are serious ones. Although it has been established that Xarelto can put patients at risk for uncontrolled and potentially fatal hemorrhaging, the DMC in this case has determined that the benefits to patients are greater than the risk of bleeding. Today, over ten million people in the U.S. suffer peripheral artery disease, which can be an indicator of coronary artery disease as well. The condition may affect as many as one out of five adults over age 55 throughout the world. Early approval of Xarelto for the treatment of PAD would mean additional revenue for Bayer, which has been aggressively trying to expand the market for its product. Xarelto brought in approximately $2.25 billion in revenue during the first three quarters of 2016 — an increase of 30% over the year before. Based on the recent success of the Phase 3 trial, Bayer is estimating that global Xarelto revenues could grow to $5.3 billion.

illness and tissue necrosis. Stryker’s newer product, the LFIT cobaltchromium V40 Head, has reportedly been having the same problems. Those devices were taken off the market in August of 2016 after Stryker had received numerous adverse event reports. FDA Issues Warning About Homeopathic Teething Products: “Throw Them Away”

Stryker Reaches New Settlement Agreement In Wake Of Falling Revenues

The FDA has warned parents not to use homeopathic teething “remedies” and to dispose of such products if they have them. The reason: they contain high levels of belladonna, more commonly known as deadly nightshade. Products such as Hyland’s Homeopathic Teething Gel and tablets have been used by well-meaning parents to ease their infants’ teething pain. What they haven’t realized is that the active ingredient is highly toxic — and that the product contains far more of it than is indicated on the label. In adults, belladonna can have a hallucinogenic effect, but can also cause elevated heartbeat, blurred vision, delirium and even convulsions. In young children, however, even the smallest amount (equivalent to two berries) can be fatal. Last year, the FDA found that use of Hyland’s Teething Tablets were involved in the deaths of ten young children and severe reactions in 400 others. In response, Hyland’s no longer distributes the product, but has stopped short of issuing a recall. The company says it “remains confident in the safety of our products and has not been presented any data or information that contradicts the data we have.” Retail outlets such as CVS and Walgreens have removed the product from their shelves — but since there has been no recall, parents who purchased the product prior to last October may still have it, not being fully aware of the dangers.

More than two years after an offer to pay $1.4 billion to patients to settle lawsuits over defective hip replacements (for an estimated $300,000 per plaintiff), Stryker and Howmedica have updated their offer. In a press release dated December 19, 2016, Stryker announced that the company will: “…compensate additional eligible U.S. patients who had surgery to replace their Rejuvenate Modular Neck Hip Stem and ABG II Modular Neck Hip Stem, known as a revision surgery, prior to December 19, 2016.” However, there was a narrow window of opportunity for new plaintiffs. Enrollment began on January 17th, and closed on March 17th of this year. This new settlement extends an earlier agreement by two years. Earlier, the agreement covered only those patients who had gotten their hip replacements prior to November 3rd, 2014. Stryker is also requiring no fewer than 95% of eligible plaintiffs to enroll in the new Settlement Program before it will begin paying benefits. This news comes in the wake of the company’s fourth quarter statement, which reports a fall in profits of 2.3%, due to lawsuits over the Rejuvenate and ABG II modular metal-on-metal (MoM) neck hip stems, which have been subject to failure. Those products were recalled after Stryker started receiving reports of corrosion and wear that caused the release of metal into the bloodstream and adjoining tissues, causing a condition known as metallosis, which causes chronic pain,

Invokana And Amputation Risk: E.U. Health Authorities Now Require Package Warning Last year (May 2016), the FDA issued an “advisory” to physicians regarding results of a continuing clinical trial indicating that use of the diabetes medication Invokana (canagliflozin) “may” increase the risk of lower limb amputations. This year, the European Medicines Agency (EMA) has ordered that a warning about this amputation risk be included in the packaging with prescribing information. Furthermore, this warning has been extended to all prescription medications in the sodium glucose cotransporter 2 inhibitors (SGLT-2) class. In addition to Invokana, the warning applies to dapagliflozin (Farxiga and Xigduo) and empagliflozin (Jardiance and Glyxambi). Although it is not yet clear why and how canagliflozin increases amputation risks, the EMA advises: “For canagliflozin, lower limb amputation should be listed as an uncommon side effect (occurring in between 1 and 10 patients in 1,000). Doctors should consider stopping treatment with canagliflozin if patients develop significant foot complications such as infection or skin ulcers.” The EMA investigation into the connection between canagliflozin and The Trial Lawyer x 31

lower limb amputation began in April of 2016. Meanwhile, here in the U.S., the FDA continues to sit on its hands. Last year, the US regulatory agency said that it “has not determined whether canagliflozin increases the risk of leg and foot amputations,” but that it was “currently investigating this new safety issue” and would “update the public” when more information was available. So far, there has been no further word or action on the FDA’s part beyond the release of a few safety notices.

systems — including cancer patients undergoing chemotherapy — are the most likely to contract this disease. It is caused by a dearth of white blood cells, known as neutrophil granulocytes, which play a key role in the function of the immune system. The link between Taxotere and neutropenic enterocolitis has been known for several years, with studies going back as far as 2002. Although it is a rare complication, it can come on quite rapidly after starting Taxotere treatments. In many cases, the patient succumbs within a few weeks. Given the relative rarity of this side effect, the number of cases being reported in France in such a short period of time (six months) gave cause for concern. In response, the ANSM has been conducting a pharmacovigilance investigation into all treatments involving the use of Taxotere or its generic equivalent. So far, nothing unusual has been discovered, nor is the ANSM calling to remove the drug from hospital pharmacies.

More Than Hair Loss: The Connection Between Taxotere And Typhlitis Recently, French oncologists received a letter from that country’s National Drug and Health Product Safety Agency (ANSM), informing them of five fatalities resulting from the use of Taxotere (docetaxel). As a result, the Institut Curie, France’s premier cancer research and treatment center, has stopped using that chemotherapy drug and will be using Taxol (paclitaxel) instead. The five fatalities resulted from a condition known as neutropenic enterocolitis. Better known as typhlitis or typhlenteritis, this is an inflammation of the cecum, a small pouch located at the head of the large intestine. It is attached to the appendix, and like that organ, no longer serves any useful function in the human body. The disorder can nonetheless kill a patient. People with compromised immune

32 x The Trial Lawyer

E-Cigarettes Are Getting A Whole New Generation Of Children Hooked On Nicotine When electronic cigarettes were first introduced in 2004, one of their touted benefits was that they could help people to quit their nicotine habits. However, they seem to be having the opposite effect, particularly among young people. A study appearing this week in the journal Pediatrics has found that, far from discouraging the nicotine habit, e-cigarettes may very well lead youth to start smoking cigarettes who otherwise might not have done so.

This confirms an earlier study that was carried out at Georgia State University, and appeared in Nicotine and Tobacco Research. Based on data from surveys taken from 2011 to 2013, the study found that nearly 44 percent of adolescents who had used e-cigarettes planned to start smoking conventional cigarettes within 12 months, as opposed to 22 percent who had not tried e-cigarettes. Yet another study published in the November 2015 issue of JAMA Pediatrics found that “use of e-cigarettes at baseline was associated with progression to traditional cigarette smoking.” The bottom line: far from discouraging cigarette smoking among teens, e-cigarettes appear to be the proverbial “gateway” leading to actual tobacco use later on. Dr. Lauren Dutra of U.C. San Francisco’s Center for Tobacco Control Research and Education says that adolescents who start with e-cigarettes and go on to use the real thing “aren’t the kids we would normally expect to take up smoking.” Since these devices were not subject to FDA regulations until very recently, the tobacco companies that manufacturer e-cigarettes have been able to promote them as a way to stop smoking tobacco cigarettes, despite scientific evidence to the contrary. What is especially egregious is that tobacco companies market these devices in various flavors such as bubble gum, chocolate and strawberry in order to appeal to the youth market. Parents should understand that simply because these companies claim their product is somehow “safer” than regular tobacco doesn’t mean they are. It is true that the long-term health effects of e-cigarettes is largely unknown, but scientific evidence that the use of a “vape” (as it is often called) can and does lead to the same dangerous health effects, such as popcorn lung, a very serious lung disease.

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The Trial Lawyer x 33

TRUMP’S WAR AGAINST TRUTH By David K. Lane 34 x The Trial Lawyer

Politics is perhaps not the career choice most closely associated with the virtues of honesty and forthrightness. Politicians, and the pundits and surrogates who work for them, have been known to spin, reframe, ignore, and dodge stubborn facts in order to make them seem, well, less stubborn. Many have additionally been caught red handed promulgating outright lies. This is nothing new, shocking, or innovative. What is different about the new administration is the brazenness and frequency of the lies it produces, and its obstinacy in sticking by its false statements in the face of overwhelming and obvious evidence of their falsehood. This erosion of the most rudimentary respect for truth and logic does not bode well for the functionality of our government and society. Other politicians, when caught in a falsehood, might correct themselves then change the subject, but President Trump revels in doubling down, denying reality and attacking those in the press corps who dare to bring critical reason and empirical evidence into the discussion. Trump and his entourage have recently attempted to co-opt the term “fake news.” The term was coined to describe the spate of articles spreading unsubstantiated rumors, conspiracy theories, and absolute falsehoods that were spread by clickbait bloggers and bots connected with Russian cyberops, the bulk of which attacked his opponent and aided in his electoral victory. Trump, however, uses it to describe all the legitimate media outlets who have inquired into the veracity of his and his administration’s claims, and found them wanting in factual accuracy. Another striking fact is the sheer frivolity of some of the lies and distortions coming straight from the White House. Other politicians lie to cover sex scandals, or to avoid disclosing information that could be damaging to their careers, or, in less purely selfish cases, to avoid disclosing classified information or information which might damage national interests. They lie when the stakes are high. For Trump and his surrogates, no issue seems too trivial and petty for mendacity. His recent lies about the size of his electoral victory, the crowd size at the inauguration, and the lines at his CPAC address immediately spring to mind as examples of deceit so trifling and of such low strategic value as to raise questions of sanity. Trump’s looseness with the facts did not begin with his presidential campaign rhetoric, nor did it begin with his “Birther” campaign against Barack Obama. According to Tony Schwartz, the ghostwriter behind The Art of The Deal and creator

of Trump’s public image, it stretches back at least to his time shadowing the real estate mogul while writing the book. In an interview with The New Yorker’s Jane Mayer, Schwartz recalled listening to Trump make business calls, witnessing him lie about money and his dealings to business associates, plant false stories with journalists to boost property values, and engage in all manner of subterfuge, large and small. He said that Trump seemed to have no conscience about it, noting that “Lying is second nature to him…more than anyone else I’ve ever met, Trump has the ability to convince himself that whatever he’s saying at any given moment is true, or sort of true, or at least ought to be true.” He surmised that Trump’s ability to believe whatever seemed most advantageous to him gave him a “strange advantage” over people “constrained by the truth.” The lengths to which the Trump administration has gone to avoid facing unpalatable facts have been quite staggering. When the president claimed to have had a larger inauguration crowd than Obama, after a photo comparison meme spread online showing just the opposite, his press secretary doubled down, producing a set of statistics that turned out to be spurious. When these were debunked, his surrogate Kellyanne Conway invoked the now infamous “alternative facts” defense of the administration’s false claims. When CNN broke a story about the existence of a dossier compiled by the well respected former MI6 Russia desk head Christopher Steele, alleging ties between Trump and Russian operatives, and claiming that the Russian FSB possesses compromising information against Trump of both a financial and sexual nature, he dismissed CNN as a source of “fake news.” It later came out that both he and then-President Obama and Vice President Biden had been briefed on the dossier’s existence by intelligence services. Since these early debacles, the administration’s animosity towards the free press has only intensified. The list of journalistic outlets at which he has hurled the “fake news” epithet has ballooned to include ABC, CBS, The New York Times, NBC, and Politico, among others. In a rather Stalinesque turn, he declared that these outlets, who have been busier than ever fact checking his administration’s specious claims, are the “enemies of the American people.” This latter outburst has prompted vociferous criticism from all corners of American society, including members of his own party as well as respected military officials who rarely wade into partisan The Trial Lawyer x 35

politics. Senator John McCain stated in a recent interview that such attacks on the press are “how dictatorships get started.” Retired Admiral William McRaven, a veteran Navy SEAL who commanded JSOC and oversaw the raid that killed Osama Bin Laden, stated that Trump’s claim that the press is the enemy of the people “may be the greatest threat to democracy in my lifetime.” It can easily be argued that, of the many checks and balances designed to keep too much power from agglomerating in the hands of any one civic institution, the media and the independent judiciary have historically been the most effective bulwarks against tyranny. It is no small matter, then, that Trump has concentrated his most vociferous rhetorical attacks on these two institutions. Any institution or individual who has served as a check against his power, or his desire to craft the reality of his choosing, facts be damned, has come under rhetorical attack. And more dangerous than mere rhetoric, his policy suggestions that libel laws be changed in order to make it easier to hamstring journalists with costly lawsuits and that media shouldn’t be allowed to use anonymous sources threaten to stifle the functionality of critical investigative journalism. Indeed, the proper functioning of a free, critical, independent media is crucial to the continuance of our own free republic, and of liberal democracies everywhere. The existence of institutions through which facts inconvenient to those in power may come to light is essential in preventing power’s misuse, and in providing value to the all important variable in the equation of democratic-republican government, the “consent of the governed.” In the words of Supreme Court Justice Hugo Black: The press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change… muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. In addition to the importance of institutions that tell truth to power and bring to light its abuses, the broader importance of truth to society can hardly be overstated. The general proliferation of truth over falsehood is a necessary condition of well-functioning societies and governments. It is necessary in order for elected representatives to make proper decisions regarding legislation, and for the populace at large, in order to make proper decisions in electing those who will faithfully represent their interests in government. It is necessary for the progress of science and sound engineering. It is necessary for the very moral fabric of society. The 36 x The Trial Lawyer

proliferation of truth is indeed necessary for any deliberative endeavor that requires us to take facts as inputs and produce sound decisions as to our courses of action. That we are faced with a head of government and an administration that display such a flippant disregard for and an often antagonistic relationship to the truth is not merely corrosive to the political institutions that undergird our free republic, but is a universal acid threatening to corrode the bonds of society itself. The administration has produced a staggering number of untruths, but it is also notable for consistently doubling down on them, crafting secondary lies to cover the first, and resisting palpable facts, as if to create an interconnected web of consistent falsehoods in competition with reality. Such a broad web of disinformation and untruth not only encroaches on particular factual judgments, but as philosopher Hannah Arendt noted in her essay Truth and Politics, threatens to weaken the very capacity of citizens to judge between truth and falsity generally. We have already seen evidence of this breakdown of the capacity for factual judgment within the self-reinforcing information bubbles inhabited by various partisan factions in our body politic. Contra Moynihan’s adage, these factions now demand not only their own opinions or analyses, but their own facts as well. Well-intentioned fact-checkers are met with cynical suspicion when their facts are not in accord with the particular confirmation biases of the listeners. And can these citizens be completely blamed for this? When disinformation from the top is rampant, when one consistently hears contradictory reports of fact from different political sources, it becomes far more difficult for the average person to find accurate information within the noise with any sort of confidence or consistency, and suspicion of any reported facts is generated. When accessing the facts becomes more difficult, lazy thinkers, or simply people without the surplus time to investigate for themselves, tend to accept whatever seems right to them, leading to all sorts of biased reasoning impervious to contradiction by fact checkers, who are viewed with suspicion, as if no one could possibly be devoted to reporting the facts without an ulterior partisan motive. We have been treading this dangerous path for some time now, but the varied and multitudinous crimes against truth of the Trump administration have taken us farther along than ever before. What is required is fullthroated resistance from a unified fourth estate, with a renewed commitment to relentless fact checking and investigative work, and diligence among individual citizens in investigating the truth for themselves via multiple sources. Only a united front of all those institutions and individuals committed to objective journalism, empirical science, and propagating truth can stand strong against such broad campaigns of disinformation and dishonesty. Neither complacency nor cynicism is a viable option. Resistance is the only course available to those who believe that the truth is a terrible thing to lose sight of.









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The Trial Lawyer x 37

Pharma Prepares For

Profit Party Under

Trump By Martha Rosenberg

EVEN BEFORE HILLARY CLINTON GAVE HER CONCESSION SPEECH FOLLOWING THE 2016 ELECTION, PHARMA STOCKS WERE HOPPING AND WALL STREET SALUTING OVER A TRUMP ADMINISTRATION. No pesky price regulation over drugs like EpiPen! No pesky safety regulation over blood thinning drugs like Xarelto, linked to 500 deaths. No speed bumps when Pfizer, et al seeks to dodge U.S. taxes by incorporating overseas — the same taxes that fund their drugs in Medicare, TRICARE and other U.S. programs.

38 x The Trial Lawyer


Mylan jacked the price of its EpiPen, an emergency allergy treatment that saves lives, to $600 up from $100 almost overnight this summer. After public uproar, Mylan offered EpiPen cost breaks to lowincome people — a common Pharma ruse that simply shifts costs to others while letting Pharma keep its prices.

Of course, Pharma did not need a Trump presidency. Its profit party began in earnest with the nomination and confirmation earlier this year of Robert Califf as FDA commissioner despite financial links to 23 Pharma companies including Johnson & Johnson, Lilly, Merck, Schering Plough and GSK, according to a statement on the website of Duke Clinical Research Institute which he directed. In disclosure information for an article in Circulation, Califf also lists financial links to Gambro, Regeneron, Gilead, AstraZeneca, Roche and other companies and equity positions in four medical companies. Califf “served as a director, officer, partner, employee, advisor, consultant or trustee for Genentech,” according to Medscape website. This is an FDA commissioner? In the past, someone so heavily funded by industry would not be considered for a government position regulating that very industry. Yet on PBS, Califf saw no problem with doctors and researchers receiving Pharma money and actually thought it desirable. “Many of us consult with the pharmaceutical industry, which I think is a very good thing,” he told health correspondent Susan Dentzer on PBS Newshour. Two government institutes are also happily feeding the Pharma beast. Nora Volkow, director of the National Institute on Drug Abuse (NIDA), says the institute is looking to Pharma to find a “vaccine” for drug addiction. What? Shouldn’t Volkow know, as head

of the Institute, there is no “cure” or vaccine for addiction — that it is widely viewed as a physical, psychological and spiritual disease? Especially as opioid addiction-related deaths number in the thousands each year? Has she ever talked to Michael Botticelli, director of the White House Office of National Drug Control Policy who, as an addict himself, advocates non-drug, non-Pharma, peer treatment for addiction? (And shouldn’t NIDA replace the very dated term “drug abuse” with the non-judgmental term “addiction?”) Animal lovers will be appalled at what Volkow has done to primates in the lab only to conclude that maternal drug use affects offspring. Under the leadership of industryfriendly Thomas Insel, the National Institute of Mental Health (NIMH) has also been feeding the Pharma beast. Non-drug research is no longer even fundable, lamented a recent New York Times editorial. Insel, an early proponent of SSRI antidepressants which he said worked better and faster than non-drug psychotherapy, left government to work at a billion dollar, semi-secret private venture between Google and Pharma last year that few are even aware of. The CEO of the new Google life sciences venture is former Genentech chairman Art Levinson. Insel, while NIMH director, said that not enough toddlers were on stimulants for ADHD even as the nation was aghast at how many children are dosed. As Trump continues to dismantle

our Constitution with his executive orders, many feel his election does not represent popular sentiment — the same disconnect seen with Pharma. Public anger at Pharma and its outrageous prices is at a peak but regulatory firewalls are evaporating and alarming conflicts of interest tolerated. In February 2016, a smirking Martin Shkreli, founder of Turing Pharmaceuticals, refused to explain or defend his price hike of the antiparasitic drug Daraprim from $13.50 to $750 on the Hill, a price hike that could put the life-saving drug out of reach for some. With clear derision for regulators and the public itself, he tweeted that lawmakers were “imbeciles” after he testified. Then Mylan jacked the price of its EpiPen, an emergency allergy treatment that saves lives, to $600 up from $100 almost overnight this summer. After public uproar, Mylan offered EpiPen cost breaks to low-income people — a common Pharma ruse that simply shifts costs to others while letting Pharma keep its prices. Meanwhile hepatitis C drugs that cost $84,000 for a course of treatment are looting our Medicaid tax dollars in strapped states. No, Pharma did not need a Trump presidency for a profit party — but the rejoicing is slightly merrier than it would have been if Clinton had won. Enjoy your overseas incorporations and tax dodges, Pharma. n




UNRAVELED By Farron Cousins

40 x The Trial Lawyer

In 1988, Dr. James Hansen was invited to speak in front of the U.S. Senate Committee on Energy and Natural Resources. At the time, Dr. Hansen was the head of the NASA Goddard Institute for Space Studies, and the committee invited him to speak about an issue he was studying that few knew anything about. That issue was global warming. Dr. Hansen told the committee that the research was becoming more and more clear, and that the scientific community could now identify a cause and effect relationship between increasing carbon emissions from burning fossil fuels and the warming of the environment. This was the first time that the majority of politicians and the American public had been introduced to the concept of climate change, and many of them greeted these new scientific findings with a yawn. But there was one group of people that knew beyond a doubt that Hansen was telling the truth and that his presentation to the Senate could alter their lives forever. Believe it or not, the people who understood exactly what Dr. Hansen was talking about were the folks at Exxon Mobil. Almost a decade before Dr. Hansen walked into that committee hearing, scientists working for Exxon had come to the conclusion that burning fossil fuels was destroying the environment. They understood that the increasing CO2 emissions from their own products were contributing to the warming of the planet and the deaths of countless species across the planet. All of these facts were revealed earlier this year when Exxon’s internal documents were released to the public by journalists and climate activists. So why did it take independent scientists more than a decade to come to the same conclusions as Exxon? Why didn’t Exxon make their findings public? The answer to both those questions is that Exxon knew that if the public learned about the dangers of burning fossil fuels then it would be out of business in no time, so they dedicated their work from the 1980s to the present day to covering up their findings and spreading misinformation about climate science.

The Trial Lawyer x 41

Just like the tobacco companies worked to confuse the public about the dangers of smoking, Big Oil companies did the same with climate change. They spent millions of dollars paying off scientists to claim that climate change wasn’t happening; they poured millions of dollars into right wing think tanks to tell us that climate change was some sort of liberal hoax; and they bought off politicians in Washington D.C. to make sure that they wouldn’t get punished by the legislative branch of the government for destroying the planet. And for many years, the majority of the American public bought it. They weren’t sure if burning fossil fuels could actually affect the atmosphere. They didn’t know if they could trust scientists because Exxon, for years, had told us that these scientists were just publishing these reports to get rich.

42 x The Trial Lawyer

The Trial Lawyer x 43

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But all of that changed when these Exxon documents became public. We learned that the company knew about the dangers of climate change back in the 1970s. And even worse, we have internal documents showing that they were worried about the effects of carbon emissions on the environment as far back as the 1940s, but they still hid those dangers from the public. The end result of the Exxon cover up is that we had decades of inaction; decades of increasing emissions; and decades of doubt. But the good news is that those dark days are coming to an end. ExxonMobil is currently being investigated by as many as 20 different state attorneys general for this cover-up. In addition, the federal Securities and Exchange Commission is investigating ExxonMobil’s approach to valuing its assets in a world of laws and agreements regulating greenhouse gas emissions. The company is claiming that these investigations are “politically motivated” witch-hunts designed to intimidate the company and gain political points with American voters. But even the American voters aren’t buying Exxon’s lies anymore. 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 major contributing factor. Just a few years ago, the majority of Republicans in the US didn’t believe that climate change was real at all, so that’s a major leap forward in a short amount of time. So as Exxon continues to fight against these subpoenas for information on how they covered up their own science on climate change for decades — a fight, I might add, that they are losing — just remember that the public has woken up to the dangers, and we’re beginning to see more and more people in this country from both parties stand up and fight back to protect the environment. n



IMAGINE By Mike Papantonio

According to a 2009 study by Fairness and Accuracy in Reporting, with the exception of CBS, every major media outlet in the United States shares at least one board member with at least one pharmaceutical company. Let me put that into perspective: These board members wake up, go to a meeting at Merck or Pfizer, then they have their driver take them over to a meeting with NBC to decide what kind of programming that network is going to air. And for those board members who aren’t pulling double duty with a media conglomerate and a Big Drug Company, they still understand that they can’t be honest and objective about Big Pharma because Big Pharma pays their bills. Drug companies spend about $5 billion a year on advertising with these

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corporate media outlets. So when Pfizer, Merck, Eli Lilly, or any of the major pharmaceutical companies kill or cripple Americans with defective drugs, do you really think those board members are going to allow their story to be told on the air? It can take anywhere from three days to a full week before the media reports on a drug or medical device recall, if they report on it at all. In the case of Invokana, it took 32 days before television outlets reported a single story involving an FDA warning about the product potentially being harmful. The FDA began warning about the extreme dangers of Cook IVC filters as early as 2010, and it took about five years before the television media started reporting that to the public. And it’s worth pointing out that in these

According to Open Secrets, Big Pharma spent more than $58 million on politicians in 2016, the largest amount they’ve spent on direct contributions in the last quarter century.

instances, it was only through non-corporate, independent media outlets that these stories were told at all. It was the outlets that weren’t being influenced to remain silent by the drug industry. And you can replace “IVC” or “Invokana” with any other drug or product and the story is always the same: Stryker Hip Impants, C8, Vioxx, RoundUp, Xarelto, Essure, talcum powder. The corporate media doesn’t care about these stories because they either share board members with these companies, or because they want those companies to keep throwing ad dollars their way. These gigantic media corporations are not going to do anything to threaten their relationships with their biggest advertisers. Drugs are a “cash cow” advertising bonanza for corporate media. Fortunately, an increasing number of Americans are starting to wake up and realize that the mainstream media should not be trusted. In recent years, we have seen the alternative media experience rapid growth. The mainstream media has been losing credibility at a staggering rate, and Americans are starting to look elsewhere for the truth about what is really going on. As a result of all that advertising money kicking around, the corporate media is not permitted to report complex drug stories anymore. It’s as if they don’t understand the link between crony capitalism and the revolving

door between the FDA and the drug industry. But the media is only one side of the story here. Big Pharma knows that if it wants to continue manipulating the public, it has to start with our elected officials in Washington, D.C. According to Open Secrets, Big Pharma spent more than $58 million on politicians in 2016, the largest amount they’ve spent on direct contributions in the last quarter century. When it comes to lobbying, few industries spend more than Big Pharma — last year, the industry spent a staggering $244 million to influence our elected leaders in Washington, D.C. And it looks like things are about to get much worse. According to a new report by Pro Publica, drug companies are offering huge money to any scientist, professor, or academic willing to author studies showing that these drug markups are necessary. Their goal is to spread around enough money at universities to develop scientists and doctors who will create a fantasy story about drug price gouging. And then that story will be run by corporate media, dominated by the drug industry. You see, Big Pharma understands that their ridiculous drug price gouging is starting to draw negative attention from the American public, and no matter how much they spend on advertising, or buying our politicians, they can’t keep public anger down forever. n

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There’s something about taxes that elected Republicans know, but most Americans are completely unaware of. It’s the reason we keep falling for the perennial GOP tax scam, and Paul Ryan, Mitch McConnell, and their buddies in the White House are getting ready to run this ruse on American working people all over again. Here it is in a nutshell: Tax cuts for truly wealthy people increase their income and wealth; tax cuts for working people actually decrease their income and wealth over time.

Here’s how it works. If you’re part of the top .1% — say you’re earning a million dollars a year — and you get a tax cut, you’ll keep more of the money you’re earning. The main reason is because people in those income categories 1) generally have a high degree of control over their own income; and 2) they more often than not already are working under a massive tax cut — at least a lower tax rate — called the capital gains tax. But even setting aside part 2 of that, truly superhigh income earners, like the banksters

on Wall Street or CEOs of large corporations, have a significant measure of control — if not total control — over their own income. For working people, it’s an entirely different story. Let’s say for the sake of argument that I’m a super-wealthy entrepreneur and I own the company you work for. While I can set my own paycheck (within the parameters of money available to the company), I also set your paycheck. But that’s largely a “market function” — that is, I pay as

little as possible for the right talent to get the work done. So if we live in a country where working people pay, to use round numbers for example, a 50% tax bracket, and I know that you need $50,000 a year after taxes to live, and pretty much anybody who’s applying for your job will also demand at least a $50,000 take-home pay, I’ll set the wage for that particular job at $100,000 a year. At a 50% tax rate, that gives you $50,000 after taxes. As the company owner, let’s say that I’ve set my own salary at $1 million a year, which means I’m taking home around $500,000 a year at a 50% tax rate (of course, taxes are progressive, but that’s not relevant to this argument as Republicans want to “cut taxes for all income brackets,” so for simplicity sake let’s assume the “flat tax” Republicans say they love so much). Now, what happens if Democrats come into power and say that they want to build a national high-speed rail system, and need to raise taxes to 60% to do it. What happens to my pay and to yours? For me, my net take-home income goes down from $500,000 to $400,000 a year, but I can easily fix that by simply increasing my pay to $1.2 million. After all, this is a billion-dollar company, and a little bit here and there for me and my executives is no big deal. But you — and anybody else doing the particular job you’re doing — still need $50,000 take-home pay in order to live. So if your taxes go up, and I want to keep you as an employee, I’m going to have to raise your pay by enough to keep your take-home even. This is why when taxes go up on working people — as they did dramatically from 1913 to 1980 — pay went up dramatically, too. This is also why high-tax countries pay higher wages (and have better public services, paid for with those taxes). In Denmark, for example, the average full-time McDonald’s worker earns around $45,000 U.S. equivalent, although about 40% of that goes to taxes to pay for the national healthcare system, one of the world’s best school systems, and high-quality high-paid police who treat Danes with respect. On the flip side, what happens when Republicans come into power and decide to cancel the government expenditures and “return people’s income to them” by lowering taxes? Let’s say they drop the tax rate from 50% to 25% (Reagan actually dropped the top rate from 74% to 25%). What happens to me and you? As the CEO who controls his own income, I continue to take my $1 million, but my take-home goes from $500,000 up to $750,000. I get richer — and rapidly — and I can stash that money in a Swiss bank account. But I still know that you can only really live on $50,000 a year, and thus are only willing to do your job for that as take-home pay. However, with a $100,000 before-tax salary, you’ll now be taking home $75,000 — way more than I know you need. So, what does an employer do? He cuts your pay down 52 x The Trial Lawyer

enough that you’re only still taking home $50,000 a year. Your $100,000 salary will — over time, and through the process of layoffs and attrition, letting go of higher-paid people and hiring lower-paid people — drift down to around $75,000, so you’re still taking home $50K. A 25% cut in taxes on working people will give a shortterm boost to paychecks, but over a period of a few years it’ll mean working people’s before-tax wages will drop by about 25%. Employers, after all, know the minimum amount of take-home pay working people are willing to work for (aka “the labor market”). This is why when Republicans cut taxes, wages go down or stay flat for working people, a phenomenon we’ve watched over and over again since Reagan began this process in the 1980s. Today, when the “older” (as in, “earning the old pay scale from when taxes were higher”) workers move on or retire, they’re replaced with new lower-paid workers. Factory jobs that used to pay $30/hour or more, for example, now pay $14/hour (check out the GM contracts negotiated over the past few decades as a vivid example). According to economist Thomas Piketty, the poorest 50 percent of Americans have seen their incomes decline by a full 1 percent since 1978 — even as incomes for the top 10 percent of Americans have jumped by whopping 115 percent and incomes for the top .001 percent have skyrocketed an astronomic 685 percent. The aforementioned progressive nature of our tax code — big changes at the top are matched by much smaller changes at the bottom — accounts for why wages have “merely” been flat or declined “only” 1% since Reagan, whereas wealth at the top has exploded under “conservative” tax policies. Meanwhile, the larger effect of tax cuts defunding government will see the power of corporations and billionaires grow, while the ability of government to do things will shrink. We’ve gone from NASA sending men to the moon to having to rely on private corporations to send rockets up to refill the space station. Starting with Reagan’s government-defunding billionaire-friendly tax-cuts in the 1980s we stopped building and even repairing much of our infrastructure, causing the deterioration of our nation to nearly developing-world status in many parts of the country. So, with the GOP in power, get ready to see working people’s pay start dropping again, as it did starting in the 1980s after Reagan’s tax cut and in the early 2000s after Bush’s. Also get ready to see income inequality grow even worse, as the truly rich see a big boost in their take-home pay and thus their overall wealth, while working people and our nation’s infrastructure get screwed. And get ready for voters who have no idea how this all works to get totally behind the GOP “we’ll cut your taxes” rhetoric, not realizing that Paul Ryan, Mitch McConnell and Donald Trump/Mike Pence view us all as merely useful idiots. n



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t n e t e p n m w o o c T n I n I TheSheriff New ousins

on C By Farr

In spite of the recent chorus of people in the United States clamoring for an alternative to status quo politicians, party loyalty still counts for everything among the elite of Washington, D.C., on both sides of the aisle. There is no better example of what loyalty to your own party can get you than the story of Jeff Sessions.

For two decades, our new Attorney General served as a U.S. Senator from the state of Alabama, where he was one of the most consistent and loyal members of the Republican Party. At every given opportunity, Sessions voted against civil rights, against expanding social safety net programs, and he stood firmly against every justice that former President Obama attempted to appoint to the U.S. Supreme Court. During the George W. Bush administration, he served as a loyal lackey for the Republican Party, standing firmly in his support for a ban on same sex marriage and in favor cutting taxes on the rich and sending our troops to die in a war based on lies. Sessions’ loyalty prevented him from ever becoming a target within his own party, something that even longstanding Republicans like John McCain and Mitch McConnell haven’t been able to avoid. That should paint a clear enough picture as to why current President Donald Trump tapped the Senator and former Attorney General of Alabama to be the new Attorney General of the United States. Unwavering party loyalty is always rewarded, especially when both major political parties appear to be fracturing from the inside. 54 x The Trial Lawyer

But who exactly is America’s new top law enforcement officer, and what can we expect under his rule? The best place to start when trying to predict the future is to look at the past, so let’s start with the most glaringly obvious of Sessions’ faults. The Racist Skeletons In The Closet During Sessions’ confirmation hearings, both Senate Democrats and the media were buzzing with stories of Jeff Sessions’ racist history. But for the most part, few outlets ever took the time to really expand upon that singular talking point, opting instead to just throw out the racist label without offering the full context of just how bad a Sessions appointment would be for African Americans in the United States. While he was a U.S. Attorney in Mobile, Alabama, Sessions was discussing a case with some of his colleagues that involved two members of the Ku Klux Klan who brutally murdered a black man and hung his body from a tree. When Sessions learned that members of the Klan had smoked marijuana before the attack, he remarked to his

colleagues that he thought the Klan was “okay until I found out they smoked pot.” It was that very statement that cost him a federal judgeship in the 1980s, when both Democrats and Republicans felt the man, who claimed he was joking when he made that statement, was simply too racist to serve as an unbiased federal judge. The man who testified in that Senate hearing in the 1980s, Thomas Figures, was a black man who worked with Sessions in Mobile. Figures stated that he did not feel at all that Sessions was “joking” when he made that statement about the Klan, and that on countless occasions Sessions would refer to him as “boy” and had once told him to “be careful what you say around white folks.” Figures passed away two years before Sessions’ most recent confirmation hearing. Meanwhile, other people who worked with Sessions at the same time came forward during that hearing in the 1980s to say that the man was completely unbiased, and without his work the state never would have been able to launch successful prosecutions against Klansmen. But those facts didn’t change the very words that had previously come out of Sessions’ mouth, and his nomination was voted down. Voter Suppression Let’s be clear about one thing: Not all racism is overt. Sessions is a man who was born in the state of Alabama during the time of segregation; He was in his formative years when the Civil Rights movement was taking place, and those types of life experiences are certain to have an impact on how one race views another, depending on the type of household they grew up in. While we don’t know if Sessions’ family was pro or anti desegregation, their position on what was happening all around would likely shape how Jeff himself viewed the world. And judging from his actions and words, it is likely that they weren’t welcoming desegregation with open arms. So even if Sessions wasn’t overtly racist, his actions as both a U.S. Attorney and as the 44th Attorney General of Alabama demonstrate a pattern of behavior that was nothing short of hostile towards people of color. His most egregious act as Alabama’s Attorney General was his ruthless attempt to suppress the votes of African Americans in the state. This is another issue that helped prevent him from becoming a federal judge in the 1980s. During his time as AG, he brought dozens of cases against African Americans who had been prominent figures in the Civil Rights movement to trial for alleged voter fraud. His office’s investigation originally swept up more than 100 black citizens of Alabama on voter fraud charges, but due to a complete lack of any evidence, those numbers fell down into the 20s in a very short time. But the few who did end up on trial were taken 160 miles away from the state capital down to Mobile, an area that Sessions knew would give him a mostly white, if not allwhite, jury (ironically, the jury consisted of seven black jurors and five white ones, so Sessions’ plan backfired beautifully). The courthouse for this trial was surrounded by FBI agents 56 x The Trial Lawyer

and police officers, all heavily armed and ready to fire shots at anyone outside that became unruly. Ultimately, the people brought in on charges of voter fraud were acquitted due to an overwhelming lack of evidence. But Sessions didn’t care — he made his point. Those closest to both Sessions and the defendants are very clear when they tell this story — the men were brought to trial by Sessions because they were helping African Americans register to vote, and that’s what Sessions wanted to put an end to in his state. It wasn’t about the alleged fraud (that didn’t exist); it was a message to black activists that they would go through a similar time-consuming, expensive ordeal if they decided to get their communities active. That was Sessions’ plan all along. Friend Of Wall Street One of the biggest criticisms of President Obama’s Attorney Generals — Eric Holder and Loretta Lynch — was that they were far too lenient (friendly) with Wall Street banking criminals. Holder came from the corporate defense firm of Covington Burling which has made millions representing these banks, while Lynch actually served on the board for the Federal Reserve Bank in New York. This helps explain why the Wall Street bankers who crippled our economy right before Obama took office never saw a day in prison, instead paying paltry fines that were largely written off and paid for by taxpayers. But if those ties to Wall Street gave you shivers then Sessions’ ties to Wall Street bankers will leave you nauseated. During his time as a U.S. Senator, Sessions received a grand total of more than $2.5 million from the finance industry for his campaigns, making them his single largest industry donor. But the direct financing of his political career is only a small piece of the Sessions puzzle, and he has done everything in his

power to make sure that the big banks were well taken care of when he had a say in the matter. In 2007, Sessions was busted trying to push through legislation in the Senate that would have prevented specific banks from having to pay royalties to a tech company that developed technology to convert paper checks into digital transactions. At the time, these banks were paying billions of dollars a year to use the tech firm in order to utilize this technology, but Sessions put forth legislation that would have stopped those payments immediately. But what Sessions didn’t tell anyone is that he owned quite a bit of stock in both Citigroup and Compass Bank, two of the banks that would have been allowed to stop paying royalties under Sessions’ legislation. It is safe to assume that given his history of coddling Wall Street, we will likely endure another four years of Wall Street bankers ripping off consumers with little to no punishment. Even the paltry fines of the Obama years will likely disappear with Sessions at the helm of the Department of Justice. Potential Perjury While his positions on the issues are worrisome, those aren’t even the biggest problems facing the newly-appointed Attorney General. The biggest concerns at the moment center around the fact that Sessions likely perjured himself during his confirmation hearing. Amid the growing fervor over Russia’s involvement or non-involvement in the U.S. elections and in the Trump administration itself, Sessions was asked by Democratic Senator Al Franken during his confirmation hearing if he would recuse himself should an investigation into the matter ever manifest. This is Sessions’ response to that question:

“Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign, and I didn’t — did not have communications with the Russians. And I’m unable to comment on it.” It is important to note that Senator Franken did not ask Sessions if he, personally, had ever had any contact with the Russians. Sessions offered up that information completely on his own. And he was under oath, another major point to consider. As it turns out, that voluntary piece of information during his confirmation hearing is what could ultimately prove to be his undoing, because evidence has emerged that shows that Sessions did, in fact, meet at least twice with a Russian ambassador during the presidential campaign, making his statement flat out false. There are several important things to understand at this point. The first is that we do not know why Sessions was meeting with the ambassador. Defenders have claimed that since Sessions served on the Armed Services Committee it was only natural for him to meet with the ambassador, as this practice is common. However, other members of the Committee have confirmed that, no, this is not normal behavior. But all of that misses the point. The argument is not over what he talked to the ambassador about, the point is that the man lied under oath. For all we know the two could have been discussing the merits of pet ownership — the content of the conversation is completely irrelevant to the fact that Sessions denied the meeting under oath, and therefore likely committed perjury. The content and context of the meetings doesn’t matter. In the wake of the scandal, Sessions did finally come out and say that he would recuse himself from any investigations involving meetings between the Trump campaign and Russia, but that didn’t stop Senate Democrats and even a handful of Republicans from demanding that Sessions either step down as Attorney General, or that an investigation into the potential perjury get underway. Only time will tell at this point if the Democrats have the courage and stamina to bring perjury charges, or if they will tire and move on to other issues. Future All of the factors mentioned paint a fairly depressing picture of the future of American justice under our new Attorney General. Jeff Sessions has a disturbing history of consistently being on the wrong of social issues from gender equality to marriage equality to racial equality. Couple that with his willingness to allow the “rights” of corporations to trump those of the American public and we can already predict that the next four years — or however long this man remains at the top position of the Department of Justice — are going to be ones in which American consumers are continuously stepped on as corporations get everything that they could ever want from both Attorney General Sessions and the Republicans who gave him his new power. n The Trial Lawyer x 57

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SUPREME COURT TAKES UP CROSS-BORDER SHOOTING CASE By Mollye Vigodsky Controversy is brewing over the shooting of a Mexican teenager, Sergio Hernandez, who was killed by a border patrol agent in 2010. The patrol agent was on the U.S. side of the border and Hernandez was on the Mexican side of the border when he was killed. The U.S. Supreme Court recently began hearing arguments on whether or not Hernandez’s parents have the right to sue the U.S. government over his death. The decision could have far reaching consequences for foreigners who want access to the U.S. court system. Shootings along the U.S.-Mexico border are not uncommon. Exactly how often they occur has been tough to determine, because until recently the U.S. Border Patrol released no public information about the incidents. However, according to the Dallas News, between 2010 and 2015, 33 people died in encounters with border patrol and customs agents. All but one of those incidents was considered justified. In many of these shooting cases, the real question is: Does the Constitution stop at the border? For example, if 15-year-old Sergio Hernandez were an American citizen, his family would legally be able to pursue litigation against the agency. This case questions if Mexican nationals have a right to pursue a case against the federal government, when Mexican citizens are killed just on the other side of the border.

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There is a lot riding on the Supreme Court’s decision, should it choose to issue one in this case. If justices rule in favor of the Hernandez family, the case may invite prosecution against other border patrol agents who injure or kill Mexican citizens, leading to some concern that agents would be too worried about prosecution to do their jobs. Also, if Mexican citizens have constitutional protections against deadly force by U.S. agents, would the same protections apply to civilian victims of drone strikes across the world? If the justices choose to issue a ruling, they will do it by summer. If they remain split, that decision effectively upholds the ruling of the lower court. In this case, there is no lower court ruling. There hasn’t been

a trial yet because the lower courts ruled the 15-year-old shooting victim wasn’t protected by the U.S. Constitution. The Supreme Court could also choose to rehear the case once a 9th justice is confirmed. Confirmation hearings for nominee Neil Gorsuch are underway. This is the first case the Supreme Court heard under the new administration and comes as President Donald Trump’s policies concerning his executive order on immigration have raised questions about the constitutional rights of non-citizens. Another backdrop is the tense relations between the Trump administration and Mexico over the issue of building a wall between the two countries. n

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To the outside observer, it may look as if the Republican Party can’t decide what to do about repealing the Affordable Care Act (ACA). After voting to repeal the ACA more than 60 times in the House of Representatives, Republicans now hold both houses of Congress as well the presidency. Repeal is in their grasp, and yet they seem paralyzed. But that’s only true if you believe that a political party’s mission is to govern. If raising money is the GOP’s true goal, their paralysis suddenly begins to make more sense. While they debate the issue, the Center for Media and Democracy has uncovered documents that show that Republicans are raising a heck of a lot of money off America’s healthcare misery. Most healthcare policy experts agree that the ACA has a number of structural problems. But there is also widespread agreement that it provides health coverage to approximately 20 million Americans who would otherwise not have it. Public health professors Steffie Woolhandler and David Himmelstein are nonpartisan observers who are longtime proponents of a single-payer system and critics of the ACA. Their recent study concluded that nearly 44,000 Americans will die each year if the ACA is repealed. You might think that an issue involving matters of life and death, as well as Americans’ health and financial security, would be addressed with the utmost gravity and objectivity by one of our country’s two major political parties. If so, then you don’t know the current leadership of the GOP. Some health insurance heavyweights hosted a “private dinner” last month with Rep. Steve Scalise (R-LA), the House Majority Whip, at an upscale restaurant that advertises itself as “just steps from the White House.” Industry sponsors included the PAC for Cigna, the insurance industry giant whose merger with Anthem is still working its way through the courts. Other sponsors included two industry groups, AHIP PAC (America’s Health Insurance Plans) and NAIFA PAC (National Association of Insurance and Financial Advisors). Scalise’s fundraising dinner took place on January 24. On January 25, Congressional Republicans began a twoday retreat to discuss their “repeal and replace” plans for the ACA. “It’s an open debate about where we’re going to go,” said Rep. Brett Guthrie (R-KY), vice chair of the Energy and Commerce Committee’s Subcommittee on Health. As long as the future of health care remains undecided, the insurance industry will be motivated to affect the outcome. And say what you will about Steve Scalise, but he knows how to raise money. From the Baton Rouge Advocate: “As the third-ranking member of the U.S. House, Majority Whip Steve Scalise spent the past year flexing his political fundraising muscle — bringing in a nearly $16 million haul for himself and other Republicans during a crucial period that saw the GOP win majorities in the The Trial Lawyer x 63

House and Senate and take the White House.” Scalise’s political director told the Advocate that he “headlined about 100 fundraising events for candidates outside Louisiana, including fundraisers held in Washington, D.C., over the past year and another 50 events in Louisiana.” Perhaps that’s why Republicans were willing to overlook Scalise’s 2002 appearance at an event sponsored by a hate group named “EURO” — the European-American Unity and Rights Organization. Scalise reportedly told the group, founded by white racist David Duke, that the federal Department of Housing and Urban Development (HUD) was a “slush fund” that funded “a selective group based on race.” Scalise claimed to be unaware of the group’s history or beliefs, a statement that was met with incredulity by Mark Potok of the Southern Poverty Law Center. Potok told Slate that “EURO already was well-known as a racist hate group,” adding, “It’s worth noting that Scalise apparently did not leave even after hearing other racist speakers spouting their hatred.” Scalise took political fundraising to new heights of salesmanship — and cynicism — when he prepared a “menu” of services for donors, based on how much they were willing to pay. That document, published exclusively by the Center for Media and Democracy, showed that a contribution of $100,000 or more would buy a list of amenities that included: • “One-on-one Coffee” • “Private opportunity with Whip Scalise” • “Exclusive Access” to retreats with Scalise • “Participation in Team Scalise National Finance Committee Annual Fly-In” • “VIP Access at the NRCC Annual March Dinner & Summit” • “Biannual briefings with key members of Team Scalise and/or top political strategists and pundits” Similar lists were provided for other donation amounts, ranging from $5,000 to $50,000. Most of Scalise’s campaign contributions have come from the energy industry, followed by real estate, health professionals, and insurance. Scalise has a number of fundraising vehicles, but relies heavily on his “Eye of the Tiger Fund,” which is named for the bombastic theme song from the 1986 film “Rocky III.” The song celebrates “a man with the will” who can “kill with the skill to survive.” It’s a good choice for today’s self-interested Republicans, for whom society is a jungle and even elected officials have no obligation to serve others. Fundraise off the possibility of 43,000 deaths? Hey, if you’ve got the will, and the skill, nothing is unthinkable. n

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There has been a lot of talk since the election of the role Russia allegedly played in influencing the outcome, along with indications from the intelligence community that the Russians are blackmailing Trump for reasons that are not clear. At the same time, tensions between Russia and NATO are ratcheting up, threatening to re-ignite the Cold War. In the wake of the sudden resignation of National Security Advisor Michael Flynn over an ill-advised phone conversation with the Russian ambassador, sensitive information is being leaked to the public right and left in violation of the law — while at the same time, they’re withholding it from the White House. Meanwhile, major media outlets have been busy spreading disinformation on Russia.

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It is as if certain parties are trying to re-ignite the Cold War while undermining the Office of the Presidency. According to a most unlikely Trump ally, that is exactly what is happening. Former Ohio Congressman and presidential candidate Dennis Kucinich, appearing on a Boston radio program, suggested that the CIA and the media are attempting to exert influence on foreign policy — almost like William Randolph Hearst did nearly 120 years ago, which led to the SpanishAmerican War. For example, Kucinich points out that, “When you look at the way the Flynn episode unfolded it’s very clear that his communications were taped, they were transcribed, they were given to the media with specific timing involved … this was clearly a trap set for him.” Kucinich also mentioned how the Washington Post, which first broke the Michael Flynn story, may very well have gotten the information through its owner, Amazon CEO Jeff Bezos. Not coincidentally, Amazon has been making a great deal of money doing business with the CIA. In December, Bezos landed a contract with the CIA worth $600 million to build an advanced “cloud computing” system — twice what he paid for the Washington Post. And yet, no mention of this has ever been made in the WaPo. What is significant about Bezos’ deal with the CIA is that his was not the lowest bid. Furthermore, it appears that more sweetheart deals are in the works. Today, Amazon is a “major vendor” to the federal government. It is becoming clear as to what is happening here. The intelligence community, wanting to stay in business, has gone to war with the Executive Branch — taking advantage of Trump’s unpopularity and incompetence — and is being aided and abetted by a newspaper and retail magnate who has a great deal to gain.

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This is a dangerous precedent. It not only undermines our institutions, it threatens to launch an entirely new arms race that will divert resources from infrastructure and social needs at home, putting hundreds of billions of dollars in the pockets of the defense industry and government contractors like Amazon — and providing employment security for CIA agents. Donald Trump may be the worst president in U.S. history, but this is not about him. The game did not start with the Trump Administration as toward the end of Obama’s presidency, there was a deliberate move by the Pentagon and the CIA to sabotage a deal with Russia that might have helped end the Syrian Civil War. If not exposed and dealt with, this game will continue with the next administration as well. This is about the integrity of the very foundations of our democracy. When government can be compromised by billionaire capitalists and its own agencies for their own interests, we are all at risk. 68 x The Trial Lawyer

THE REAL THREAT It is becoming alarmingly apparent to those who are awake that the most serious threat to the United States is not Trump — nor is it Russia or China. It is a coup d’état by what is known as the “Deep State,” which the Oxford Dictionary defines as “A body of people, typically influential members of government agencies or the military, believed to be involved in the secret manipulation or control of government policy.” These are government agencies and corporate interests that maintain a permanent existence as one administration replaces the one before it — and they wield considerable (as well as dangerous) power. They are organizations such as the CIA and the NSA, and can include major corporations with vested interests in influencing and shaping government policies (i.e., ones with government contracts). It is made up of bureaucrats who are appointed, not elected — and are accountable to no one. Presidents and Congresses and even judiciaries may come and go, but these members of the “Deep State” remain.

This is exactly what is going on in America today. The intelligence community has been withholding vital information from the White House on one side while leaking other kinds of information to the public. At the same time, Trump is accused of being in bed with Putin and working with and for the Kremlin, or is being blackmailed by Russia — although irrefutable proof of these allegations is lacking. Think about it: why was former CIA director Michael Morell so supportive of Hillary Clinton while accusing Trump of being a Russian operative? Why did Michael Hayden, another CIA and NSA head under Bush II, go to the Washington Post (the owner of which has his own agenda) just before the election and refer to Trump as “Russia’s useful fool?” Could it be because the CIA has been wanting to ramp up the proxy war in Syria — as Clinton wanted to do, escalating tensions with Russia while Trump’s proposal was to put pressure on Moscow and Tehran to come up with a diplomatic resolution? It’s much easier to establish a police state and control the

population when the nation is at war. There is also a great deal of money to be made from the sale of weapons and technology to a government at war. This coup of democratic government did not start with the Trump Administration. It has been years in the making, arguably dating back to the Kennedy Administration. Since the days of the OSS during World War II, the “spy-militaryindustrial complex” is well aware that peace and prosperity threaten the existence of their jobs. This is not a defense of Trump or his policies. He is incompetent and unqualified to govern, and has surrounded himself with some of the worst Cabinet members and advisers since Warren G. Harding, while being enabled by a Congress of lickspittles and sycophants motivated only by their own selfinterests. That said, all of us — Democrat and Republican, conservative and liberal, Progressive and Libertarian — face a far greater threat than a narcissistic man-child in the Oval Office. n

Forget Constitutional Crisis, This Is A Constitutional Apocalypse By Les Leopold

As Trump vilifies the press, the courts, immigrants, Muslims, Democrats, protestors and anyone who disagrees with him, it isn’t hard to imagine a modern day Mussolini… or worse. But, an even greater threat lies in the Republican’s march towards full control of state government. If they get there, they will have the frightening power to amend the Constitution into their own authoritarian image… or Ayn Rand’s.

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Republicans now control 32 state legislatures and 33 governorships. They have majorities in both state legislative chambers as well as the governorships in 25 states. The Democrats have total control in only six states and legislative control in two more. If Republicans achieve veto-proof control in 38 states, they can do something that has never been done before — hold a constitutional convention, and then ratify new amendments that are put forth. To date all amendments have been initiated from Congress where two-thirds of both houses are required. In either case 38 states would be needed to ratify the amendments. The Republicans are well on their way. We know what they are likely to do: end collective bargaining, outlaw abortion, forbid progressive income, estate and Wall Street taxes; prohibit class action lawsuits, privatize social security, guarantee “free choice” in all school systems, and so on. They would do what they’ve always wanted to do — outlaw the New Deal and its social democratic programs. And if they get crazy enough, they could end separation of church and state and undo other portions of the Bill of Rights. A paranoid fantasy? Just say President Trump.


How did we get here? Ask the corporate Democrats who have turned losing into an art form. Since 2008, they have lost 917 state legislative seats. Explanations range from Koch brothers funding to gerrymandering, to voter suppression to the rise of the Tea Party. All partially true. The Democrats also shoulder a good deal of the blame. Ever since Bill Clinton triangulated into NAFTA and away from working people, the Democratic Party’s embrace of financial and corporate elites have become the norm. Hillary Clinton took $225,000 per speech from Goldman Sachs not because she was corrupt. Rather, this is simply the way the political game is played. You raise money from rich people, and then you back away from attacking their prerogatives while still trying to placate your liberal/worker base. Getting rich along the way is to be expected. But as economist Jamie Galbraith put it, ultimately it is not possible for the Democrats to be both the party of the predators and the prey. THE FAILURE AND REBIRTH OF PROGRESSIVISM? The amazing acts of resistance popping up all over prove that the progressive spark is alive and well. Even seniors at the Progressive Forum in Deerfield Beach, Florida are planning to put their bodies on the line to stop ICE raids. While raising hell all over the country, we also should reexamine how our strategies and structures may have contributed to the rise of the right. After all, this electoral coup happened on our watch. 72 x The Trial Lawyer

Here’s our working hypothesis for how progressives contributed to the rise of the right: We have failed to come out of our issue silos to build a national movement that directly confronts runaway inequality. For more than a generation progressive organizations have shied away from big picture organizing around economic inequality. Instead we’ve constructed a dizzying array of issue silos — environment, LBGTQ, labor, immigration, women, people of color, criminal justice and so on. We are fractured into thousands of discreet issues, enabled by philanthropic foundations that are similarly siloed. Few of our groups focused on the way Wall Street and corporate elites strip-mined the economy. Very few of us mobilized around the great crash. Few of us noticed as the CEO/worker income gap jumped from 45 to 1 in 1970 to an incredible 844 to 1 by 2015. We collectively missed how this growing economic inequality was causing and exacerbating nearly all of our silo issues. We didn’t connect the dots. Most importantly, we failed to grasp how runaway inequality was alienating millions of working people who saw their incomes decline, their communities wither and their young unable to find decent jobs. While the Tea Party and the right had a clear message — big government is bad — progressives had little to say collectively about runaway inequality. ENTER OCCUPY WALL STREET By the summer of 2010, the progressive failure was painfully obvious. After Wall Street had robbed us blind and crashed the economy, a Democratic president was about to enter a “grand bargain” with the Republicans to promote austerity. Think about this: While Wall Street got bailed out in full, Obama and the Democrats were about to cut Social Security. Amazing. Then out of nowhere came Occupy Wall Street. (Out of nowhere is correct because the actions did not originate from any of our progressive silos.) In six months there were 900 encampments around the world. Thankfully, “We are the 99%” shifted the debate from austerity to inequality. Unfortunately, Occupy believed in spontaneous political combustion and shunned any and all organizational structures and agendas. Social media, consensus decision-making, horizontal anti-organizing, and anti-leadership were to carry the day. In six months they were gone. Meanwhile, the traditional progressive groups watched it rise and fall from the outside. We were spectators as we continued to press forward in our issue silos. ENTER BERNIE SANDERS We got a second chance. Bernie Sanders, an independent socialist with a clear social democratic agenda, decided to challenge Hillary Clinton, the presumptive nominee. At first,

few of us took him seriously. After all, he’d been around for 40 years, saying the same things but never gaining any traction outside of Vermont. But like Occupy, he and his message hit a nerve, especially among the young and among disaffected working people who were entirely fed up with the corporate Democrats. In a flash, Sanders did the impossible. He beat Hillary in several primaries. He drew much larger crowds. He even raised more money from small donors than the Clinton machine could raise from the rich. Progressive unions like the Communications Workers of America and National Nurses United went all in. For a few months the dream looked possible. But too many other large unions and liberal issue groups committed early to Clinton, thinking she would win easily. That would allow them to gain more access for their issues and for themselves. Didn’t happen. Trump toppled the Clinton machine in the Rust Belt. Some say he did so with a toxic combination of racism, sexism and xenophobia and that certainly was the case for a good portion of his vote. Others are certain that Comey and Putin made the difference. But in the Rust Belt, Trump won because he picked up millions of those who previously had voted for Obama and Sanders. It is highly likely that runaway inequality, and the trade deals that exacerbated it, defeated Clinton in the Democratic strongholds of Wisconsin, Michigan, and Pennsylvania. In Michigan alone Hillary received 500,000 fewer votes than Obama. WHAT NOW? We need to turn the marvelous anti-Trump resistance into a common national movement to that binds us together and that directly confronts runaway inequality. We need to come out of our silos because nearly every issue we work on is connected by growing inequality. Such a movement requires the following: 1. A common analysis and agenda: As we’ve written elsewhere, resisting Trump is not enough. We need a proactive agenda about what we want that goes beyond halting the Trump lunacy. The Sanders campaign offered a bold social democratic agenda to young people in particular. Progressives should be able to build broad support around a Robin Hood Tax on Wall Street, free higher education, criminal justice reform, humane immigration policies, Medicare for All, fair trade, real action on climate change, and a guaranteed job at a living wage for all those willing and able. 2. A common national organization: A big problem. We have no equivalent to the Tea Party. We have no grand alliance that links unions, community, groups, churches and our issue silos. There are excellent websites like Indivisible that are successfully

encouraging widespread resistance on the congressional level. But they consider themselves to be purely defensive against Trump. There are hundreds of demonstrations popping up all over but no organizational glue to hold them together. There’s Our Revolution — an outgrowth of the Sanders campaign — that is still getting its sea legs. But to date we have no common center of gravity that is moving us forward organizationally. Ideally we should all be able to become dues paying members of a national progressive alliance. We should be able to go from Paterson to Pensacola to Pomona and walk into similar meetings dedicated to fighting for our common agenda to reverse runaway inequality. Perhaps the hundreds of town hall meetings will head that way? It’s too early to tell. 3. An education infrastructure: The Populist movement of the late 19th century waged a fierce battle against Wall Street. It wanted public ownership of banks and railroads. It wanted livestock and grain cooperatives. It wanted a progressive income tax on the rich and public banks. The organization grew by fielding 6,000 educators to explain to small farmers, black and white, how the system was rigged against them and what they could do about it. We need about 30,000 educators to hold similar discussions with our neighbors about runaway inequality, how it binds us together and what we can do about. 4. A new identity: Our toughest challenge. For 40 years we’ve been conditioned to the idea that runaway inequality is an immutable fact of life — the inevitable result of automation, technology and competitive globalization. Along the way, neoliberal (free market) values shaped our awareness. We accepted the idea that going to college meant massive debts for ourselves and our families; that there was nothing abnormal about having the largest prison population in the entire world; that it was part of the game to pay high deductibles, co-pays and premiums for health insurance; that it was okay for the super-rich to hide their money offshore; that there was nothing to be done about chronic youth unemployment, both rural and urban, other than to try harder and pull themselves up. That it was perfectly natural for factories to pick up and flee to low wage areas with no environmental enforcement; and that somehow private sector jobs, by definition, were more valuable to society than public ones. These mental constraints have got to go. We got here as the result of deliberative policy choices, not by acts of God. We need to reclaim a basic truth: the economy should work for its people and not the other way around. Most importantly, we have to relearn the art of movement building — which starts in our own minds. We have to believe that it is both necessary and possible, and that each and every one can contribute to it. We desperately need a new identity — movement builder. Is this so difficult to imagine? n


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The opioid painkiller Oxycontin was approved by the FDA in 1995, and made its way onto the market in 1996. That first year it pulled in $45 million in profit for Purdue Pharma. At the time, few people had ever heard of this drug company, but they knew their blockbuster painkiller was going to make them hugely wealthy. In just 15 years,

Its profits from Oxycontin had topped more than $3 billion a year. According to data from the Centers for Disease Control, 91 Americans die every day from overdosing on opioids, in the form of both prescription drugs and drugs like heroin. But now opioid painkillers are becoming one of America’s people killers. The opioid painkiller Oxycontin was approved by the FDA in 1995, and made its way onto the market in 1996. That first year it pulled in $45 million in profit for Purdue Pharma. At the time, few people had ever heard of this drug company, but they knew their blockbuster painkiller was going to make them hugely wealthy. In just 15 years, its profits from Oxycontin had topped more than $3 billion a year. While Purdue was busy counting its cash, it completely tried to avoid counting the dead bodies its product was leaving behind. But Oxycontin was just one out of several opioid-based drugs on the market that were getting patients addicted and ultimately causing their deaths. In no time at all, Purdue’s competition entered the opioid painkiller market, and we soon saw these addictive pills being pushed by Pfizer, Johnson & Johnson, Teva, and countless others. They became FDA approved addictive drug pushers almost overnight. So it’s no surprise that in the years since 1999, prescriptions for opioids have quadrupled in the United States, and not surprisingly, deaths from prescription painkillers have also quadrupled — again, an average of 91 Americans die every day from an opioid overdose. It’s that spike in deaths that has created a new wave of lawsuits against the drug companies that I just mentioned. According to lawsuits that have been filed by the state of Kentucky, the city of Chicago, and a handful of other counties across the country, these corporate drug hustlers

clearly knew about the addictive qualities of their drugs; they knew that overdoses and death were overwhelmingly common; but they did absolutely nothing to warn the public about what their own data was showing. The lawsuits show that as a result of drug companies withholding information, the cost of hospitalization, ambulances, and treatment fell on the cities and states, and therefore the drug companies need to pay back that money. The lawsuits also show that these drug companies engaged in consumer fraud, misrepresentation, false statements, false claims, insurance fraud, and unjust enrichment. But Big Pharma had other plans for dealing with their self-created opioid problems. Anytime there is an ugly epidemic of death in the United States, even one created by Big Pharma, you can bet that drug company executives are working on a way to profit from it. And that’s where the prescription painkiller story takes an interesting turn. Recognizing that the corporate driven drug abuse problem was getting out of hand, the drug Suboxone was created. Its purpose was to wean people off of their painkiller and heroin addictions. Suboxone combines an opioid painkiller with a drug that causes intense withdrawal effects. The idea is to break the addiction because the body begins to associate painkillers with negative symptoms. Indivior, the maker of Suboxone, is now the target of lawsuits brought by 35 state attorneys general for illegally blocking competitors from entering the market. So not only did Big Pharma bring us the opioid epidemic, but they also created the cure and then tried to block cheaper alternative drug therapies from entering the market. Exactly the kind of conduct we’ve learned to expect from the 21st century drug cartel. n

“Congress does have the power to investigate, primarily through the Senate Select Intelligence Committee. Members have been looking into the Trump team’s contact with Russia — as a campaign, and later as an administration — after numerous members reportedly talked with members of the Russian government.”

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President Donald Trump is asking Congress for a probe of leaked, classified intelligence information. He has been President of the United States for less than two months, but it already seems like there has been an entire administration’s worth of leaks, mostly linking his campaign officials to Russia. It’s impossible to know exactly where these leaks are coming from, since they are all anonymous, but much of this information could only have come from insiders within the intelligence community and Trump says he believes it’s undermining national security.

While these leaks may be exposing potentially criminal behavior by government officials, by having all of this disclosure happen behind the scenes, there should be a growing concern about having intelligence agencies dictating public policy. The dangers of giving too much power to the intelligence community was first exposed in 1975 when a U.S. Senate Committee chaired by Idaho Senator Frank Church outlined many of the abuses of power that had taken place in the previous decades by the CIA, NSA and FBI. Since then, the job has primarily fallen to the Senate Intelligence Committee to oversee these agencies and make sure that the intelligence community does not circumvent the checks and balances built into the three branches of government model enshrined in our constitution. The primary role of the intelligence community is to support the White House, since it sets the national security and foreign affairs agenda. Congress and the judicial branch have affirmed the executive branch’s lead role for conducting national security affairs numerous times. Furthermore, the White House can limit congressional influence in the domain of national security and intelligence.

In this case, members of the White House and its administration are the focus of investigations by the intelligence community, and some information that is being leaked to the press. There are those who argue that is acceptable because openness is a tenet of democracy and therefore operations and information must be openly available to the public. Others question the motive behind the leaks and fear it’s an attempt to control foreign policy and recreate a Cold War relationship with Russia that could boost arms sales and financial gain for “warmongers.” Congress does have the power to investigate, primarily through the Senate Select Intelligence Committee. Members have been looking into the Trump team’s contact with Russia — as a campaign, and later as an administration — after numerous members reportedly talked with members of the Russian government. There are also calls for a special prosecutor to be assigned to the case following revelations that Attorney General Jeff Sessions had contact with the Russian ambassador twice during last year’s campaign, meetings he never mentioned, under oath, when questioned about any contact with Russia at his recent confirmation hearings. The Trial Lawyer x 77

It is interesting that the purpose of these intelligence agencies is primarily to support the White House on foreign policy and national security, yet the White House has yet to give any formal direction on foreign policy to either the intelligence agencies or the U.S. State Department. In fact, the White House has yet to fill more than 110 top-level positions within the State Department. As a result, there’s not much information coming from the agency that has historically been the country’s spokesperson to the world and responsible for representing U.S. interests globally. The State Department’s silence and the lack of direction from the Trump administration created a vacuum of information that has caused other countries to speculate and worry about the U.S. as a global leader. Issues like national security are especially troublesome when there is no clear position on where the United States stands on its relationship with Russia, a country under international sanctions for annexing Crimea from the Ukraine in a military invasion, and a dubious ally in the war on terror. In light of this and accusations that Russia interfered with the U.S. election that made Trump president, media leaks related to the Trump team’s contact with Russia could be seen as an attempt to influence and control foreign policy from within the government and/or whistleblowing, with the purpose of determining potential criminal activity by members of the White House. In the 1970s, U.S. Senator Frank Church launched the Church Committee over allegations of abuses of power within the intelligence community, including murder and meddling in foreign affairs. When working as a tool in the president’s tool box, Church was more concerned that powerful intelligence agencies gave a sitting president immense and secretive resources to effectively become a tyrant or a dictator. The issue of media leaks from the intelligence community involving Trump and Russia show a more combative relationship between the executive branch and the agencies meant to be at the president’s disposal. If the barrage of leaks is flowing from the intelligence community, it illustrates Senator Church’s concern that these agencies are immensely powerful and influential when not controlled. However, when the leaked information is about the potential criminal activity of the person who should be directing the intelligence community, motives can be cloudy. Whether the leakers are “warmongers” in the federal government illegally releasing information to undermine the country’s relationship with Russia and further a profitable Cold War agenda or they are well-intended citizens blowing the whistle on potential presidential wrongdoing, the result is federal infighting and a lack of direction, both domestically and internationally, that undermines the checks and balances of the constitution and puts the U.S. position as a global leader in question. n 78 x The Trial Lawyer

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Summit Trial Lawyers

2017 Trial Lawyers Summit Review

Finding ways to top last year’s Trial Lawyers Summit may have been challenging, but organizers rose to the challenge! The 2017 Trial Lawyers Summit was an exciting event, brimming with positive energy, and if you missed it, you missed one monumental good time! But it wasn’t just fun – it was also an unmatchable opportunity to meet, greet and learn from the most celebrated trial attorneys in America! In addition to a huge, festive Super Bowl 51 Kickoff Party, another NFL great, Joe Montana, a four-time Super Bowl champion quarterback and Pro Football Hall of Fame member, was the keynote speaker for the 2017 National Trial Lawyers Awards luncheon. Eagles band member Don Felder also rocked out with some of the band’s greatest hits. This year’s event, held once again at the 80 x The Trial Lawyer

fun and fabulous Loews Miami Beach Hotel from February 5 – 8, was yet another game-winning touchdown for those attending! More than 1,000 people attended this year’s Summit, with perfect weather in the mid-80s and a light breeze off the Atlantic. With top attorneys from across the country sharing expertise and wisdom, and marketing specialists teaching new, innovative ways to improve law firm marketing, the 2017 Summit was a fantastic, energetic and dynamic gathering! Attendees raved about this year’s Summit. “This year’s energy was unparalleled!” said Michelle Swanner, Executive Director of The National Trial Lawyers. Mark O’Mara of The O’Mara Law Group said, “The NTL Summit is, without question, the best gathering

of the finest lawyers in the country. It is three days of learning from, socializing with and networking among the highest echelon of true trial lawyers.” Speaking of law firm marketing, the Personal Injury Lawyers Marketing & Management Association (PILMMA), kicked off this year’s Summit on Sunday with a day-long seminar on ways to sharpen your marketing and take your law firm to the next level. The National Trial Lawyers Executive Committee, made up of the best of the best, also held its annual meeting on Sunday. That was followed by the Super Bowl 51 Kickoff party! If you couldn’t be at the Super Bowl, this was absolutely the next best place to be, watching the big game on a huge screen, surrounded by some of the best trial lawyers in the na-

Concert by Don Felder of The Eagles performing “Hotel California”

Above: Keynote speaker and NFL legend Joe Montana speaking at The National Trial Lawyers Awards Luncheon

Top Right: Summit Attendees celebrate at Super Bowl 51 Kick-Off Party

Prof. Alan Dershowitz, Lifetime Achievement Award recipient Morris Dees, and NTL President-elect Mark Lanier

tion! This year’s party was once again sponsored by Counsel Financial, while Filevine sponsored the open bar. Partygoers watched one of the most exciting and nail-biting games in NFL history, as the New England Patriots came from behind in the second half to win in the Super Bowl’s first-ever overtime, beating the Atlanta Falcons 34-28! Meanwhile, Monday began bright and early with the traditional Early Bird Session on damages. That was followed by a session called “The Entrepreneurship of Law,” always a crowd favorite. At noon, the awe-inspiring and moving National Trial Lawyers Awards Luncheon was held, with NFL star quarterback Joe Montana as the keynote speaker. Heartfelt and touching tributes were made to Tommy Malone, Joe Jamail (1925-2015) and Ted Koskoff (1913-1989), who were inducted into the Trial Lawyer Hall of Fame, while Morris Dees and F. Lee Bailey were given Lifetime Achievement awards, and some of The Trial Lawyer x 81

Tuesday’s Book Signing Lunch

NTL President-elect Mark Lanier accepting Civil Plaintiff Trial Lawyer of the Year Award from NTL Executive Director Michelle Swanner Right: The National Trial Lawyers Executive Committee annual meeting Bottom Right: NTL Past President Mike Papantonio, Trial Lawyer Hall of Fame Award recipient Tommy Malone, and NTL Past President Keith Givens Bottom Far Right: NTL executive committee member Mark O’Mara and Lifetime Achievement Award recipient F. Lee Bailey

Women’s Networking Reception led by Kim Dougherty with keynote speaker and author, Elizabeth Huntley

the speeches brought the crowd to tears. The Civil Plaintiff Trial Lawyer of the Year award was given to Mark Lanier. Lifetime Achievement Award Recipient F. Lee Bailey said, “I found The National Trial Lawyers association to be a delight, with a higher percentage of real trial lawyers in attendance than I have seen in sixty years of lecturing to groups of this specialty. The audiences were attentive, engaged, and their questions were provocative and pertinent. Good Show, as our British Cousins would say.” Monday’s afternoon session began with “Words of Wisdom from the Trial 82 x The Trial Lawyer

Lawyer Hall of Fame,” moderated by former NTL President Howard Nations. Attendees listened to Hall of Fame inductees John Romano, the Honorable Sandra Moss, Steven Yerrid and Michael Burg as they drew upon their experiences and shared their knowledge. Later that afternoon, a good crowd turned out for the ethics presentation. Monday’s session concluded with the Women’s Networking Cocktail Reception, sponsored by Ankura Consulting. Elizabeth Huntley spoke on empowering women in the law, which was followed by a book signing of her latest work,

More Than a Bird. Kim Dougherty of Andrus Wagstaff, PC said, “The highlight of the summit for me (other than the Patriots incredible come back to win the Superbowl), was hearing from Elizabeth Huntley and Gloria Allred at the Women’s Reception. Their words were as inspiring as the important work they are doing on behalf of women and children. The Summit also provided an excellent opportunity to learn from the experts in our profession and to network and build relationships.” The NTL Top 40 Under 40, sponsored by EverConvert, also held its annual meeting and cocktail hour.

Tuesday, the Early Bird morning session focused on discovery. That was followed by the morning session on “Xs and Os From the Courtroom Pros.” The

NTL for Women’s Rights group held a lunch meeting chaired by Gloria Allred and Nathan Goldberg. Also at lunch, Mark Lanier, Mike Papantonio, Michael

NTL for Women’s Rights Meeting chaired by Gloria Allred

Top 40 Under 40 Cocktail NTL Top 40 Under 40 Past President Jonas Seigel and 2017 president Bobby Saadian

Burg, Michael Waddington, Alan Dershowitz and F. Lee Bailey autographed copies of their latest books at an incredibly successful signing sponsored by The Sentinel Group. Mark O’Mara and Eric Romano moderated Tuesday’s afternoon session, called “Trial Practice Takes Miami by Storm.” NTL Past President Mark Geragos and NTL Executive Committee member Mark O’Mara hosted a Criminal Defense Cocktail Hour following the afternoon session. That was followed by the President’s Cocktail Reception sponsored by HMR Funding. Attendees filled the halls and foyer for food, drinks and networking, leading up to the night’s big entertainment: Don Felder of The Eagles, sponsored by Girardi | Keese. Concertgoers raved at Felder’s performance, singing along and dancing to so many songs they knew by heart! Wednesday’s Early Bird Session moderated by John Romano focused on experts. The afternoon session featured “Winning Strategies for Trucking Cases,” moderated by Joe Fried and Michael Leizerman. The trucking session was well organized, very informative, highly entertaining, and definitely held the crowd. Michael Waddington of Gonzalez – Washington, LLC summed up this year’s summit: “Work hard, play hard! That best describes the Trial Lawyers Summit. I’ve been to a lot of CLE events and this event is by far the best. I’ve gone three times in four years. You can’t beat it. If you want to learn from and party with legendary trial lawyers in South Beach, eat awesome food, and enjoy tropical weather, then go. You won’t regret it.” Make plans now to attend the 2018 Trial Lawyers Summit! It will be held February 4-7, 2018 once again at the Loews Miami Beach Hotel. For more information, go to ntlsummit.com. We hope to see you there next year for an event you won’t want to miss that will be even bigger and better!

Attendees at the Criminal Defense Cocktail Hour The Trial Lawyer x 83

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.

W W W. T H E N AT I O N A L T R I A L L AW Y E R S . O R G 84 x The Trial Lawyer


MEMBER SPOTLIGHT The National Trial Lawyers: Top 100 is an invitation-only organiza-

tion composed of the premier trial lawyers from across the country who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. It is our mission to promote a unique and professional networking opportunity for trial lawyers, while developing progressive ideas to pursue justice for those injured by the negligence of others, to educate the public about the importance of access to courts that are free of bias and undue influence, and to protect the American right of trial by jury.

Kim Dougherty Andrus Wagstaff, PC

Attribute my success to: I attribute my success to several factors, including an incredibly supportive spouse and family, an amazing group of inspiring women lawyers in Women En Mass and my relentless motivation to effectuate positive change in the world.

First job ever: When I was 12, I used to clean condominiums at a local Cape Cod resort. Proudest moment as a trial lawyer: Receiving the Massachusetts Lawyer of the Year award was one of the highlights of my career, as it validated the work we do every day as trial lawyers on behalf of people who were harmed by corporate malfeasance. I was also very proud to serve as the president of the Massachusetts Women’s Bar Association, which involved testifying at the State House on laws affecting women and children, including equal pay, protecting pregnant workers, criminalizing female genital mutilation and protecting against transgender discrimination in public places.

Notable Verdict or Settlement: In Re New England Compounding Center, steroids injected into people spines were contaminated with fungus causing over 70 excruciatingly painful deaths and over 750 severe cases of fungal meningitis. The company claimed bankruptcy on our fourth day of inspecting the filthy facility. Despite the bankruptcy, we were able to claw back multiple millions of dollars and settled with the company and other related defendants for over $200 million. I have also reached multiple millions of dollars in settlements with manufacturers of transvaginal mesh on behalf of my clients. Fantasy job: I used to sing in a band, and some days going back to it seems tempting. It would probably be more of a country and blues band than rock and pop, but there would be some crossover. Guilty pleasure: Being woken by my kids climbing in bed with me on the weekends, and just cuddling with them watching cartoons.

What I like to do in my time off: I love spending time at the ocean and on the beaches of Cape Cod with my family and friends. Whether it be boating, tubing, swimming, clamming, fishing, making sand castles, or just relaxing on the beach, that is what I enjoy most when not working. We also enjoy traveling and exploring new places when we can get away. One word that describes me: Passionate What keeps you awake at night? Impending deadlines and the Trump Administration. What paper do you generally read daily? Boston Globe. What is your advice for a young attorney? The professional advice I would give to young attorneys is... do what makes you happy. In order to be happy, you will need to litigate cases that you find meaningful and do it with passion and dedication that will result in you representing your clients to the best of your ability. In order to be happy, you will need to take chances on yourself and not be complacent. To be happy, among other things, you will need to surround yourself with the right people who will support you and who are like-minded in their goals. The Trial Lawyer x 85

Dustin B. Herman Spangenberg Shibley & Liber LLP TOP 40 UNDER 40

The National Trial Lawyers: Top 40 Under 40 is a new organization established specifically to recognize America’s top young trial attorneys. Membership into The National Trial Lawyers: Top 40 Under 40 is by invitation only and is extended exclusively to those individuals who exemplify superior qualifications, trial results, and leadership as young lawyers under the age of 40.

First job ever: Busboy, age 14. Through high school and college I also worked as a car washer, oil change technician, construction worker, fork lift operator, waiter, bouncer, bartender, oyster shucker, and lumberjack/ tree climber (seriously). Proudest moment as a trial lawyer: When I am sitting with clients at the end of a long road and we are finally able to give them a check. It usually comes with a tearful embrace, sincere appreciation, and a story of how the recovery is going to change their lives. It is so emotional every single time. Most recently, our client — a truck driver who lost his right leg after getting run over by a forklift — told us how he was able to buy a car and get a left foot accelerator installed on it so he could finally get behind the wheel again. He was overjoyed just to be able to take his wife out to dinner. Those moments are why we do what we do. Attribute my success to: My parents, my mentors (special shout out to John Romano), and relentless hard work.  

members are striving to build law practices

Notable Verdict or Settlement: My first trial with John Romano, Liz Zwibel, and Doug Beam — we got a $28.5 million verdict in a traumatic brain injury case. I carried a brief case better than you’ve ever seen.

which encompass the knowledge, skill, experi-

Fantasy job: Stand-up comedian

Each of our distinguished 40 Under 40

ence and success held by our Top 100. Yet, we recognize that our goals cannot be obtained without a mutual fellowship, a free-flowing exchange of knowledge among lawyers of our generation, and an aggressive stance against those attacking our profession. It is our mission to promote a unique and professional networking opportunity for young lawyers, while developing progressive ideas to pursue justice for those injured by the negligence of others, to educate the public about the importance of access to courts that are free of bias and undue influence, and to protect the American right of trial by jury!

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Guilty pleasure: Sweets. Any will do. What I like to do in my time off: Fishing, diving, spearfishing, snowboarding. One word that describes me: Enthusiastic! What is your advice for a young attorney? If you love what you do, you never work a day in your life! For a longer answer, see the “rap” video I made a couple years ago for a Florida Justice Association young lawyer contest. We had to answer the question: “What does it mean to be a trial lawyer?” Just search my name on YouTube. It’s called “The Trial Lawyer’s Creed.” What was your most embarrassing moment in life? That’s a hard one, but I guess this story will do: I was spearfishing off the coast of West Palm Beach, Florida when I must have kicked a man-o-war and the tentacles got wrapped all around my ankle. (If you don’t know, a man-o-war is much different than a jellyfish — and they are no joke.) I got back on the boat, but I went into full blown anaphylactic shock. So here comes the embarrassing part — as we rushed back to shore, my buddies took turns trying to pee on my leg. All but one got stage fright. The worst part was finding out later that that’s only a myth and might actually cause more venom to be released. Real great! My buddies make sure to text me the pictures every now and then just as a reminder.


ADAM LEVITT and BUENOS AIRES By Cathy Deloney Corbo

Question: You have successfully led numerous class and complex litigation cases in both state and federal courts and have recovered billions of dollars for clients, class members and other claimants, so where do you spend your favorite vacation getaway? Answer: For Traveling Trial Lawyer Adam Levitt, Buenos Aires is his favorite “go to” place. Adam — formerly a Grant & Eisenhofer partner and currently a founding partner of DiCello Levitt & Casey LLC (www.dlcfirm.com) — explains his favorite things to do while in Buenos Aires. “Walking around Palermo, including the Botanical Gardens, the consulate area and the zoo, although as I understand it the zoo closed in 2016 and is being converted

into an educational eco park and refuge for trafficked animals.” Palermo is the largest neighborhood in Buenos Aires and one of its most walkable. It is trendy, slick and expensive with exploding development in the last 15 years. There are so many cafés and restaurants, bars and nightclubs, museums and galleries, parks, shops and artisanal markets. Palermo is a destination for foodies, art

fans, shopaholics, revelers and a melting pot of culture and coolness. Based in Chicago, Adam is annually recognized as an Illinois Super Lawyer and has been acknowledged by Lawdragon as one of the 500 leading lawyers in the United States. He continues with some of his favorite things to do, “I also never miss the Israeli Embassy Memorial garden in Recoleta, The Trial Lawyer x 87

commemorating the 1992 terrorist attack on that embassy; the AMIA building in Once, which was the subject of another attack in 1994; and the weekend antique market in San Telmo.” It is also known as a street fair because there is a lot to see and do at this colorful bohemian neighborhood’s biggest attraction, and it’s a great place to find traditional souvenirs. Adam is president of the Class Action Trial Lawyers Specialty Association of the National Trial Lawyers (NTL). He also serves as an NTL Executive Committee Member. He talks about favorite restaurants and foods: “While there are actually too many to count, since Buenos Aires is arguably a top five food city, two come to mind. First, Piegari, my favorite Italian restaurant is there. Second, Casa Saltshaker, a private restaurant in a Barrio North Apartment. It was one of the best dining experiences I’ve ever had.” Adam is an Advisory Council Member at the Duke Law Center for Judicial Studies, also a member of the Board of Advisors for the Chicago Chapter of the American Constitution Society for Law and Policy and an Advisory Board Member of the Institute for Consumer Antitrust Studies. He expresses why Buenos Aires is his favorite: “Because it feels like a European city but with the really vibrant South American energy that brings it to a whole

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different level. The food is great, the cultural offerings are comprehensive and everyone’s beautiful. My favorite activity is just walking. Buenos Aires is a great walking city, with something to see on virtually every block. Also if you like vacationing in large cities, which I do, there I always something to do or see, the crush of the people in the main areas always keeps things interesting. In a city as large and sophisticated as Buenos Aires there’s always something to see and do.” Adam, named Litigator of the week by American Lawyer Magazine, lists his favorite hotels in Buenos Aires. “Park Hyatt, the Four Seasons, The Alvear Palace and The Faena Hotel,” he says. The Alvear Palace Hotel is a magnificent five-star awarded hotel in the most elegant neighborhood. The best restaurants, cafés, antique shops and boutiques as well as main museums and cultural centers are there. The Faena Hotel marvels all with its distinct vanguard vision of the future Faena Art District. It is an eclectic boutique hotel located in a very chic and elegant area. Adam speaks and writes on a variety of topics relating to class actions and other litigation-related issues and has been widely published. He recommends, “Try to plan side trips to other places when you are there like Bariloche assuming you are there for a sufficiently long time.” Bariloch is a city situated in

the foothills of the Andes on the southern shores of Nahuel Huapi Lake. The city emerged as a major tourism center with skiing, trekking and mountaineering facilities. It has numerous restaurants, cafés and chocolate shops. During the summer tourists flock to the beautiful beaches of the lake, but only the brave will venture into the cold waters chilled by the melting snow. Adam shares, “My favorite memory of Buenos Aires comes from the first time I was there with my wife. We had been dating a very short time when I somehow persuaded her to travel 6000 miles with me to a city where she didn’t know anyone and didn’t speak the language. Couple that with the fact that the drive from the airport to the city is a pretty rough ride through some pretty suboptimal areas, I could only imagine what was going through her head. That being said, once we hit the underpass that brings you into the city via Avenida 9 de Julio (the widest street in the world), she realized that where we started the ride and where we ended the ride were two vastly different things.” This Traveling Trial Lawyer probably can now easily persuade his wife to return to his favorite vacation getaway, Buenos Aires.


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EMC Advertising


Simmons Hanly Conroy, one of the nation’s largest mass torts firms, is pleased to announce that the Illinois Super Lawyers has rated five of the firm’s shareholders as among the top attorneys in the state for 2017. The firm’s honorees, who all are listed for their work in Personal Injury – Products: Plaintiff, are Chairman John Simmons, Managing Shareholder Michael J. Angelides, and Shareholders Perry J. Browder, Brian J. Cooke and National Trial Lawyers member Randy S. Cohn. Cohn has been listed as a Super Lawyer since 2015. He oversees a team of attorneys and investigators with an exclusive focus on helping victims of asbestos exposure. Since joining the firm in 2004, he has recovered more than $100 million on behalf of families throughout the country injured by mesothelioma and asbestos-related diseases. Previously, he focused his practice in aviation litigation and also has experience in securities litigation, as well as complex financial and business legal matters. Cohn earned his law degree from the Illinois Institute of Technology Chicago-Kent College of Law and his Bachelor of Arts from Indiana University.

Romanucci & Blandin, LLC of Chicago is also pleased to announce that National Trial Lawyers members Antonio M. Romanucci and Stephan Blandin, principals and partners in the firm, have been named “Top 100” lawyers by SuperLawyers magazine. This is the 11th consecutive year Romanucci has been recognized as a ‘Top 100’ and the 13th consecutive year he has been selected to the list of Illinois Super Lawyers. 2017 marks the 13th consecutive year that Blandin has been recognized as a Super Lawyer. In addition, National Trial Lawyers member Frank A. Sommario, a partner in the firm, has also been recognized as a 2017 Illinois Super Lawyer. Only the top five percent of all attorneys in Illinois are selected as Super Lawyers each year. Published by Thompson 90 x The Trial Lawyer

Reuters, Super Lawyers rates attorneys based on peer nominations and evaluations, as well as independent research. Lawyers are ranked in more than 70 practice areas and are selected in all 50 states and Washington, D.C. Attorneys cannot nominate themselves and cannot pay to be included on the list. The Illinois Super Lawyers list is published in the Illinois Super Lawyers magazine and in Chicago magazine. For more information, visit www.superlawyers.com. The Law Offices of Michael T. van der Veen in Philadelphia is pleased to announce that its founder, National Trial Lawyers member Michael T. van der Veen, was named in the December 2016 issue of Suburban Life Magazine as a “Justice Seeker” and 2016 Top Attorney, who readers of the magazine turn to in “times of dire need” for assistance in the area of personal injury law. Suburban Life is a “series of monthly magazines in Bucks, Montgomery, Chester and Delaware counties. National Trial Lawyers member Barry Strutt secured a $20 million settlement in January for a 19-year-old worker who suffered a severe traumatic brain injury following a trial that lasted six days. Strutt, a partner in Keegan, Keegan & Strutt in White Plains, NY, announced the settlement for Paulo Suarez, who sued Harrison & Burrowes Bridge Constructors, Inc. and PCI Industries Corp for a violation of New York labor law. The lawsuit arose from injuries Suarez sustained in July 2011 while working on a bridge rehabilitation project that involved the replacement of steel bearing plates on an Interstate 287 overpass in Rye, NY. According to court documents, Suarez’s co-workers improvised a method of lifting the steel bearing plates up a steep slope using a garden cart and a truck. A carpenter for the contractor had threaded a nylon rope through a “comealong” hook – a ratcheting pulling device with hooks on both ends — and attaching the rope to the handle of the cart on one end and to the bumper of the truck at the other end. The rope was wrapped around a concrete pole at the bottom of the slope before it was attached to the truck so that as the truck moved parallel to the slope, the cart was raised “up the slope.”

The come-a-long “snapped” during a “hoisting” or “lifting” operation, striking Suarez--who was shepherding the cart up the slope—in the head, rendering him unconscious and causing him to roll down the slope. Suarez suffered severe traumatic brain injuries (TBI), requiring the appointment of a guardian, his father, Roberto Suarez. As a result of the TBI, Paulo Suarez had no memory of the accident. Suarez remained in an induced coma for about a month following the incident. After being discharged following a five-month stay at two hospitals and undergoing rehabilitation therapy, the younger Suarez was hospitalized twice for depression in 2016. As a result of his workplace injury Suarez claimed that he suffered respiratory failure; a coma; a severe traumatic brain injury with subarachnoid hemorrhage and a diffuse axonal injury; all of which resulted in residual, permanent cognitive, memory, and behavioral (psychological and psychiatric) impairments, including but not limited to an adjustment disorder and bi-polar mood disorder, with manic and psychotic features secondary to traumatic brain injury and exacerbated by the side effects of necessary mood stabilizing medications, left-sided weakness and generalized slowing; ventilator associated pneumonia; dysphagia; multi-facial trauma including a comminuted right mastoid fracture; a right mandible fracture with right parasymphyseal fracture requiring jaw wiring; a resultant right facial droop and facial deformity; an avulsion fracture which nearly took off his ear; a temporal bone fracture; Achilles lengthening procedure; spastic right hemiparesis; spasticity of the right upper and lower extremities; a permanent, resultant right hemiparetic gait; botox injections for spasticity; persistent and often incapacitating tremors of the upper and lower extremities, and a urinary tract infection. Because of his permanent disability, Suarez will require care and treatment throughout his life expectancy of more than 50 years.

Suarez had initially sued the state of New York in the Court of Claims based upon the State’s ownership of the property where the accident occurred, and sued the general contractor and subcontractor shortly after that in the Westchester State Supreme Court. Further, because case law determined that while Suarez could obtain more than one verdict (but only one satisfaction), he would necessarily be required to accept the lower of the two potential verdicts, it was in Paulo Suarez’s best interest to take a damage verdict in the Court of Claims and dismiss a direct action in Westchester Supreme Court. In August 2016, Suarez sought permission from the Guardianship Part to discontinue the Supreme Court action against all the direct defendants (Harrison & Burrowes and PCI, Industries) with prejudice in the Westchester Supreme Court action and take a damage verdict in the Court of Claims, noting that a decision on damages from the Court of Claims could be entered as early as October or November 2016. In March 2016, the defendants proposed a mediation involving off of the parties in both the Supreme Court and Court of Claims actions. Suarez’s attorneys reduced their initial demand of $22 million to $18 million after two days of mediations. The defendants offered $9.5 million, which was rejected. A trial then began in the Court of Claims on July 25 and ended on August 8, 2016. At the close of trial, the Court of Claims asked for written summations due 30 days after receiving a copy of the court transcript. The defendant State and claimant submitted their written summations on October 25, 2016. Shortly thereafter, defendants collectively asked for a global “settlement” conference before the judge in the settlement part after the pending Supreme Court case had been set for trial on or about January 31, 2017. Plaintiff-claimant indicated at the settlement conference that the demand was now $22 million

pursuant to the terms set forth in the previous letter. The presiding judge of the Settlement Part recommended $20 million dollars and several other conferences were held. On November 3, 2016, a provisional settlement was put on the record indicating that a global settlement had been reached and that it would, by its terms, pay plaintiff-claimant $20 million pursuant to a set time table. That global settlement was contingent upon final approval by the Guardianship Part, which occurred on January 12, 2017. (There was a very substantial Workers’ Compensation Lien at play. The terms of the final settlement, however, including the names of the insurance companies and the apportionment of payments by the parties and insurance companies are strictly confidential.) **Correction from our last issue: In our Raising The Bar column about NTL Member Brian Hurst of Beutel Hurst Boleky LLC, we published a photo of Brian J. Hurst from Hurst, Robin & Kay, LLC. The photo below is NTL Member Brian Hurst of Beutel Hurst Boleky LLC.

The Trial Lawyer x 91

NTL April 2017(1).pdf



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THEGOOD,BAD,UGLY By Farron Cousins





The American Civil Liberties Union (ACLU) is just three years shy of celebrating its 100th birthday. And at the age of 97, this vital legal organization is showing absolutely no signs of slowing down. If anything, the non-profit is more active than ever. The ACLU has always been at the forefront of protecting the basic constitutional rights of American citizens, and even though some of the defenses that they’ve provided have made people uneasy (such as their defense of pedophiles), they’ve filled a dangerous void in the United States by taking on the legal cases of those who might otherwise never have a voice. And since Donald Trump was sworn in as the 45th President of the United States, they’ve given a voice to millions of Americans who refuse to sit idly by and watch as our democracy slowly erodes. When Donald Trump signed his first “Muslim ban” executive order, it was the ACLU that immediately filed legal challenges against the order, claiming that it violated the rights of individuals because it singled them out for their religion and nothing else. The data showed that the seven countries affected by Trump’s ban had never produced a single person who came to the United States and committed a murder, but that didn’t stop the Trump administration from singling the Muslims in these countries out and effectively banning them from coming into the United States. These legal challenges ultimately led to the Muslim ban being rewritten with softer language, but the ACLU promptly filed another legal challenge to the new ban in early March on the same religious discrimination grounds. But Trump’s Muslim ban had an unintended positive outcome for the ACLU — when it filed its challenges to the order and became one of the most outspoken groups about Trump’s disregard for the Constitution, they received a recordbreaking $24 million in donations in a matter of days. This amount is more than the group’s typical yearly intake, and they were able to receive a year’s worth of funding before the end of January. The donations are still flowing into the organization, and that money is helping to fuel the resistance to Donald Trump and the Republican Party’s assault on civil liberties. We can expect much more from the organization as the year presses on, and that’s a good reason to remain hopeful.

So far, 2017 has been filled with “bans.” We’ve had people like David Duke banned from Twitter; Our president signed a “ban” on Muslims from certain countries from entering our country; And we’ve seen members of the press banned from the White House. But one ban that didn’t garner much attention happened in the state of Nevada, where former Justice of the Peace Conrad Hafen was banned from ever serving as a judge in the state again. Hafen had been in the local news and his name had popped up on a few legal news websites for more than a year before the Nevada Supreme Court decided to ban him from the bench for life. According to filings, Hafen had been implicated in at least four incidents where he let his temper flare and acted in a manner unbecoming of a sitting U.S. judge. The most egregious incident occurred when Hafen ordered a public defender be handcuffed in his courtroom while she was defending a man for violating his parole. Hafen warned the public defender to be quiet while she was arguing the case, and then immediately told a bailiff to handcuff her and place her in the jury box amongst other inmates in order to “teach her a lesson.” It took him a week after this incident to even write a contempt order, which was later tossed out upon appeal. On three other occasions, Hafer sent defendants to jail on contempt charges, but never even bothered to write up those contempt charges. During his hearing before the Nevada Supreme Court, as the Huffington Post pointed out, Hafen admitted that he he did not “act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary”; failed to “uphold the law” and perform his duties “fairly and impartially”; and failed to be “patient, dignified and courteous to jurors, witnesses, lawyers, court staff, court officials and others.” So even though Hafen is barred from ever sitting on a Nevada bench ever again, the order only applies to that particular state. Hafen, who now resides in Utah, could seek another seat in a new state, if he were so inclined (provided they don’t bother to do a Google search of Hafen’s name.)

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The Ugly Senate Majority Leader Mitch McConnell said in February 2016, just one day after the death of Supreme Court Justice Antonin Scalia, that he would not allow President Obama to fill the vacancy on the Supreme Court because it was his last year in office. McConnell said that it simply wasn’t right to appoint a Supreme Court justice during a presidential campaign. In February 2017, just one year later, sitting President Donald Trump held a campaign fundraiser in South Florida, a move that signals that he is running for president again in 2020, and that his campaign has already begun. By McConnell’s own logic, he and his Republican colleagues must wait until after the 2020 election to confirm a justice to replace Scalia. If the 2020 presidential campaign has already begun, which Trump’s fundraiser confirms it has, then we have to wait. Of course, that won’t happen. People like Mitch McConnell have no respect for their own words. They don’t believe the things that they say, and they don’t have to. As long as the public buys into their lies then they are free to say whatever they want because few people will come back to hold them to their own words. But the fact of the matter is that the Republican Party, led by people like Mitch McConnell, have been playing a dirty game with the federal court system for years. The refusal of Republicans to give Obama nominee Judge Merrick Garland

a confirmation hearing was one of the more disgusting actions taken by the party, but it certainly wasn’t the only time that they played politics with court appointments. When President Obama left office, he left behind 108 federal lifetime judicial appointments that were still open. Some of these were still vacant because a nominee had not yet been named, others were vacant because Senate Republicans refused to move nominees forward. These vacancies represented one out of every eight lifetime judicial appointments in the United States, and the Republicans were banking on winning the 2016 elections so that they could reshape a huge portion of the judicial landscape. And they got their wish. Only time will tell if President Trump serves a full four years as president or if his constant scandals will cause him to be removed before the end of his term. The Republicans in the Senate, on the other hand, are in a much more comfortable position, as the next round of elections will see far more Democrats up for re-election than Republicans, meaning that a shift in power is unlikely. But if the public’s anger in recent months is any indicator, people like Mitch McConnell who continue to put party over country will be in for some unpleasant election hurdles the next time they hit the campaign trail, and that’s exactly what they deserve.



SAVE THE DATE! Grow your firm, become more profitable, and dominate your market in 2017. Magician David Blaine will headline Thursday night at MTMP Fall 2017. Kareem Abdul Jabbar will be our lunch speaker.


Profile for Wiregrass Living Magazine

The Trial Lawyer, Spring 2017  

A magazine for trial lawyers and a voice for justice.

The Trial Lawyer, Spring 2017  

A magazine for trial lawyers and a voice for justice.


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