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The Trial Lawyer x 3


FROMTHEPRESIDENT

Thomas V. Girardi • President

Many thanks to those of you who commented on my previous message. Those thoughts exhibit the kind of listening and sharing that is so valuable in our legal community. After looking at our roster, one member wrote that he “realized that the best in the profession are in this fine organization.” I couldn’t have said it better myself. In watching the Olympics these past two weeks, it became clear to me how much trial lawyers are like Olympic athletes. In every case, we are going for the “gold.” For each case, we study and train to perform our absolute best in the courtroom against our competition. To be part of this organization, you all have earned at least one gold and are probably on track to earn many more over the course of your career. NTL is proud to be part of those successes as we offer education and networking opportunities for

4 x The Trial Lawyer

our fine members. The annual Summit will be terrific. It is a reward for hard work during the previous year, and an opportunity to train for our future challenges. Like Olympians, trial lawyers have no off-season; we are always training for the gold. The 2016 Summit is committed to offering excellent speakers and vital information on the most significant legal issues of our day. As you are reading this, Summit staff is working diligently on a conference agenda that ensures that each minute will be spent constructively.

Most importantly, perhaps, is the opportunity to be with such talented lawyers, to share ideas and to share friendship. This year will be particularly special because it is my first year as president. I am already looking forward to seeing our members at the Presidential Reception and listening to one of my favorite musicians, Don Felder, former lead guitarist of The Eagles. How fitting it is that one of the best musicians alive will be entertaining the finest lawyers in America.


The

Trial Lawyer

A MAGAZINE FOR TRIAL LAWYERS & A VOICE FOR JUSTICE

www.thetriallawyermagazine.com

Fall 2016 • Volume VI, Number III PUBLISHER Legal Brands, Inc. Keith Givens EDITOR-IN-CHIEF Adair Baine-McDonald EXECUTIVE EDITOR Farron Cousins MANAGING EDITOR Brian McDonald ASSOCIATE MANAGING EDITOR Andrew Findley SENIOR EDITORS Mike Papantonio, Angela Mason, Keith Givens Harlan Schillinger, Michael Burg, Joe DiNardo CONTRIBUTING WRITERS Kelly Anthony, Farron Cousins, Cathy Deloney Corbo, Chauncey DeVega, Joseph DiNardo, Matt Driggs, Richard Eskow, Thom Hartmann, Jim Hightower, Michael T. Klare, Michael Mann, Brian K. Matise, C. Richard Newsome, William Ourand, Sydney Robinson, Martha Rosenberg, Harlan Schillinger 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. VI, No. 3, Fall 2016 (ISSN 2159-7413) © 2016, The Trial Lawyer, Inc. — All rights reserved. Reproduction in whole or in part without permission is strictly prohibited. Application to Mail at Periodicals Postage Prices is pending at Dothan, Alabama, and additional mailing offices. POSTMASTER: Send address changes to The

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Produced and printed in the U.S.A.

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CONTENTS

departments

DOWN TO BUSINESS 10 Ten Ways To Compete In Today’s Legal Marketing Landscape 12 Effective Client Communication FROM THE EXPERTS 14 When Special Districts Go Bad 18 Top 6 Reasons Cases Are Not Consolidated Into A MDL PRODUCT WATCH 22 Self-Driving Cars And The Danger Of Preemption LEGAL BRIEFS 26 Talcum Powder, Failures Of The FDA, Concerta Teen Suicide Link, Big Pharma Price Gouging, Nexium And Prilosec Linked To Kidney Damage, Heart Damage And Bone Fractures MEMBER SPOTLIGHT 85 Dino S. Colombo TOP 40 UNDER 40 86 Stephen J. Burg THE TRAVELING TRIAL LAWYER 87 Larry Jones — Dubai RAISING THE BAR 90 Scott D. Peebles, Brittany A. Boswell, Jared L. Hausmann, Charles Bowen THE GOOD, THE BAD & THE UGLY 92 Voter ID Laws Struck Down Virginia Governor Terry McAuliffe Ohio Judge Robert Milich

features 30 34

38 42 46 50 56 60 64 68 72 76 80

Art Imitates Life In New Legal Thriller By Mike Papantonio The National Trial Lawyers Presents The 2016 Hall Of Fame Inductees Big Pharma Is Bribing Doctors To Push Deadly Drugs What’s At Stake In The 2016 Election Donald Trump And The ‘Decent’ Republicans What’s Next For The Bernie Sanders Revolution? DuPont Cannot EscapeTheir Toxic Legacy Eric Holder’s Brand Of Justice Hooked On Fossil Fuels How The Right Wing Denial Machine Distorts The Climate Change Discourse Republicans Are Waking Up To The Threats Of Climate Change It Is Time To Rein In The Robber Barons … Again The Gun Industry Really Doesn’t Care About Police Deaths


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DOWNTOBUSINESS

By Harlan Schillinger

TEN WAYS TO COMPETE in Today’s Legal Marketing Landscape DON’T LET THE 900-POUND GORILLA ATTORNEY SCARE YOU AWAY.

As a 38-year legal marketing veteran, I’m convinced that there’s no market in America that your law firm can’t go into and get good business from. But to get more — and better — cases, lawyers must step away from the everyday and look at something as big as that monkey’s shadow: the law practice as a whole.

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• Is there a brand and strategic plan for how marketing pieces fit together? • Do you really understand intake? Listen to a call and you will quickly see how you could be doing it better. • Are you taking accountability for your marketing actions by tracking, testing and tweaking? Go Long Where Others Fall Short Sometimes knowing where other lawyers consistently fall short can give you a huge advantage in the marketplace. Drawing on decades of developing relationships with lawyers at some of the largest firms in the country, I have found that law practices, small and large, fail at more than half of the best ways to stay competitive. If you can execute on all ten (or close), I promise you will start to succeed in gaining new business.

1 | Start with a strategic plan. Sounds simple, but this may be the No. 1 downfall in marketing for lawyers. Businesses want to jump in right where they are and incite change going forward. But it rarely works that way. At some point all entrepreneurs must slow down, step back and look at how all parts of the machine churn together to create a more cohesive, universal plan for developing new business. 2 | Line up your resources. Don’t pretend you can do it alone. Pull a team together that’s made up of experts in each element of the strategic plan who will actually help you execute the plan, not just talk about it. Who will oversee TV messaging and implementation? Is there a plan for the intake department? What about database updates, social media, software, etc.?

3 | Shop your competition. You can’t beat ‘em if you don’t know ‘em. And don’t just say you know your biggest competitor — really dig in. Secret shop top lawyers in your community or practice areas. Study, record and analyze all of their marketing efforts, or find someone to help you understand how to do it effectively. 4 | Exploit weak points. In sports, you find your edge in the places where others are weak. When you shop the competition you will quickly find what they are not doing. Then do that! If they’re bad at intake, refine your inbound call and follow-up strategies. If their message is the same as everyone else’s, find a way to say it differently. If their Internet presence is poor, pump up your digital strategy now. 5 | Pinpoint your differentiators. One of the simplest ways to stand out among the competition is to uncover the clear difference between you and every one else — your true 1% variance. Go back to your brand. Have you ever discovered or documented your core brand attributes, the ones that will help you tell and leverage your message unlike any firm in the marketplace? 6 | Understand your target. Are you trying to have one message that appeals to all? Are you even talking to your demographic? If you are an older white guy talking to a younger generation of Hispanics, there’s going to be a disconnect. Dive into the psychographics of your target audiences. You must communicate in a way that’s truly relevant to the people you want to attract. 7 | Match up your messages. Content is still king, and if you’re putting 18

different messages into the marketplace hoping that one will stick, you might just be killing the kingdom. Make sure that all of your message outlets, including broadcast TV, Internet, eCRM and social, are working synergistically, complementing, not just mimicking one another. 8 | Track every effort. The greatest benefit of digital marketing is you can track, test and tweak any marketing campaign you are running through the Internet. This is that accountability piece I mentioned. You cannot measure the effectiveness of your marketing strategy if you don’t track and monitor your online efforts. 9 | Solidify your CRM. All your legal marketing efforts will be for naught if you don’t have an internal system for organizing client communications. Every attorney should have effective, easy-touse customer relationship management software in place to manage the marketing associated with each and every client. 10 | Map the client experience. Being a good lawyer and working hard on your clients’ cases have nothing to do with how you treat your clients or how your clients feel they are treated. Know exactly what happens from the moment a prospect calls your law firm to the months following the closure their case. How are you talking to them, following up, re-marketing, etc.? You must understand the full scope of the client experience — it outweighs everything. What matters is the value of the cases you are asking for and getting. It costs the same to ask for a low-end case as it does for a high valued case. What would you ask a jury for? You get what you ask for!

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DOWNTOBUSINESS

EFFECTIVE CLIENT COMMUNICATION

So You’ve Rounded Up A Bunch Of Mass Tort Cases — Now What? By Matt Driggs As attorneys, we know that it can take years to settle mass tort claims. How do you keep your clients informed, engaged, and pleased with your services during the years of waiting? The first few months may seem easy to stay connected as you gather the basic information, but after that, most firms do little to stay in touch with their clients. Over the years, our firm has received hundreds of callers wanting to hire us because they feel abandoned by their current lawyer. Remarkably, some callers don’t even know if they are still represented because they haven’t heard from their lawyer for months or longer. Here are a few ideas to help you maintain great relationships with your clients. 12 x The Trial Lawyer

Excel In The First Month Clients want to know they are in good hands and that they made the right decision in choosing you to represent them! Clients want to know that you are actively doing something on their case – so tell them. After a client has retained you, tell the client all you have done for them in a quick phone call or email. Tell your client that you have opened a new file, you’ve requested medical bills and records, you’ve begun the claim process, you’ve communicated with the necessary third parties, started drafting the complaint, etc. Any step you have taken is


important to acknowledge. You will also want to share your expertise and experience with your clients and remind them that the case is important. Validate their claim and feelings. The more you explain the steps you have taken, the more secure they will feel about their decision to hire you. Excel early on and you will have a much easier time “wowing” them as the case progresses. Communicate Constantly You should be communicating with your clients at least every 30–90 days. The communication can be in the form of phone calls, letters, or emails. Set expectations early on with your clients regarding the amount of communication they can expect to receive from you. Be sure the set amount is accurate and you’re not over promising something you won’t be able to deliver. The main purpose of these consistent touches with the client is to enhance your client’s confidence in you. Each letter or email should feel personalized even though it will be standardized. Here are a few ideas on the types of letters you may want to send out: • Press releases • Summary of a conference or CLE you recently attended • Updates from the MDL • Updates regarding important events or changes in your law firm • Letters with copies of relevant pleadings The list could go on. The important thing is to communicate often with your clients. Sending out birthday cards or holiday cards are also good ways to send the message that you care about them. It’s personal and will come as a pleasant surprise to the client. Care About The Individuals The more you show genuine concern for your clients, the better the experience with your firm for everyone. People can tell if you truly care about them or if you just care about the big payday for yourself. Develop an office culture of compassion and look for ways to express that concern to your clients on a regular basis. I once heard an attorney say, “A client will never know how well you did for them, but they will always know how they were treated.” Commit to being the law firm that actually cares for each client and shows it. Not only will your clients have a better experience, but you will find so much more meaning in what you do. You will look back and be proud of the way you took care of these wonderful people. These three tips will help you create an office system that goes above and beyond for your client. Excel quickly, communicate constantly throughout the case process, and show your client that you do care. Your communication with your client will help boost the client experience and grow positive reviews for your firm. The Trial Lawyer x 13


FROMTHEEXPERTS

WHEN SPECIAL DISTRICTS GO BAD Recognizing and Fighting Developer Abuse of the Special District Process

By Brian K. Matise • Shareholder at Burg Simpson Eldredge Hersh & Jardine, PC Imagine the ability to create your own government with its own charter and to elect yourself and your friends to run the government in “private” elections. Next, give yourself the power to issue your own tax exempt bonds, to impose taxes that would be paid by unwitting purchasers of property that you already sold, and to control utility fees forever. Imagine further the ability to impose property taxes on entire neighborhoods for the purpose of improving your own private property in a completely different 14 x The Trial Lawyer

neighborhood. Finally, imagine being able to have unfettered access to tens of millions of dollars of government bond funds to reimburse yourself for whatever you choose. Throw in an absurdly short statute of repose — say, 10–35 days — for challenging any improper acts, with a jurisdictional bar on the power of courts to review official acts. Does this sound like a megalomaniac’s dream, a homeowner’s nightmare, an abomination to democracy, or all of the above? Actually, the above scenario describes

special districts as they exist in some states. Special districts are a form of local government that is gaining popularity in many states as a tool for developers to finance infrastructure such as streets, water, sewers, parks, recreational facilities, and landscaping. Special districts are creatures of statute, and therefore they will vary from state to state in terms of their powers and organizational procedure. However, most special districts share certain powerful features:


1) The ability of property owners to create districts by petition: In Colorado and many other jurisdictions, a developer that owns raw land may petition the county or municipality in which the land is situated to create a special district. A “friendly” municipality may approve the creation of the district with little oversight, in the belief that it will generate additional economic activity and taxes without imposing the cost of the infrastructure on the municipality. Accordingly, municipalities may view the special district proposal as an opportunity for “free growth” and jobs without scrutinizing whether the charter or service plan is fair to homeowners, or would result in unsupervised domination by the developer. 2) The ability to issue tax-free bonds: In most jurisdictions, special districts have the ability to issue bonded indebtedness. As political subdivisions of the state and quasi-governmental entities, the bonds are generally exempt from federal taxes. The bonds may also be secured by either property taxes or utility fees, and therefore are relatively secure. These attractive features give the developer access to the municipal bond market, allowing long-term borrowing to finance a development at incredibly cheap rates. One might say that a charter to create a special district is the closest thing to the Federal Reserve in terms of being a license to print money. 3) The ability to impose ad valorem property taxes and fees: Most special districts have the power to impose property taxes on all property within the district. In those states that require voter approval of taxes and bonded indebtedness in advance, the original developer that organizes the special district often votes at an organizational election to authorize astronomical amounts of debt (up to a billion dollars of debt for a subdivision of 1,000 homes might not be out of the question) and extreme mill levies (perhaps totaling hundreds of mills of debt, or 10% or more of the property value per year in property taxes might be authorized).

4) The ability to provide extraterritorial utility services: This is a controversial power, but nonetheless it is commonly granted. A special district that provides water and sewer service, for example, might be able to serve homes outside the boundaries of the district by installing the water and sewer lines to neighboring communities. It might make economic and practical sense for a city to provide water or sewer service to unincorporated areas just outside the city limits. But taken to the extreme, it can result in a developer owning just a tiny uninhabitable “postage stamp” district yet controlling the water and sewer service of tens of thousands of homeowners tied in to the water system. A developer could theoretically control water and sewer fees for a neighborhood forever, with no recourse. Recognizing Developer Abuses Of Special Districts Special districts play an important role in many communities, and provide important services particularly in rural areas outside the boundaries of municipalities. But the broad powers given to special districts invite developer abuse. The first step in combating abuse is to recognize it. Often, it is difficult to recognize special district abuse because the statutory scheme is complex and the districts are often managed and controlled by developers without public scrutiny. Some of the signs of abuse to be aware of includes: 1) Including property in a special district solely to tax it: Often, special districts are created to fund infrastructure in an undeveloped piece of land. So-called “dirt districts” are created before there is any significant development, where there is only raw land and no residents. The developer is the sole property owner. In that case, there may be nothing wrong with the developer creating a district and imposing taxes on land that the developer owns. But in some instances, the developer may develop and sell property in one subdivision, and then include that property in a special district

solely to develop a separate subdivision. Including property in a special district solely to tax it, without any possibility of a benefit, abuses the special district process and raises due process concerns. 2) Selling Homeowner Association Common Elements to a Special District: Special districts have many similarities to homeowner associations. Often, special districts may provide landscaping, parks, and recreation facilities for condominiums and subdivisions that are similar to “common elements” of homeowner associations. But there are important differences. Common elements of homeowner associations are privately owned by the association. Common elements are also paid for by the developer, included as part of the purchase price of each unit in the association. By contrast, a special district is a public entity and its facilities must be made available to the public. Special districts typically reimburse developers for infrastructure through issuance of bonds, which may require up to 30 years of higher taxes to be imposed on the owners. During the housing crisis of 2007–2012, many developers were desperate for cash. In some cases, property that was dedicated to the homeowner association as common elements instead may have been sold to a special district and the developer reimbursed by the special district. If the homeowner association was created and condominiums or homes had been sold before the transfer, the sale of homeowner association common elements to a special district could constitute theft or conversion of HOA property by a developer. 3) Creating “Postage Stamp” Service Districts Perpetually Controlled by a Developer: In some states, special districts may provide services outside their boundaries. Water and sewer service districts are common examples. While it may be practical and efficient for a municipality or district to provide service outside its boundaries, this can be taken to an extreme by some developers. In Colorado, it has become increasingly The Trial Lawyer x 15


popular for developers to create “postage stamp” sized districts, often consisting of as little as a 10-foot by 10-foot parcel of land. There can never be any residents of such a district, and the developer may own all of the property in the district indefinitely. As the only resident or property owner in the district, the developer will cast all of the votes and be able to control the district. If that district in turn provides water and sewer service to large neighboring subdivisions, the developer can issue bonds, reimburse itself for all of its spending without any accountability, and set water and sewer rates at whatever level it decides, potentially forever.

even jurisdictional bars on the power of courts to review certain actions. Accordingly, challenging abuses requires special expertise navigating these issues. Homeowners who are the victims of special district abuse initially should determine whether they can be elected to the governing body of the special district. Specials districts are government entities, and often have their own election code allowing residents or property owners to self-nominate themselves for election to the board. Electing a homeowner to the board can be the most efficient way of learning about abuses early, gaining access to information, and potentially correcting abuses. Strategies For Fighting Developer Constitutional due process may Abuse be used to fight some of the more egregious abuses. The Burg Simpson Special districts are often provided law firm recently represented a high-rise statutory protections such as condominium homeowners’ association governmental immunity, short statutes which was included in a special district of limitations to challenge actions, and solely to provide a tax base that could support bonds used to provide funding for streets, water, sewers, and landscaping for a proposed new subdivision. Medical Records Landmark Towers Ass’n v. UMB and Summary Services Bank, et. al., in one easy, affordable package. 2016COA61, __ P.3d __ (Colo. App. April 21, 2016). Under a 100-year old Supreme Court case, Myles Salt Co. v. Iberia & St. Mary Drainage Dist., 239 U.S. 478 (1916), including property in a special district solely to provide MEDICAL RECORDS RETRIEVAL a tax base without RELIABLE. FAST. EFFICIENT. any possibility of benefiting the property violates (888) 963-3739 • www.MedRecExpress.com due process. 16 x The Trial Lawyer

State constitutional protections may be available to challenge developers who seek to disenfranchise property purchasers. In many states including Colorado, taxpayers have a constitutional right to vote on bonded indebtedness or property taxes. See, e.g., Colo. Const. Art. X Sec. 20 (Taxpayer Bill of Rights). If developers sell new homes or condominiums under contracts to purchase, but create a special district before the property sale closes, the new purchasers who are under contract to pay the property taxes may have a constitutional right to vote. Property owners may also have the right to challenge or void developer contracts under contract theories. These may include sham contracts, which are contracts between developers and board members that are not intended to be binding, but instead there is a side agreement not to enforce the contract. In the Landmark Towers case, contracts used to qualify developer affiliates as board members were held to be sham contracts because there was no intention for the board members to ever own property or pay taxes. Contracts may also be challenged as void for lack of consideration if they are not enforceable. Burg Simpson has also successfully voided reimbursement contracts between developer-controlled districts and developers due to conflicts of interest. See North Pines Metropolitan Dist. v. Gertz et. al, No. 10CA86 (Colo. App. Sept. 8, 2011) (unpublished). Conclusion Special district law is fraught with perils, including arcane legal protections that seek to immunize developers from wrongdoing. But once these abuses are identified, skilled trial lawyers familiar with this area of the law may be able to provide homeowners with effective remedies.


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FROMTHEEXPERTS

TOP 6 REASONS CASES ARE NOT CONSOLIDATED INTO A MDL By Joseph DiNardo, Esq. and Kelly Anthony, Esq. • Counsel Financial The seven-member Judicial Panel on Multidistrict Litigation (“Panel” or “JPML”) has broad power to transfer cases with one or more common questions of fact into a single court for pretrial proceedings. It is well-known, however, that the Panel will deny 18 x The Trial Lawyer

transfer of cases if it determines that centralization is not necessary to serve the convenience of the parties and witnesses, or to further the just and efficient conduct of the litigation. Accordingly, in 2015 the Panel reported that it issued denials in 44% of the motions it had

under review, which was exponentially higher than the previous two years (27% denied in 2013 and 30% denied in 2014). So what factors influence the JPML’s determination that cases are unfit for consolidation? At what


point does the Panel consider it too inconvenient or too inefficient for cases to be centralized? Below is a list of the most common reasons for denial of consolidation within the past year, based upon a review of 25 JPML orders denying transfer. 1) Same attack, but different parties. The Panel has on numerous occasions denied transfer of actions when the named parties varied. For example, in the matter of In re: Cordarone (Amiodarone Hydrochloride) Marketing, Sales Practices and Prod. Liab. Litig., 2016 U.S. Dist. LEXIS 71769 (J.P.M.L. Jun. 2, 2016), a plaintiff sought to centralize actions involving injuries suffered after ingesting the prescription medication amiodarone. While Wyeth, the brand name manufacturer, brought amiodarone to the market, each of the nine actions filed also listed various generic drug manufacturers as defendants. Finding that the defendants differed widely among the actions, the Panel determined that “a significant amount of the discovery [would] be defendant-specific” and “such individualized inquiries [suggested] that centralization would not achieve significant efficiencies” or “serve the convenience of a substantial number of the parties and their witnesses.” 2) The facts are too simple. When it comes to food and beverage marketing and sales practices litigations, the JPML has often held that the questions involved are not sufficiently complex to justify centralization. In one instance, In re: Quaker Oats Maple & Brown Sugar Instant Oatmeal Marketing and Sales Practices Litig., 2016 U.S. Dist. LEXIS 71777 (J.P.M.L. Jun. 2, 2016), a plaintiff attempted to consolidate litigation concerning whether Quaker Oats Maple and Brown Sugar Instant Oatmeal products actually contained maple syrup or maple sugar. Despite no opposition to centralization and the JPML finding that the class actions shared factual questions, the Panel

still ruled that centralization would not further the efficient conduct of a few, relatively uncomplicated cases. In so holding, the Panel stated the cases more closely resembled “the straightforward food and beverage marketing and sales practices dockets that we have declined to centralize than those involving more complex and numerous factual questions that we have centralized.” Nevertheless, the Panel has also denied consolidation of matters into a MDL that do not involve a food or beverage when it determines that the claims are straightforward. In refusing one defendant’s motion to consolidate actions in In re: Credit Prot. Ass’n, L.P., 2016 U.S. Dist. LEXIS 71774 (J.P.M.L Jun. 2, 2016), the JPML asserted that discovery “was unlikely to be unusually burdensome or time-consuming” in actions arising from claims that the defendant placed debt collection calls to consumers’ cell phones without express consent. 3) There are too few cases. The Panel has also frequently cited the involvement of too few cases as a basis to deny consolidation. This is because when there exist only a minimum number of actions, “the proponent of centralization bears a heavier burden to demonstrate that centralization is appropriate.” For example, in In re: Cal. Wine Inorganic Arsenic Levels Prod. Liab. Litig., 109 F. Supp. 3d 1362 (J.P.M.L. 2015), plaintiffs sought centralization of all actions arising from levels of arsenic purportedly contained in wines. Although the Panel concluded that the actions clearly involved common factual issues, it found that informal coordination among counsel was preferable to formal centralization because the motion involved only two actions and concerned only two related actions. Although the JPML noted that the number of actions could expand, it held “the mere possibility of additional actions does not convince us that

centralization is warranted.” 4) Procedurally, the actions are not on the same track. When transfer motions involve actions with substantially different procedural postures, the JPML has routinely denied such motions, holding that consolidation of such matters could delay proceedings in the more advanced cases. In In re: Cymbalta (Duloxetine) Prod. Liab. Litig., 138 F. Supp. 3d 1375 (J.P.M.L. 2015), plaintiffs in two actions moved to centralize 41 actions that shared factual issues concerning defendant Eli Lilly and Company’s development, marketing, labeling and sale of the prescription drug Cymbalta. The Panel issued an order denying the transfer, in part, because of the differences in the procedural status of the cases. Specifically, four of the cases had already gone to trial — with Lilly producing three million pages of documents. In contrast, some of the cases did not even have scheduling orders issued yet. The Panel, in accord with its earlier decision (i.e. “Cymbalta I”), held that centralization was not warranted because the procedural posture varied significantly and informal coordination among the limited counsel remained practicable. 5) The cases involve individual legal or factual issues. The most obvious impediment to consolidation is when the actions involved have specific or distinct legal or factual issues. In this context, the JPML has held that coordination is unlikely to produce significant efficiencies. By way of example, the municipal plaintiffs in In re: Monsanto PCB Water Contamination Litig., 2016 U.S. Dist. LEXIS 47258 (J.P.M.L. Apr. 7, 2016), sought to centralize six actions alleging Monsanto Co., Solutia Inc. and Pharmacia LLC (“Monsanto”), manufactured polychlorinated biphenyls (“PCBs”) between 1935 and 1977 that contaminated certain marine environments. The Panel, in denying the motion, concluded that The Trial Lawyer x 19


the factual questions relating to the purported contamination of each body of water — the San Diego Bay, San Francisco Bay, the Spokane River and Duwamish River — would undoubtedly differ. Further, the Panel stated that the facts relating to regulation “of these waters and plaintiffs’ remediation efforts is likely to differ significantly.” Likewise, in In re: Uber Tech., Inc., Wage and Hour Employment Practices Litig., 2016 U.S. Dist. LEXIS 13289, the JPML claimed that centralization was not warranted with respect to cases against Uber Technologies Inc. because the main issues rested on statespecific legal and factual inquiries, i.e. whether independent contractors are considered employees under each state’s laws. 6) The individual actions involve common legal counsel. Historically, the JMPL has denied consolidation of certain actions when the same firms represent all or many of the parties on one side of the litigation, reasoning that informal coordination is “sufficient to minimize any potential for duplicative discovery and inconsistent pretrial rulings.” In In re: Credit Union Checking Account Overdraft Litig., 2016 U.S. Dist. LEXIS 13962 (J.P.M.L. Feb. 2, 2016), the JPML denied the transfer of 11 actions, in part, because of the similarities of counsel. In its order, the Panel stated that informal coordination appeared practical, “especially given that all plaintiffs are represented by the same two law firms, seven of the eleven defendants are represented by a single law firm, and the other four defendants are coordinating their defense.” Regardless of which particular basis the JPML cites in denying motions for consolidation — differentiation among parties, simplicity of facts, paucity of parties, varying procedural posture, distinctiveness of factual or legal issues, commonality among counsel — the same underlying fundamental analysis applies: will centralization serve the convenience of the parties and witnesses, or further the just and efficient conduct of the litigation? If the answer is arguably “no,” then there exists a higher probability that the Panel will deny consolidation. Citations available upon request.

20 x The Trial Lawyer


EXCLUSIVE ENDORSEMENTS

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PRODUCTWATCH

SELF-DRIVING CARS

AND THE DANGER OF PREEMPTION By C. Richard Newsome Esq. & William Ourand, Esq. • Newsome Melton, P.A.

This May, former Navy SEAL Joshua Brown was tragically killed after his Tesla collided with a tractor trailer in Williston, Florida while in “Autopilot” mode. This is the first known fatal crash involving a vehicle driving itself. Unfortunately, history tells us that this will not be the last. 22 x The Trial Lawyer

Automakers are currently embroiled in a fiercely competitive race towards the deployment of fully autonomous vehicles. As with any new technology, there will inevitably be missteps along the way. Make no mistake — Big Auto and other industry stakeholders

have already deployed powerful lobbyists to promote self-driving car regulations which are favorable to the industry. The very real danger is that they could score a major victory in the form of federal preemption, effectively shutting down state tort lawsuits without even having to even


try a single case before a jury. As such, consumer advocates need to be informed and involved in the process in order to ensure that the injured consumers of tomorrow have their fair day in court. The Rapid Development and Deployment of Self-Driving Cars Ford, Toyota, Volvo, and other major auto manufacturers have all publicly announced their intentions to have self-driving cars available to the public within the next few years. These traditional players have been joined by software giants like Google, Uber, and Lyft in the battle to dominate the autonomous vehicle marketplace. Perhaps unsurprisingly then, a recent industry report projects that as many as 10 million vehicles will have some kind of self-driving feature by 2020. This process is already playing out before our eyes. Today, many cars can park themselves, apply the brakes when they get too close to another vehicle or object, or change lanes while on cruise control. There is no doubt that these types of technological innovations have the capability to save lives and prevent crashes if properly designed and carefully implemented. A self-driving vehicle should theoretically perform better than a human driver if it operates according to a computer code that properly accounts for the surrounding environment and changes in traffic conditions. However, when technology reaches the market before it is ready, software bugs and design flaws may go unnoticed until it is too late. We’ve all had a computer crash unexpectedly. Now imagine if that computer was supposed to be making the call as to when to apply the brakes during rush hour. The crash that claimed the life of Joshua Brown is a prime example of how self-driving vehicle technology can go awry. After news of the crash broke in June, Tesla issued a public statement on its website explaining that: “Neither Autopilot nor the driver noticed the

white side of the tractor trailer against a brightly lit sky, so the brake was not applied.” At the time of this writing, Tesla is reportedly still trying to figure out whether the vehicle’s cameras or radars failed to detect the truck, or whether they confused the truck with an overpass or overhead road sign. Interestingly, on June 28, Tesla CEO Elon Musk tweeted that the vehicle’s “Radar tunes out what looks like an overhead road sign to avoid false braking events,” lending support to the theory that the vehicle may have confused the truck for a road sign. The Current State of the Law on SelfDriving Cars Self-driving car regulation has occurred exclusively at the state level over the past several years. Nevada was the first state to pass self-driving car legislation back in 2011, opening the doors for Google to begin operating self-driving cars on roads within the state. Since then, Nevada has been joined by seven other states — California, Florida, Louisiana, Michigan, North Dakota, Tennessee, Utah, and Washington D.C. — which have enacted their own type of selfdriving car legislation. Additionally, the governors of Arizona and Virginia have both taken action to support the development of autonomous vehicles within their states. Some states, like California, have taken a careful and considered approach, only allowing for self-driving vehicles to be operated as part of a testing program, and further requiring “a driver in the driver’s seat, ready to take control for testing purposes.” On the complete opposite end of the spectrum sits Florida, which recently eliminated the requirement that self-driving vehicles be operated only for testing purposes. Instead, the state now allows anyone with a driver’s license to “operate” a self-driving vehicle for any purpose. Florida law also now loosely defines “operate” to mean turning the autopilot on, “regardless of whether the person is physically present in the vehicle while

the vehicle is operating in autonomous mode.” As a result, a car that is capable of either being remotely controlled or bringing itself to a “complete stop” can now drive itself around the Sunshine State, no questions asked. Moreover, Florida, Maryland, and Washington D.C. have each passed laws absolving vehicle manufacturers from liability in crashes involving vehicles that were converted into being autonomous by a third party. However, these statutes do not absolve the vehicle manufacturer from liability if the car was “designed to be autonomous.” They likewise do not prohibit products liability or negligence actions against the entity responsible for converting the vehicle. The Push for Federal Regulation Industry stakeholders, including the traditional Big Auto players and newcomers like Google, Lyft, and other software companies, have severely criticized the state-by-state approach. In doing so, they invoke a familiar refrain — that a “patchwork” of laws threatens to “stifle innovation.” To solve this problem, they are calling on the federal government to promulgate federal regulations that will ensure consistency across the country. And it looks like they may get their wish as high ranking officials for both the U.S. Department of Transportation (“DOT”) and the National Highway Traffic Safety Administration (“NHTSA”) have promised to publish guidelines sometime this year. The federal guidelines, which remain unpublished as of the time of this writing, were the primary focus of this year’s Autonomous Vehicle Symposium in San Francisco, California. Our law firm attended this symposium in the hopes of finding out what consumers could expect to see with the new “guidance” — which NHTSA was expected to announce at the symposium. Although NHTSA did not announce the guidelines last week as expected, DOT Secretary Anthony Foxx announced that the guidelines would be The Trial Lawyer x 23


published before the end of the summer. Unlike the statutory rulemaking process NHTSA typically uses for new auto technologies, NHTSA has elected to not involve consumers or safety advocates in the “process” for developing the new guidelines for autonomous vehicles. The agency did, however, consult with industry stakeholders while working on the guidelines over the past several years. During the symposium, DOT Secretary Foxx and NHTSA Administrator Mark Rosekind made it clear that the Obama administration is solidly behind autonomous vehicles because they believe the technology may save thousands of lives each year. According to Rosekind, NHTSA’s research shows that autonomous cars might eliminate as many as 19 out of every 20 accidents. With respect to content and scope, Rosekind indicated the guidelines will likely contain some type of model state legislation and regulatory language to avoid having different rules enacted in different states. DOT Secretary Foxx also indicated the guidelines will probably include a presale approval process for production autonomous vehicles. The Danger of Federal Preemption Over the last few decades, the United States Supreme Court has established a federal preemption doctrine that has permanently barred the courthouse doors to countless injured consumers and their families. This doctrine notoriously reared its ugly head in Geier v. Am. Honda Motor Co., Inc. — a 2000 decision in which SCOTUS held that so-called “no airbag” products liability cases are preempted by federal “objectives,” which the court discerned from comments the DOT made back in the 1980s. SCOTUS struck again a few years later, holding that the Food and Drug Administration’s premarket approval process preempted state tort claims against a medical device manufacturer in Riegel v. Medtronic, Inc. This precedent creates a significant danger for consumers given 24 x The Trial Lawyer

the possibility for significant federal involvement in the design, manufacture, and deployment of self-driving cars. Of course, the industry is wellaware of its opportunity to score a major preemptive strike against the products liability plaintiffs of tomorrow. Back in 2009, the RAND Corporation released a report entitled Liability and Regulation of Autonomous Vehicle Technologies. In that 2009 report, the authors posit that “manufacturer liability is expected to increase” with the advent of selfdriving cars, and that “this may lead to inefficient delays in the adoption of these technologies.” One of the potential solutions discussed in the report is “regulatory preemption — requiring manufacturers to incorporate the mostpromising forms of this technology by regulatory fiat but simultaneous exemption of the manufacturers from state court liability.” The 2009 report also determines that, assuming autonomous vehicle regulations are promulgated, “it is likely that state tort law claims that were found to be inconsistent with the objective of the regulation would be held preempted under the analysis used in Geier.” The risk of preemption is further magnified by the fact that President Obama will be leaving office in just a few months, and we have no idea what the executive cabinet is going to look like three of four years from now. As stated above, NHTSA elected to issue guidelines this year, which are nonbinding in nature. Should NHTSA later decide to initiate the rulemaking process to create binding federal rules while under pro-preemption leadership, the agency could lay the groundwork for sweeping victories by Big Auto. For instance, the agency may include express preemption language, or alternatively, provide mere commentary, ala the Reagan-era DOT comments relied upon in Geier. Additionally, should some future administration promulgate binding rules requiring pre-sale approval, defendants may attempt to avail themselves of the types of arguments advanced by the medical device and

pharma defendants in cases like Riegel. As we saw in both Geier and Riegel, the ultimate success of those preemption arguments might hinge largely, or even entirely, upon the specific language employed in the regulations, guidance, and agency commentary. Federal Preemption Would Have Disastrous Consequences Products liability lawsuits often serve as the only viable means for catastrophically injured consumers and their families to obtain the medical care they need to prolong and rebuild their lives. Preempting tort law claims against automotive manufacturers in self-driving car crashes would effectively externalize the cost of these crashes away from the manufacturers which profited from the sale of the vehicle, and onto the injured consumers, their families, and ultimately, the rest of society which would likely be required to pick up the tab for the medical bills and other expenses. Products liability cases also serve an important truth-finding function for society as a whole. Each and every automotive crash is unique, and the determination as to whether a product had a defect that played into a crash must necessarily be made only after carefully reviewing the circumstances of that particular crash. The jury system allows for this type of case-bycase analysis to be conducted in open court, with each party having a fair opportunity to present their claims and defenses. Federal regulations, on the other hand, by necessity require regulators to make a generalized assessment of the risk and utility of a proposed design, often without significant real-world data. Federal agencies are also prone to “agency capture” concerns, as bureaucrats may hope to land lucrative private sector gigs after leaving public service. Additionally, NHTSA has been historically underfunded and understaffed, and previous experience with electronic defects in automobiles has shown that


federal agencies may not be equipped to get to the bottom of these kinds of complicated technical issues. A prime example of the value and importance of products liability lawsuits for truth-finding can be seen in the Toyota sudden unintended acceleration debacle. During that investigation, safety advocates and injured consumers contended that a defect in the vehicles’ electronic systems caused the vehicles to accelerate without warning. Toyota, however, sought to blame the problem on faulty floor mats and drivers misapplying the gas pedal. NHTSA ultimately bought Toyota’s explanation, despite the fact that many of the unintended acceleration complaints voiced by consumers clearly did not fit within either the floor mat or pedal misapplication narrative. However, the fight did not end with NHTSA’s

investigation. As is often the case, the civil justice system proved to be the only real effective means to get to the truth, as an Oklahoma jury found that a software defect in a 2005 Toyota Camry was to blame for a crash that resulted in severe injuries to one person, and fatal injuries to another. Thankfully, at least some major industry and government players seem to understand the negative ramifications of preemption. During an “off the record” conversation at this year’s Autonomous Vehicle Symposium, one NHTSA official said that state tort laws should continue to be the basis to for adjudication of liability when there is a crash involving an autonomous car. Additionally, Volvo has already announced that “will accept full liability whenever one if its cars is in autonomous mode.”

Conclusion Self-driving cars are already here, and are only going to become more common in the future. This technological breakthrough will radically transform both our roadways and our civil justice system. Unfortunately, existing preemption jurisprudence has created a gateway for manufacturers to secure an early, case-killing victory on this issue. Manufacturers are already geared up and fighting this war. Consumer advocates must be informed and involved to help keep the courthouse doors open for the injured consumers of tomorrow. Citations available on request

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LEGALBRIEFS

Industry Intentionally Marketed Talcum Powder Knowing Of Cancer Risk Talcum powder, a seemingly innocuous, everyday household product for well over a century, has turned deadly for some users: specifically, for the women who have found themselves victims of ovarian cancer as a result of using talcum powder in the genital region. What manufacturers have known (or should have known) for at least 45 years is that the substance can cause chronic inflammation — a condition that medical science has connected with the development of some types of cancer. Over the past three decades, dozens of studies on this issue have been published, and all of them have demonstrated some connection between the use of talc and an increased risk of ovarian cancer. Amazingly, gynecologists and others in the medical profession have only recently come to be aware of it. Johnson & Johnson, once the “Most Trusted Brand in America,” started sales of its Baby Powder in the 1890s. In those days, many analgesics consisted of plasters applied to the skin, which left irritating rashes when removed. Initially, talcum powder was intended to relieve the discomfort from these rashes. Consumers soon reported that the product was effective in the treatment of infant diaper rash as well. J&J’s Baby Powder is 99.8% talc, which is combined with various fragrances. As many marketers of consumer products will tell you, scents can be very evocative. One J&J executive told the press several years ago, “It’s calming, nurturing. … It doesn’t 26 x The Trial Lawyer

By Ring of Fire & Drug Safety News

grab your senses. It wafts.” Interestingly, Baby Powder is not J&J’s biggest seller, accounting for a mere $374 million in sales in 2014. Considering that J&J is a $70 billion corporation, that figure doesn’t amount to much. However, over the past century, that single product has led to the development of an entire line of infant products, including Baby Oil and Baby Shampoo. J&J’s baby division today accounts for approximately $2 billion in revenue. Epidemiologist Daniel Cramer, who led the first study showing a statistical link between the genital use of talcum and ovarian cancer, said that soon after the study was published, he received a call from a J&J executive who spent a great deal of time trying to convince him that “talc use was a harmless habit.” Dr. Cramer says, “I don’t think this was a question of money. I think it was pride of ownership. Baby Powder is a signature product for J&J.”

In The UK, They Regulate — In The US, We Litigate: The Failures Of The FDA American and European regulatory systems differ by one major principal: In the U.K., if a product is suspected of being dangerous, it is handled, regulated, and controlled. In the United States, proof of guilt is needed before the FDA will take action and limit citizens’ exposure to a dangerous compound. Effectively, unless consumers have seen harm from a product and sought damages, only then will the FDA ban or regulate a harmful

substance. While there are benefits and drawbacks to both methods, the U.K.’s method is sure to protect more consumers and make food safer and more natural. An Alternet article by Ari LeVaux looks at the six chemical additives in food in America that are banned elsewhere in the world. While some cause anal leakage, others cause cancer, skin and nerve issues, and memory loss. All, whether you believe they should be allowed or banned, will have you taking a second look at the ingredients of your lunch. One notable conclusion to come from this closer look at what America allows in its food is that companies who produce these toxic products can be forced to change by the free market. In a growing trend, food producers are beginning to switch out coal tarbased food dyes for natural ones. Sensing a growing concern about things like Yellow #6, companies are touting their natural color additives as a marketing draw for the health-conscious family. Could this marketing pressure force change in other areas of the market, such as hormonal additives to meat products? We already see some of that as well in the way that your local fast food sandwich shop advertises “hormone-free chicken breast.” If we cannot rely on the FDA to protect our food, it is on all of us to take a close look at what we are being served and demand real change with the language everyone understands — cold, hard cash.


Concerta Teen Suicide Link — Is This Drug Appropriate? Leanne Bessner was an attractive, perky and popular 15-year-old girl from an average, stable, middle-class family. Among other activities, she played on her high school’s basketball team. She was also diagnosed with “Attention Deficit Hyperactive Disorder,” or ADHD. In August 2005, young Ms. Bessner was prescribed Concerta, also known as methylphenidate hci, a drug that, like Ritalin, is intended to calm children down and get them to focus. Two months later, on October 9, she committed suicide by hanging herself. Sadly, Leanne Bessner has not been the only victim of this prescription drug. One of her classmates who was also taking Concerta attempted suicide as well. Frequent reports and now lawsuits have come out over the years, documenting suicidal tendencies and uncharacteristically aggressive behaviors among children and adolescents who have been “treated” with Concerta. And yet, goaded by a profit-driven health care system, doctors have continued to prescribe this and similar medications for a “disorder” that may indeed not even be a disorder. In fact, in recent years, prescriptions for Concerta (including its generic versions) have increased at an alarming rate. Between 2012 and 2013, sales of methylphenidate hci grew by twothirds, totaling 2.4 billion prescriptions around the world. Today, over 80% of the world’s Concerta is prescribed in the U.S. Methylphenidate hci has been highly profitable for the industry, which (as usual) explains why Big Pharma has

allegedly been less than forthcoming about its potentially deadly side effects — which also include an elevated risk of heart attacks, breathing difficulties and spikes in blood pressure among other things. According to an FDA report issued in March 2006, 11 young people experienced fatal cardiac events while taking Ritalin and Concerta. According to Dr. Benedetto Vitello of the National Institute of Mental Health, many patients and their parents are led to believe that methylphenidate hci is a relatively harmless medication. Concerta and similar drugs have even been abused by teens who believe it will help them to focus on their studies and keep them alert. In an editorial published with the FDA report, Vitello wrote, “These drugs are being widely misused, and people need to know that they are not benign.” Despite these dangers, there were over 3.1 million patients taking Concerta in 2013 — and more than half of them were children between the ages of 6 and 17. Janssen Pharmaceutica, a subsidiary of Johnson & Johnson and manufacturer of Concerta, stated that its own review of the drug in 2015 “did not identify evidence of a causal relationship between Concerta and suicide.” Surprisingly, Concerta is not a big money-maker for J&J. Sales for Concerta totaled $206 million in 2015, an increase of 42% over the previous year — but even that represents less than 3% of the company’s total sales. Nonetheless, increasing “diagnoses” of ADHD means the market for Concerta and similar drugs is growing, despite changing regulations and public perceptions (for a different perspective on ADHD, check out Attention Deficit Disorder: A Different Perception by author and former psychotherapist Thom Hartmann). It’s the same issue that has been the cause of action in an almost endless stream of lawsuits. Big Pharma identifies an issue, labels it as a medical condition, then spends millions in order to convince the public that they have the treatment — for a price. Unfortunately, too often that price is paid for by the

patients in the form of damage to their health. In some cases, they even pay with their lives. But to Big Pharma, if that winds up costing a few hundred million dollars in judgments and fines, it’s no big deal.

Big Pharma Price Gouges On Heroin Overdose Medicine Amidst a growing opioid epidemic across the nation, Big Pharma is seeing dollar signs and an opportunity to make big bucks off of a lifesaving medication which saves thousands of lives yearly. Narcan is a drug which has the ability to save the life of an individual who has overdosed on heroin by blocking the effects of the drug immediately after the overdose occurs. In typical greedy pharma style, the company which makes Narcan and it’s generic version Naloxone have massively hiked the prices to capitalize on the growing need. There are five versions of the drug on the market, and yet, the price continues to rise. Generic Naxolene has been on the market since 1971 and this version of the drug, manufactured by Amphastar Pharmaceuticals, is the most commonlyused version in emergency responders and in private homes during an overdose. More than 28,000 people died from opioid and heroin overdoses in 2014, more than any year on record, according to the Centers for Disease Control. As the opioid epidemic set in, outpatient use of naloxone has increased by 72% in the last five years, according to Food and Drug Administration data. The Trial Lawyer x 27


In New Hampshire, which has experienced a massive growth in opioid usage in recent years, 2,800 doses of Narcan have been used since January, saving thousands of lives.

Nexium And Prilosec Linked To Kidney Damage, Heart Damage And Bone Fractures News of the connection between proton pump inhibitors (PPIs) such as Prilosec and Nexium has been out for

several months, having been reported on Ring of Fire and elsewhere. That’s grim enough, but the latest news is even more alarming. It turns out that when it comes to PPIs, kidney disease is just the tip of the iceberg. These drugs do far more damage in more ways than previously thought. At the top of the list: arterial damage. Arteries are the large, muscular-walled vessels that carry oxygenated blood from the heart. When arteries fail to function properly, the results can lead to kidney failure, cardiac arrest and dementia. This latest study, conducted at the Houston Methodist Research Institute, was recently published in the journal Circulation Research. In the study, researchers exposed the endothelial (cells that line the arterial walls) to Nexium, simulating years of contact between the drug and the cells. What

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happened came as a shock — but considering Nexium’s mechanism of action, should not have been surprising. PPIs such as Nexium operate by inhibiting the action of cellular organelles known as lysosomes. These organelles contain acidic enzymes that play an important part in the digestive process. In short, they produce stomach acid. This enzyme also helps to break down other cellular waste. When this enzyme is not available, these waste products build up in the arterial cells, resulting in premature aging. Worse, these cells are no longer able to reproduce. This impairs the body’s ability to repair itself. Worse, they cannot produce the substance that prevents plaque from building up on the artery walls. Lead researcher Dr. John P. Cooke, with the Houston Methodist Research Institute, speaking to the Chicago Tribune, says “They start to convert from Teflon to something more like Velcro…things begin to stick.” That’s not all. According to Dr. Cooke, Nexium causes damage at the chromosomal level. Chromosomes are the structures that contain most of an organism’s DNA. Telomeres are the compound structures located at the ends of chromosomes; their function is to prevent them from deteriorating or fusing with other chromosomes. When exposed to Nexium, Dr. Cooke and his team found that telomeres were shortened. Other studies have found a direct connection between shortened telomeres and a host of age-related disorders that include dementia and heart disease — as well as cancer. This supports an earlier study, published by the Public Library of Science (PLOS) in November 2015, showing a link between the use of Prilosec and heart attacks. In 2010, the FDA itself issued warnings that PPIs can result in an elevated risk of bone fractures, rob the body of magnesium (which regulates muscle and nerve function, blood sugar levels and blood pressure), and leaves patients vulnerable to bacterial diarrhea.


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By Sydney Robinson

On September 20th, Mike Papantonio, past president of The National Trial Lawyers, released his first novel titled Law and Disorder. The book is a legal and political thriller, drawing on Mike’s experience both as a skilled trial lawyer and as a nationally syndicated political talk show host. 30 x The Trial Lawyer


The story follows protagonist Nick “Deke” Deketomis as he takes on one of the largest pharmaceutical firms in America. During the course of the trial, an unexpected death casts a dark cloud over Deke, and he soon realizes that he may have put his trust in the wrong people. As he works to find out who is behind the killing, he learns that not everyone is who they appear to be, and that he’s made far more enemies than he ever imagined.

big anti-trust cases. In the entire country, there are only a handful of attorneys that do that. That made this book unique in that regard alone.

The book is already gathering praise, with Publishers Weekly writing the following: “The legal maneuvering, courtroom drama, and brisk pace make this a satisfying tale of greed, corruption, lust, and murder.”

Papantonio: The story of Annica Phillips has been repeated time and time again in my career where I’ve seen awful results from people who’ve take pharmaceuticals. Annica in this book was a young lady who took a birth control pill called Ranidal. Ranidal caused blood clotting and it caused paralysis and ultimately ended up killing her. That fact scenario is as true as I could ever write. We’ve seen literally hundreds of cases like that over the years, heavily in the area of birth control. The problem with blood clotting and birth control pills is a very common problem. Annica Phillips is a composite. Not just of birth control pharmaceutical but of many of the pharmaceutical companies products that kill and cripple people by the dozens every day. Under reported, under-regulated, it’s a problem nowadays. The media has turned its attention to Kim Kardashian and is ignoring the real studies. The stories about young ladies and consumers all over this country that are dying from all different types of pharmaceuticals. Annica Phillips is a composite of that.

Building off of Mike’s distinguished career as one of the top trial lawyers in America, the story pulls in aspects from real trials and cover ups that Mike has discovered through documents obtained from corporations. At times you may begin to forget that the book is fiction as he uncovers some of the most grotesque behavior of corporate America — stories that are popping up in the news media almost daily. Recently, I sat down with Mike to discuss the book and find out what inspired him to dive into fiction after years of trial law and political punditry: Sydney Robinson: What was the inspiration for the character of Nick “Deke” Deketomis? Mike Papantonio: The character Deke in Law and Disorder is really a composite character. It’s trial lawyers who I’ve worked with, who I’ve seen in courtrooms when handling very difficult, very complex cases over the last 30 years. Deke is really a composite of them. What I’ve tried to do is borrow the very best and some of the barnacles in the process when it comes to the creation of Deke. Deke will be a character that you’re going to see in a series of books along with some other characters in Law and Disorder. Gina Romano, for example, is a very tough female trial lawyer, and you’re going to see her resurface in the next book. Robinson: How does Deke’s career parallel your own experiences as a trial lawyer? Papantonio: As I’ve looked at how to formulate what Deke is about, I’ve obviously had to use some of my lifetime experience. I’ve also used a lifetime of experience of other very, very good lawyers throughout this country who have taken on huge, mass tort cases. People don’t realize the difficulty with a complex mass tort case, how difficult that is. In the creation of Deke, he had to be a special character. He had to be a lawyer that doesn’t get involved with handling automobile cases or single event cases. He was a lawyer that had to be willing to take on the big environmental cases, the big pharmaceutical cases, the

Robinson: The character of Annica dies as a result of a birth control medication. You’ve handled these types of cases in the past — is the story of Annica similar to the litigation you’ve handled?

Robinson: There are very strong political overtones to the whole book. How did your media career influence that part of the story? Papantonio: The political overtones of the book are inescapable. It’s impossible to talk about corruption, corporate corruption from pharmaceutical industries, from the energy and oil industry, from the Wall Street industry. It’s impossible to talk about the lawsuits that emanate from that type of corruption without talking about the politics that are associated with it. My hope in this book was… People have a lot of things they have to keep up with. They work every day, they come home, and they’re lucky if they can read the headlines of the newspaper or catch the nightly news. It takes real work to find the back-stories. The political back-stories, the social back-stories. What I’ve done with Law and Disorder and several other books that are going to be coming out that are a continuation of that is I try to give them the political story in the book. Truthful stories even though it’s a fictional novel. I try to deliver the truth of what’s happening to them politically. Rather than having to search the material out in the newspaper which they’ll rarely find, or in corporate media which they’ll rarely find, they’ll be able to sit on a beach, read a good novel and find out what’s happening to them politically as well as socially. Some of the stories that The Trial Lawyer x 31


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are never told in books these days. Oddly enough the place that people do find those stories now is through a good fiction thriller. A good legal thriller that’s been well researched and is actually based on real facts. They’re able to see the political stories that emerge constantly that affect their lives but they simply don’t know how badly they affect their lives. Robinson: The legal aspects of this story revolve around a corporate cover up — is that typically what you see in mass tort litigation? How common is this? Papantonio: The corporate cover up has become a brand new science in corporate conduct. It used to be that CEOs would move through a corporation every 20–25 years. A CEO would go to major corporations. They would stay there 15, 20, 25 years. Now the new MBAs that are coming out of America’s most prestigious MBA schools are told you’re only there for two or three years. In the two or three years, the conduct that they create is most of the time deplorable where it comes to them simply trying to get the value of that stock up one eighth of one cent. That increases their bonus, it increases their exit money, and it increases so many things for them as far as income. Because of that, the caliber of corruption has become worse. The caliber of corruption that we see nowadays taking place in the pharmaceutical industry, on Wall Street, within the oil industry, the chemical industry is the world’s worst.

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I don’t believe there’s ever been a time where I’ve seen worse conduct coming out of corporate America. Part of that is formulating the way that they go about covering up facts. How do they destroy documents? How do they hide emails? How do they get rid of whistle blowers? What do they do to whistle blowers to get rid of them? How do they get rid of the person who simply wants to run the corporation in way that has a moral compass, that’s responsible? That’s all part of that corporate coverup. Those are the things we talk about in Law and Disorder but we tell the story behind them. It’s not simply preachy. It’s not simply delivering facts. It tells the story. It lays it into a story. The story that’s told is very typical of what I’m confronted with in what mass tort lawyers — trial lawyers — are confronted with almost every day in their career. Law and Disorder is available for order on Amazon.com, and Mike Papantonio will be signing copies at the Fall 2016 Mass Torts Made Perfect conference at the Bellagio Resort in Las Vegas, October 18th–20th.


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THE NATIONAL TRIAL LAWYERS PRESENTS THE 2016 HALL OF FAME INDUCTEES

As we prepare to close out another year, The National Trial Lawyers wants to recognize and honor the 2016 inductees in the Trial Lawyer Hall of Fame. Housed at the Beasley School of Law at Temple University, the Trial Lawyer Hall of Fame honors those lawyers who have spent their lives in the service of others. Advocates in both the courtroom and in society, these remarkable individuals exemplify the qualities that all attorneys strive to emulate. At the Spring 2016 Mass Torts Made Perfect at the Wynn Resort in Las Vegas, Debra Pole, John Romano, Michael Burg, and Steven Yerrid were inducted into the Hall of Fame. Each of these new Hall of Fame members has devoted his or her career to leveling the playing field against massive corporate interests in order to preserve the way of life of the American people, and their stories are as unique as their different approaches towards the legal profession:

34 x The Trial Lawyer


Debra Pole

John Romano

Debra E. Pole is a partner in Sidley’s Los Angeles Litigation group and a member of the firm’s Executive Committee. She is the practice group leader for the Products Liability and Mass Torts practice where she trains, supervises, and manages a number of lawyers and paraprofessionals. Debra has supervised domestic and international defense law firms that were involved in complex pharmaceutical and medical device litigation and has had responsibility for national financial management of mass tort litigation. Debra has received numerous awards and honors, including the following honors: Fellow, American College of Trial Lawyers, where she is a member of the College’s National Trial Competition Committee and a former member of the College’s State Committee; a former member of the International Association of Defense Counsel (IADC) and past faculty member (2004) and Trial Director (2010) of the IADC’s prestigious Trial Academy; California Legal Eagle, 1996; National Law Journal’s List of Top 50 Women Litigators, 2001; National Law Journal’s List of Top Ten Trial Attorneys, 1994, 2001; Los Angeles Daily Journal Settlements and Verdicts’ List of 30 Top Women Lawyers, 2002 (featured on the cover), 2003, 2004, and 2008.

As one of the founding partners of Romano Law Group, John F. Romano has represented clients in civil and criminal cases for more than 42 years. A board certified civil trial lawyer and litigation attorney, John has successfully tried to verdict over 200 cases in nearly every type of civil and criminal case. John has obtained numerous multi-million dollar verdicts, including a $45 million verdict for a paralyzed motorcyclist when the jury needed to understand the visceral components of the plaintiff’s damages. In 2013, he obtained a $53 million verdict for his client against Ford Motor Company in a seat back defect case. John has held numerous positions in national law organizations and has been recognized for his contributions to the field of law in Florida. He served as president of the Academy of Florida Trial Lawyers, The National Trial Lawyers, the Florida Justice Association, the Southeast Florida chapter of the American Board of Trial Advocates, Civil Justice Foundation, Gold Coast Chapter of the Federal Bar Association, Palm Beach Chapter of the Federal Bar Association, and the Melvin M. Belli Society.

The Trial Lawyer x 35


Michael Burg

Steven Yerrid

Michael S. Burg graduated from the University of Denver in 1972 and received his law degree from the University of Denver Sturm College of Law in 1975. Soon after being admitted to the Colorado Bar, Michael founded Burg Simpson. Today, he is veteran of over 185 jury trials as lead counsel and has obtained countless high-profile wins and combined settlements, judgments and verdicts well in excess of $1 billion for his clients. Michael has played an instrumental role in helping more than 4000 clients obtain settlements in excess of $690 million from the pharmaceutical giant Eli Lilly in litigation involving Zyprexa. Following the global economic collapse in 2008, Michael played an instrumental role in uncovering instances of Wall Street collusion and insider trading, with much of his work the subject of intense interest from both the SEC and Justice Department. Documentary evidence uncovered by Michael convinced the Connecticut Superior Court to enter an order requiring two UBS investment entities to put aside more than $35 million to ensure that the firm’s clients were adequately compensated. Michael was appointed the 2010 president of The National Trial Lawyers. He is a Life Fellow of the American Board of Trial Advocates and a Sustaining Fellow at the Roscoe Pound Institute. He is a member of the American Association for Justice President’s Club.

A graduate of Georgetown University Law Center, C. Steven Yerrid has been recognized as one of America’s top trial lawyers. Steve has obtained over 230 verdicts and settlements of $1 million or more, including a jury verdict of $217 million, the largest medical malpractice award in Florida’s history, and the nation’s largest verdict in 2006. In 2009, he obtained the year’s largest verdict in a wrongful death case with a jury award of $330 million. Steve is a member of the Inner Circle of Advocates — a prestigious organization whose membership consists of the top 100 trial lawyers in the country. He is a past recipient of the Perry Nichols Award and the EAGLE Excalibur Award, the two highest honors bestowed by the Florida Justice Association. Steve was named Top Lawyer in the Nation by Lawyers USA and selected by the National Law Journal as one of the top ten litigators in Florida. He is a Diplomate with the American Board of Trial Advocates and was selected as the Hillsborough County Bar Association’s Outstanding Lawyer. Steve devotes much of his time and personal resources to philanthropic efforts and is the chairman of The Yerrid Foundation, a non-profit organization that has supported and donated millions of dollars to numerous causes.

36 x The Trial Lawyer

In April 2017, The National Trial Lawyers will be welcoming five more outstanding individuals into the Hall of Fame during an induction ceremony at Mass Torts Made Perfect at the Wynn Rest in Las Vegas. We hope to see you all there!

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BIG PHARMA Is Bribing Doctors TO PUSH DEADLY DRUGS By Martha Rosenberg 38 x The Trial Lawyer


At the 2010 meeting of the American Psychiatric Association in New Orleans, a psychiatrist from the East coast shared her anger with me about the recent clamp down on Pharma financial perks to doctors. “They used to wine us and dine us. An SSRI maker flew my entire office to a Caribbean island… but now nothing,” she lamented. She was right. Before news organizations and the 2010 Physician Financial Transparency Reports (also called the Sunshine Act, part of the Affordable Care Act) reported the outrageous amount of money Pharma was giving doctors to prescribe its new, brand-name drugs, there was almost no

limit to what was spent to encourage prescribing. At another medical conference I attended soon after when it was suggested that doctors not accept free meals from Pharma reps because of indebtedness, a doctor asked in all earnestness “but what do we do for lunch?” He was right. Doctors seldom have to go hungry at lunchtime when Pharma reps are around. Not only do reps reliably bring lunch and free drug samples, until fairly recently they wielded thousand-dollar budgets to send doctors on trips to resorts, golf vacations and to sought-after sports events. No wonder the docs saw them.

The Trial Lawyer x 39


travel agencies and sex workers to convince doctors to prescribe its drugs. 4) Johnson & Johnson wined and dined Texas Medicaid officials, charged state authorities, treating them to trips, perks and honoraria to get its expensive antipsychotic drug Risperdal preferred status on the state formulary where it would be paid for by taxpayers. (Taxpayers were also bilked by the Department of Veterans Affairs expenditure of $717 million on Risperdal only to discover the drug worked no better than a placebo.)

But by 2010, much of the over-the-top Pharma largesse had ended. Not just because the press and Sunshine Act exposed the huge payments, naming names — but because practically every major drug company from GlaxoSmithKline (GSK), Eli Lilly, Abbott, AstraZeneca, Pfizer and Johnson & Johnson to Amgen, Allergen, Bristol-Myers Squibb, Cephalon, Novartis and Purdue had settled a wrongdoing suit. Both doctors and the public largely viewed Pharma’s safety and effectiveness claims as “bought” by such extravagance. In fact, by 2010, the number of doctors even willing to see Pharma reps had fallen by almost 20 percent and the number of doctors refusing to see all reps increased by half. Eight million sales calls were “nearly impossible to complete,” reported ZS Associates. Still, here are some of the ways Pharma managed to get drugs into your medicine cabinet when the financial excess bestowed on doctors was tolerated: 1) Blue Cross Blue Shield said that Pfizer jetted 5,000 doctors to Caribbean resorts where they enjoyed massages, golf and $2,000 honoraria to try to increase prescriptions for its painkiller Bextra — a drug that proved so unsafe it was withdrawn from the market in 2005 for heart risks. 2) The Justice Department charged that GlaxoSmithKline (GSK) “paid millions to doctors to promote Wellbutrin, approved at the time for depression, for off-label uses by funding meetings, sometimes at lavish resorts,” according to CBS News. Off-label uses ignore FDA approved indications in favor of whatever Pharma wants to say to sell a drug. 3) In China, GSK was charged with being even more brazen — employing a network of 700 middlemen and

40 x The Trial Lawyer

5) Bristol-Myers Squibb enticed doctors to prescribe its drugs with access to the Los Angeles Lakers and luxury box suites for their games, according to California regulators. 6) And, in keeping with the marketing free-for-all that has hooked so many Americans on opioid drugs, opioid maker Victory Pharma was charged with treating doctors to mortgage assistance and…lap dances. Golf Trips Are Not The Only Way Pharma Pays Doctors Doctors may not get to go to the Caribbean as they once did, but they make a huge amount of money from Pharma by giving speeches promoting its drugs. The speech-givers, who sit on Pharma’s speakers’ bureaus, are considered “key opinion leaders,” capable of convincing other doctors of a drug’s benefits so they will then prescribe the drug. According to ProPublica, Sujata Narayan, a family medicine doctor practicing in Stanford, CA earned an astounding $43.9 million promoting drugs for Pharma. Karen Underwood, a pediatric critical care doctor in Scottsdale, AZ received a walloping $28 million. Moreover, hospitals are also awash in Pharma money with the City Of Hope National Medical Center receiving $361 million and the Cleveland Clinic Foundation $22 million. Pharma also pays doctors to conduct studies of its drugs often paying them for each subject they recruit and winning their loyalty because they are then familiar with the drug after monitoring subjects on it. A huge Pfizer trial of the drug Neurontin was conducted just this way, charged Carl Elliot in the New York Times: 772 study investigators were recruited so they would personally prescribe the drug once they were familiar with it. The study was not conducted to establish


effectiveness and safety and the joke was on them — and the public. Traditionally, Pharma also paid for Continuing Medical Education courses, or CME, that are required for doctors to keep their state licenses and sometimes their insurance. Since the Pharma subsidized CMEs were “free,” doctors saved money they would have spent to enroll in a real course but they had to listen to a Pharma sales pitch as a captive audience, instead. Until transparency laws, CME course materials did not even hide Pharma funding. For example, a 2008 course called “Bipolar disorder: individualizing treatment to improve patient outcomes, part 2” was unabashedly taught by teachers funded by Abbott, Eli Lilly, AstraZeneca; GlaxoSmithKline, Janssen, Novartis, Pfizer, Wyeth, BristolMyers Squibb, Shire and four more drug companies. Pharma has also used CMEs for damage control when safety signals about a drug could tank sales. When dentists, oral surgeons and patients began seeing “jawbone death” from the popular bone drugs called bisphosphonates, Pharma told doctors in its free CMEs it was not the drugs but patients’ poor “hygiene” that was causing the serious and disfiguring side effect. Right. Seven years after hormone replacement therapy (HRT) was linked to increased risks of cancer, heart disease and stroke, Pharma CMEs marketing HRT as if nothing had happened at Duke University, Penn State University and University of Oklahoma medical schools, the Cleveland Clinic and on Medscape. Pharma funded CMEs also helped “disease awareness,” an insidious selling tactic. When Lilly’s antidepressant Cymbalta got FDA approval for use in fibromyalgia, Lilly gave nonprofits $3.9 million in CME grants to raise “awareness” of fibromyalgia. Have drug; need patients. Defending Pharma Payments Medical professionals have accused journalists of putting undue focus on Pharma payments, maintaining that it does not affect their prescribing and also that the world has bigger problems. New York University professor Lila E. Nachtigall, who received $124,000 from Pharma for speaking and other promotional fees, said “It kind of makes me laugh” that Pharma links are a concern, “with what goes on in the Senate.” But journalists hew to a strict “no gifts” code themselves. According to the Reuters Handbook of Journalism, professional journalists do not accept “any payment, gift, service or benefit (whether in cash or in kind) offered by a news source or contact,” or “hospitality when there is no news value,” or travel “junkets.” Journalists must pay their own way on trips to maintain “accuracy, balance and the truth,” says Reuters. Other

reputable news organization adhere to the same standards. At medical conferences, doctors often show slides disclosing all the Pharma companies who pay them before segueing into their “objective” medical study. Imagine what would happen if a journalist disclosed financial payments from an entity or industry and then proceeded to “report” on it. Free Lunches Still Common — And Sway Prescribing In 2002, Pharma’s lobbying group PhRMA adopted a voluntary code discouraging free trips and tickets to the theater or sporting events for doctors. But the code still allows free meals. A recent study in JAMA Internal Medicine found that even a lowly $20 meal resulted in more prescriptions for Pharma. The study found doctors who received even one free meal were 70 percent more likely to prescribe the brand-name beta blocker Bystolic, 52 percent more likely to prescribe the brand-name ACE inhibitor Benicar, 118 percent more likely to prescribe the brand-name antidepressant Pristiq and 18 percent more likely to prescribe the brand-name statin Crestor. Preference for the drug linked to a free meal existed even though generic equivalents exist for all four drugs which significantly save patients and the health care system money. The study found that more than one free meal increased the likelihood of doctors prescribing the drugs with the exception of Pristiq, a “me-too” antidepressant with significant risks that was included in a legal settlement charging misrepresentation. Of course doctors can take umbrage at the suggestion that they “can be bought for a hero or a slice of pizza,” said the study’s lead author R. Adams Dudley, a professor of medicine and health policy at the University of California, San Francisco. But “it is human nature for a doctor to reciprocate by listening to the pitch of a sales representative bearing free food or beverages.” An editorial accompanying the JAMA Internal Medicine study said, “There are inherent tensions between the profits of health care companies, the independence of physicians and the integrity of our work, and the affordability of medical care. If drug and device manufacturers were to stop sending money to physicians for promotional speaking, meals and other activities without clear medical justifications and invest more in independent bona fide research on safety, effectiveness and affordability, our patients and the health care system would be better off.” It is an understatement. Not only do we now know that even a free meal can affect prescribing decisions, three years after the Sunshine Act, more than half of US doctors were still enjoying free meals, gifts and outright payments from Pharma.

The Trial Lawyer x 41


What’s At Stake In The

2016 Election By Farron Cousins

Tiny hands. Political attacks on email servers. Marco Rubio’s footwear. Plagiarized speeches. Debates over the definition of “Democratic Socialism.” Mocking handicapped reporters. Thinly veiled calls for assassination of political rivals. Those are just a few of the “issues” that American citizens have had to digest in the last 18 months of political news coverage.

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The 2016 presidential election, at least in terms of the two major party candidates, has been noticeably devoid of substance. Donald Trump can’t seem to stop making gaffe after gaffe, while Hillary Clinton has been more than happy to sit back and let the Trump campaign sink itself. While this has been entertaining, it hasn’t been all that educational. If you were hoping to find out actual policy positions of the candidates, you’ll have to scour the Internet hoping to find some form of proposal or plan that isn’t a delineated list of party talking points. To her credit, Hillary Clinton does have policy proposals available on her website, but the problem is that she sat on the sidelines for too long and wasn’t out there selling these policies to the public. Her campaign actually hired their transition team leader (a gutsy move that implies they are confident in a November sweep) before they held a single press conference in 2016. They appear to be more concerned with moving into the White House than they are about selling her policies. At this point though, does the Hillary campaign even need to sell themselves to the public? Donald Trump’s campaign has been rapidly crumbling from the inside since July, and even though he became the presumptive nominee in early June, the campaign didn’t release its first national campaign ad until the last week of August. Not exactly a winning strategy when your poll numbers dive further with every passing week. The problems with the Trump campaign started from the very beginning, when he announced his candidacy by attacking immigrants from Mexico, claiming that the country is sending over their rapists and murderers. That single claim and the resounding applause that it received from low information GOP voters set the tone for the 2016 Presidential election. Trump continuously doubled down on his immigrant claims, promising to build a massive wall — the most luxurious wall you’ve ever seen — and then force the Mexican government to pay for it. But the attacks didn’t end there. Shortly after his attacks on immigrants went over so well, Trump moved on to the right wing’s favorite bogeyman, Muslims. Trump proposed a ban on all Muslims entering the United States and promised to prevent Syrian refugees from being resettled in our country. In Trump’s mind, and in the minds of Republican voters, these people represented terrorism, and letting them come into our country was equivalent to inviting an attack on our soil. The San Bernardino shootings only seemed to help his case, as did the shootings at the Orlando nightclub. Republicans love to be scared, and Donald Trump is great at telling us what we need to be afraid of. It could be transgendered people lurking in your bathroom or terrorists knocking on your front door — nothing has been off limits during this campaign.

While these talking points were testing exceptionally well with base Republican voters, like the ones who still identify as members of the Tea Party, they weren’t sitting well with the Republican establishment. And that only seemed to add to Trump’s appeal. Capitalizing on the success he saw happening with Bernie Sanders, Trump sold himself as the anti-establishment hero of the white working class, here to rid us of the evil Republicans who only care about the well-being of corporations. The irony was completely lost on Trump’s supporters. These anti-establishment and overtly racist statements launched one of the largest Republican migrations ever seen, but the media completely missed the point. For weeks, headlines about a top Republican here and a top military official there denouncing Trump were frequent, but they all ignored the truth about the Republican Party: They actually believe the things that Trump says, they just don’t like hearing it vocalized. Anyone who believes that Donald Trump isn’t a true Republican, or that he doesn’t represent Republican ideals is kidding themselves. The only difference with Donald Trump is that he doesn’t speak in the same coded language that we’re used to hearing from Republican politicians. Trump says things like “illegal immigrants” instead of “undocumented workers.” He’s more direct in his racebaiting, where other Republicans will use terms like “welfare queens” and “thugs.” But it all means the same thing. And that’s why this so-called rift within the Republican Party isn’t actually happening. We have Republican politicians who are trying to distance themselves from Trump publicly, but behind closed doors they agree with everything he says. It’s nothing more than political maneuvering to keep Trump at arm’s length, and they’ll do that as long as they think it is helpful. When you look at what Trump has said during his campaign, you see that he’s saying the same thing as other Republicans — Abolish the minimum wage, climate change is a hoax, bomb the Middle East into oblivion, get rid of life-saving regulations because they cost businesses money. The list could go on forever. The problem that the Republican Party has right now is not that Trump isn’t a Republican; It’s that he’s the perfect Republican, and now they’re having to look into this disgusting mirror and see how hideous they’ve actually become. With the exception of white men, Trump has managed to belittle and attack every group of people in this country. Here’s the interesting thing about all that — This mass exodus of Republicans and big money donors who won’t endorse Trump or who’ve come out in support of Hillary Clinton has absolutely nothing to do with his The Trial Lawyer x 43


attacks on minorities and women or his hawkishness. Those Republicans who are abandoning the GOP are only doing it because they feel powerless. They know that they can’t control Donald Trump and that they can’t expect any favors from him, so they feel politically impotent. They don’t have a problem with what he’s saying — for years we’ve heard the exact same lines come out of the mouths of people like John McCain, Lindsey Graham, Ted Cruz, Louie Gohmert, Ann Coulter, Michelle Malkin, Sean Hannity, and Bill O’Reilly. If these Republicans actually cared about hateful rhetoric, they would have disavowed the Republican Party years ago and demanded apologies from all of these people. So here’s what’s going to happen with these Republican defectors: They’re going to stay out of the spotlight until Trump loses, then they’ll re-enter the Party saying “I told you so, now you need to trust me and give me more power,” and it’s going to work. They’ll get their power back, they’ll get their corporate donors back, and they’ll say the same hateful things that Trump says but it’ll be ok to the establishment because they know that they can still control the actions of these politicians. And that’s what the dump Trump movement is all about — a loss of power among the establishment, not his hateful message. That brings us to the sad reality of the 2016 election: This isn’t about economic or foreign policy. This isn’t about reigning in Wall Street or stopping big pharma price gouging. We’re going to have to suffer with those issues for a little bit longer because this election has become about issues that, believe it or not, are more important than economic hardships and war. Because of the two candidates that we have to choose from in the major parties, this election has become about basic human rights and equality. We have a Republican candidate who has stirred up so much hate and anger that we have white supremacists openly supporting him and even deciding to run 44 x The Trial Lawyer

for office as Republicans themselves. Violence against Muslims has increased at an alarming rate, and analysts have linked this rise in violence directly to comments made by Donald Trump during his campaign. On top of that, we still have Republicans out there, like Kim Davis in Kentucky, who believe that gay couples should not have the right to get married. Republicans who believe that it is perfectly fine for police officers to murder unarmed black suspects in broad daylight. Republicans who think that all Muslims are terrorists and we should consider using nuclear weapons in the Middle East. We have Republicans who want to deport school children who have done nothing wrong, just because they look different than the other white kids at their schools. Hillary Clinton is not perfect, but she doesn’t stand for oppression. She herself has had to overcome so many obstacles in her life simply from being born a woman — making less money than male counterparts, fewer job opportunities, increased likelihood of discrimination and harassment. We’re very close to finally breaking the greatest glass ceiling of all by putting a woman in the White House, and her opponent can do nothing but incite hate and violence. On both economic and foreign policies, it is unlikely that Hillary Clinton will be any different than President Obama. There will be great decisions and there will be horrible decisions. But at the end of the day, she will treat everyone in this country as an equal, and she will work to make sure everyone else does the same. That’s what this election is now about. So we may suffer through more banking scandals, more market twists and turns, and perhaps a few more years of economic hardships. But if the reward is that all citizens in this country are finally granted the same rights and the same protections, then that’s a period of suffering that we should all be willing to endure.


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DONALD TRUMP And The ‘Decent’ Republicans By Chauncey DeVega

Recently while chatting with online “friends” through Twitter and other social media, I shared an observation about Donald Trump’s feud with Khizr and Ghazala Khan, the Pakistani-American parents of a United States Army officer who was killed in Iraq in 2004. In response to my calling out how Donald Trump has, once again, shown that he is a contemptible and pathetic human being, a Twitter friend replied something akin to, “maybe this will finally force the decent Republicans to finally get off the fence.” I responded, “No decent Republican would have supported Donald Trump in the first place.” 46 x The Trial Lawyer


I have thought about that reply frequently. It was flippant. What does it mean to be a “decent” person in the context of discussing political choices? Of course, I/we/ us have our own personal criteria and definitions that incorporate (or not) a set of normative values about the world and our relationship to it. As a function of personal temperament, upbringing, intellectual training, schooling, brain chemistry, and my experience as a member of the black American working class, the personal is intensely political for me. Consequently, by my decisionrule(s), if someone supports Donald Trump they are endorsing his values. By implication his bigotry, racism, nativism, and other social sins are now their sins. What of the more difficult question and conclusion? Why would an ostensibly “decent” person support the Republican Party and its candidate, the American Il Duce and Immortan Joe Donald Trump? Political elites will often choose party over personal principles. They crave power more than anything else and Trump (or any other nominee) is a means to an end. Many American voters vote for a particular party simply out of habit or upbringing —regardless of the candidate. Political psychologists and other researchers have repeatedly demonstrated how the brain structures of conservativeauthoritarians are very different from those of liberal-progressives. The former values order and is fear-centered in his or her decision-making. The compulsion to support Trump because he is a “strong father figure” who promises “safety” and “security” and “protection” against harm done by some type of scary Other may be driven on a deep subconscious and instinctive level. American conservatives exist in an alternate reality created by a powerful disinformation news entertainment media machine. This bubble of epistemic closure has anointed Trump a political godhead. The cultists in the political religion that is modern conservatism worship him eagerly. Heretics are to be condemned and exiled. How “decent” Republicans (or

independents) could support Donald Trump is also a function of extreme political polarization and sorting, which results in ideologically homogeneous interpersonal networks and communities. As new data reported in The Washington Post suggests, if we live in “political silos” where those who disagree with us are a type of caricature and “enemy,” it becomes very difficult to reach consensus on matters of important public concern. Moreover, the phenomenon known as “information backfire” is amplified as we do not know trusted informants with whom we may disagree — but still respect as human beings — about politics. But as I struggle with the role of “decent” Republicans in the rise of Trumpmania, I cannot explain away the bigotry and racism of his supporters, and those who are complicit with and thus enable them. I have spoken with Jared Yates Sexton who has written extensively for The New Republic, The New York Times, and other publications about his experiences at Donald Trump rallies. He describes a mass spectacle driven by racism and misogyny, where the American Swastika (i.e. the Confederate flag) is common, “Sieg Heil!” and its contemporary equivalent “All Lives Matter” are all too commonly used, and white rage is the motor driving the Trump movement. Yates’ experiences are almost identical to my own at Trump’s no-show rally here in Chicago earlier this year. In early August, The New York Times released a special online video report on the racism, bigotry, nativism, and other ugly behavior exhibited by Donald Trump’s supporters at his rallies and other events. The Guardian also featured an excellent profile on a rust belt community in Ohio where Donald Trump is finding support among angry white men who feel “disenfranchised” and “left behind” by Obama’s America and the post-civil rights era. An article in The Guardian, titled “What do Donald Trump voters really crave? Respect” highlights how: Trump voters want respect. They

want respect for their long hours of work that risks their bodies, for the hands caught in vices, backs wrenched by weights, and knees torn. They want respect because they are doing dangerous work, but their pay has been flat for decades. They want respect because they haven’t just lost economically, but also socially. When they turn on the TV, they see their way of life being mocked and made fun of as nothing but uneducated white trash. With Trump, they are finding someone who gives them respect. He talks their language, addresses their concerns. Sometimes it is celebrating what defines their neighborhood, what they in Parma have in common: being white. They and Trump are playing in dangerous territory, with the need for respect tipping into misplaced revenge. In another all-white workingclass neighborhood not far away, a collection of retired workers, all Trump voters, gather in the mornings at McDonald’s. When the talk turned to politics the N-word is thrown around with ease, and racial jokes are par for the course.

The New York Post, drawing from J.D. Vance’s excellent new book Hillbilly Elegy, offers this profile: There are decaying postindustrial Middletowns all over the map. In 1970, Vance notes, 25 percent of white children lived in neighborhoods with poverty rates above 10 percent. By 2000 the figure had risen to 40 percent, and Vance believes it is higher today. The life expectancy for Vance’s people is declining. Trump’s promises to stand up to the Chinese are resonating, as is his message that “the system is rigged” against a proud group of Americans, Americans who built the postwar glory but now feel they’re being ignored or outright mocked. White trash is the one ethnic group it is still okay to make fun of. The Trial Lawyer x 47


But, as always, I am needled by how race and class are intimates in America. The hope is to have a real “we the people” democracy, that finding common ground in pursuit of common interests in the service of the Common Good should be our first and best goal. To do anything less is to surrender to the plutocrats and the neoliberal order. Are Donald Trump’s supporters “decent” people in general? Or are they “decent” people who just happen to

be Donald Trump supporters? Are they something else? How are we to make that determination? Does it even matter? Those answers will help to determine how American politics continue to fissure and fracture, both up to and after Election Day in November. They will also determine what happens next, when Trump’s minions (hopefully) have to confront the fact that their hero was vanquished.


The Trial Lawyer x 49


What’s Next For

The Bernie Sanders

Revolution? By Jim Hightower

What an amazing Democratic primary season it’s been, including this happy result: WE WON! “We” being the millions of young people, mad-as-hell working stiffs, independents, deep-rooted progressives, and other “outsiders” who felt the Bern and forged a new, game-changing, populist force of, by, and for grassroots Americans. True, this progressive-populist coalition did not win the White House 50 x The Trial Lawyer

on its first go ‘round behind the feisty Sanders insurgency (which the smug political establishment had literally laughed at when he began his run). But they are not laughing now, for even they can see that the outsider revolt against power elites won something even more momentous than the 2016 election: The

future. Back in April 2015, when the blunt, democratic socialist from Vermont issued a call for disenchanted voters to join him, not merely in a campaign for the presidency, but in a long-term movement to “revitalize American democracy so that government works for all of us,” even his


most optimistic backers couldn’t have dreamed the movement would come so far so quickly. Let’s reflect on some fundamental changes this progressive uprising has achieved in the past 15 months: It yanked the national debate out of the hands of the Washington and corporate elites — both devoted for more than 30 years to rigging all the rules to further enrich the one-percenters at the expense of everyone else — and proved that future success requires Democrats to abandon their effete namby-pambyism and embrace the vision, message, and issues of unabashed populism. It revived true bottom-up campaigning through innovative social media outreach, the empowerment of hundreds of thousands of engaged supporters and volunteers, instantaneous

mass communication via cell phones, and turning people out by turning them on — by finally addressing inequality head-on and proposing bold policies that appeal directly to the workaday majority’s interests. It lifted — from the political scrap heap up to the top of our national discourse — the concerns of middle and low-income families: creating good, middle-class jobs through a national program of infrastructure repair and development of the green economy; enacting a $15 minimum wage; removing crushing education debt from the backs of students; coping with the imminent crisis of climate change; repealing the Supreme Court’s democracy-destroying Citizens United edict; implementing pay equity for women; stopping the war machine’s constant adventurism;

expanding Social Security; providing Medicare for all; halting the unjust mass incarceration of African-Americans and Latinos; defunding the disastrous drug war; demilitarizing our police forces; replenishing our public treasury by taxing Wall Street speculators; and generally restoring economic fairness, social justice, and equal opportunity for all as central purposes of public policy. It raised some $229 million in more than eight million small donations (averaging only $27) — including millions from low-income people who sent in $5 or even $1 — thus debunking the myth that Democrats can only be competitive by joining Republicans in taking corrupting big money from corporations and setting up “dark money” SuperPACs. It created a hopeful, formidable,


and growing populist political channel that is both insistently democratic and independent of the Democratic Party. This state-based, national network of Berniecrats will keep building its connections; pushing its agenda; and backing populist candidates in House, Senate, and other races this fall. Then, on to next year’s campaigns for mayor, city council, etc., which will be charged by the 20,000 Sanders supporters who have, according to Bernie, signed up online to get info on running. Then, to the 2018 midterm congressional elections. And then, to the 2020 presidential campaign. Campaigns End On Election Day. Revolutions Don’t. The fervent prayer of old-line Democratic operatives and corporate funders is that The Sanders Storm will dissipate now with Hillary Clinton’s nomination, thus allowing politics-as-usual to reestablish its grip on the system. Here’s why I think they’re dead wrong: First, whatever else you think of Clinton, she’s certainly smart, savvy, and accomplished, and she didn’t come this far by ignoring important shifts in the political winds. As Sanders’ tubthumping message drew huge crowds, new voters, and that deep pool of small donors, she adjusted her wings to try riding some of the powerful thermals rising from America’s grassroots. A careerlong corporate Democrat, Clinton began sounding more and more like Sanders, sympathizing with the rising fury of working-class families and becoming at least Bernie-lite on several populist proposals. You can view her adaptations as hopeful or hopelessly cynical, but the point is that Clinton recognizes that a new power is loose on the land. Understanding that the same-old Bill & Barack moderate corporatism won’t charge up the crowds she needs in November, she’s scrambling to tap the electric populism of the Bernie Rebellion. This rebellious spark is the true hope of a moribund Democratic Party that registers only 29 percent of eligible voters. Far from wishing away the energetic 52 x The Trial Lawyer

millions who “Feel the Bern,” entrenched Democratic elders should beg these hotblooded activists to revitalize the party. In fact, a June poll by Reuters/Ipsos found that three quarters of Democrats (including Hillary backers) want Sanders to have a “major role” in shaping the party’s positions, and two-thirds wanted him as her VP choice. Think about it: While Bernie was the oldest candidate running for president, in heart, soul, vigor, and vision he is by far the youngest. He won the majority of voters under 45 years old and a stunning 71 percent of under-30 voters. In the under-30 demographic, Bernie even won decisively among women, including African Americans and Latinas. He also dominated among independents who voted Democratic. There’s the future. This surge reflects a level of organized, grassroots, progressive leverage missing for decades. Since the 1980s, the party of Franklin and Eleanor Roosevelt has been shedding its work clothes and donning the suits of the comfortably wealthy, while simultaneously accepting a Reagan-esque faith in the trickle-down magic of enriching those at the top (who also just happen to be the political donor class). This year the grassroots insurgents who picked up Sanders and rammed him through the front gate of the Democrats’ corporate bastion have shattered that complacency, exposed the party’s drift from democratic principles, and opened the system to the possibility of another populist moment in American history. Don’t Mourn. Organize! The second (and most powerful) reason that I believe this rebellion will persevere is that it’s organic. Not an artificial marketing creation sprouted in some D.C. hothouse by national groups and moneyed interests, this is a wildflower movement that sprang up spontaneously, took root, and seeded thousands of zip codes. Despite supporters’ natural disappointment that their efforts ended short of the Oval Office, the majority are not petulantly giving up on politics, as most pundits predicted. Why would

they? After all, this corps of prodemocracy activists seemingly came from nowhere, won 22 states, virtually tied in five others, and revolutionized the Democrats’ message, policy agenda, and method of campaigning. Having proven their mettle as a talented and inventive grassroots network, they’re eager to push forward. I’ve been out there among them for months — from Great Falls to Cedar Falls, Albany to Albuquerque, Carson City to New York City, and more — and I’ve witnessed their creativity and grit. No way they’ll “Bern out” and fold, for they have audacious, long-term ambitions. Besides, the gross inequality and corporate rapaciousness they’re fighting will not just go away — and are likely to deepen and spread. Unlike the political and media establishment, which treats elections as periodic games to be “won” with pollsters, funders, and tricksters, this populist team is engaged in real politics: the ongoing struggle by everyday people to democratize America’s wealth and power to benefit all and serve the common good. Moving Forward Bernie’s success emerged like a grito — a long-suppressed shout of rebellion — from the battered soul of working-class America. It sprang in part from people’s anger at being run over, then ignored, by the corporate and political elites. But as Bernie’s message spread through mass rallies and social media, it became obvious that the rebellion is also deeply motivated by hope — a belief in and a yearning for Egalitarian America, a society dedicated to democracy’s fundamental principle: We’re all in this together. On June 16, Sanders urged his supporters to keep pushing for their democratic ideals. “Real change never takes place from the top down. It always occurs from the bottom on up — when tens of millions of people say ‘enough is enough’ and become engaged in the fight for justice. That’s what the political revolution we helped start is all about. That’s why the political revolution must continue.”


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DUPONT CANNOT

EscapeIts

Toxic Legacy By Farron Cousins

DuPont is currently facing about 3,500

individual lawsuits from people who have been poisoned from the dumping of a chemical known as C8 into the Ohio River. The chemical was used in the manufacturing of DuPont’s blockbuster creation Teflon for decades. And for almost as long as the company was using and carelessly dumping C8 into local waterways, it knew that the chemical was going to wreak havoc on humans who came in contact with it.

The Trial Lawyer x 57


The lawsuits allege that DuPont officials were intimately aware of the dangerous side effects of C8 exposure but still decided to allow exposure among workers and by releasing the chemical into the environment. C8 is a chemical that proved incredibly useful in creating Teflon pans. Excess of the chemicals were incorrectly disposed of and dumped into the Ohio river where it flowed downstream and eventually all over the globe. When DuPont first learned in 1979 that C8 was biopersistent, it was already polluting the Ohio River with C8. The water was being discharged into the Ohio River directly through the infamous Washington Works “Outfall No. 5.” This contaminant then worked its way into the Ohio and West Virginia drinking water aquifers which connect to and are recharged by the Ohio River. As DuPont’s knowledge of the dangers of C8 increased, so too did its pollution of C8 into the Ohio River. DuPont’s own discharge records showed that, from 1979 to 2000, DuPont’s C8 pollution increased by several hundred percent per year. A 2015 study by the C8 Science Panel (the Brookmar Data Set) showed that at least 69,000 people in the mid-Ohio River valley were exposed to enough C8 contamination to put them at risk for, among other illnesses, kidney cancer, testicular cancer, and a serious type of inflammatory bowel disease known as ulcerative colitis. But DuPont’s C8 contamination legacy extends far beyond the Parkersburg area. Research published in 2014 conducted by scientists from the University of Cincinnati College of Medicine studied 51 young girls from the Greater Cincinnati area. Cincinnati is located on the Ohio River, approximately 285 miles downstream from the Washington Works Plant. That study showed that 48 of 51 of the young girls studied had extremely high C8 blood serum levels and that the source of that C8 was most likely the Washington Works Plant. Once the chemicals were dumped into the Ohio River, they seeped into the water supplies of nearby communities, resulting in thousands of people being exposed to dangerous levels of C8. Complicating the exposure problem is the fact that C8 is biopersistent, meaning that it does not break down in the body or in the environment, and instead continues to build as exposure increases. C8 is prevalent in the environment and so persistent that it has been found in the blood of polar bears in the Arctic and penguins in the Antarctic. C8 can be found in 98 percent of American bodies — and it’s not going anywhere. C8 has been connected specifically to six diseases: ulcerative colitis; pregnancy-induced hypertension; high cholesterol; thyroid disease; testicular cancer; and kidney cancer. The C8 Science Panel concluded that C8 uniquely affects the entire body of those exposed, no matter the level of exposure. In early July, a jury sided with plaintiff David Freeman who was awarded a victory over corporate chemical giant DuPont for the sum of $5.1 million, with 3,500 other cases just like it waiting to proceed to trial. Freeman’s victory was the second of its kind against DuPont, as cases are being handled individually rather than in a class-action form. In the first trial, a jury awarded the plaintiff $1.6 million. 58 x The Trial Lawyer

Mr. Freeman was awarded the verdict against DuPont after the jury concluded his testicular cancer resulted from DuPont’s “conscious disregard” toward the citizens in the Ohio Valley after DuPont failed to inform and protect them from its cancercausing C8 chemical that it was dumping into the air and drinking water. While some may worry that the $5.1 million payout is a drop in the bucket against the corporate giant, the award for Mr. Freeman is just one of 3,500 waiting in the wings against DuPont. And while DuPont constantly shows a disregard for American health and happiness, it does care about one thing: its’ wallets. Thousands of injured Americans are seeking justice from a ruthless company with no regard for American health and wellbeing. This victory will make it far easier for plaintiffs to seek and receive damages from Dupont from C8 injuries, so this win is about far more than the single payout. The jury ruled that DuPont showed “conscious disregard” for the health and well-being of Ohio residents located near the facility when it regularly dumped its manmade C8 chemical into the Ohio river and air. The plaintiff’s lawyers argued that DuPont officials were intimately aware of the ill-effects of dumping C8 and exposing humans to the chemical, but intentionally ignored those risks in order to continue profiting from its chemical. As a result, many people like Mr. Freeman contracted cancers and other illnesses and suffered immense physical, financial, and emotional stress for an extended period of time. Mike Papantonio from Levin, Papantonio in Pensacola, Florida and a team of five other law firms successfully argued on behalf of Mr. Freeman that the case showed gross negligence on the part of DuPont. Papantonio said of the jury’s decision: “DuPont only understands one thing — and that’s losing money. They have a defective moral compass.” The Freeman trial marked the second courtroom victory for Papantonio and the trial team against DuPont. In October 2015, a jury determined that water pollution of a certain toxin from DuPont’s Washington Works Plant in Parkersburg, West Virginia, caused plaintiff Carla Bartlett to develop kidney cancer. There are a few important differences in the verdicts for Bartlett and Freeman, most notably the lack of punitive damages in the Bartlett case. The jury for Bartlett determined that DuPont did not act with malice when dumping the toxic chemicals, and she was therefore not entitled to punitive damages. But Freeman’s jury disagreed, and two days after the verdict he was awarded $500,000 in punitive damages from DuPont. The “malice” argument was easier to prove in the Freeman trial thanks to a slew of documents have been unsealed from the ongoing trial. The documents show that DuPont was well aware of the dangers of C8 dating all the way back to 1961, and in many instances, its own environmental lawyers privately questioned the company’s decision to pretend that a problem didn’t exist.


Here are a few items found within these documents, which have been made available by the Levin Papantonio Law Firm:

• In November, 1961, a top DuPont toxicologist informed the company that C8 used in the production of Teflon was toxic. • February, 1961: DuPont becomes aware that C8 exposure in rats was linked to enlargement of testes, kidneys, and adrenal glands. • November, 1982: 21 years after the company recognizes C8 as “toxic,” it finally recommends limiting workers’ exposure to C8. • October, 1986: DuPont finally begins to worry about the “liability” it could face as a result of dumping C8 into the Ohio River. • March 1988: DuPont learns of link between C8 and testicular cancer. DuPont then internally classified C8 as a possible human carcinogen. DuPont knew it was in the public water supply, but did not tell the public. • February 1995: DuPont internal memo shows that it is concerned about the potential health effects associated with C8 exposure. • 2014: DuPont finally stops dumping C8 into the Ohio River. Fifty-three years passed from the time that DuPont acknowledged that C8 was toxic until it ceased dumping the chemical into the Ohio River. Sixteen years passed between the end of the dumping and the company’s acknowledgment that C8 was a human carcinogen. And not once during that time did it ever announce to the public that their health could be in danger, nor did the U.S. Environmental Protection Agency step forward to warn the public about the dangers they were being exposed to, in spite of the agency fining DuPont $16.5 million in 2005 for concealing the dangers of C8. One of the worst aspects of this story that is continuously overlooked is the fact that DuPont has replaced this carcinogenic compound with a different chemical that could be equally as dangerous. The chemical that has replaced C8 — which is non-creatively called C6 — has already been linked to tumors and cancers in lab animals, a strikingly similar pattern to what tests showed about C8 50 years ago. Additional reporting by Sydney Robinson and KJ McElrath

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ERIC HOLDER’S BRAND OF JUSTICE By Richard Eskow

Eric Holder certainly has changed since his days at Columbia University.

According to the New York Times, “as a boyish-looking freshman” he “was recruited by upperclassmen to help take over the R.O.T.C. office,” which they claimed as “a student center named for Malcolm X.” Actions like that, and heroes like Malcolm X, reflected the idealism that many of us shared in those days. As attorney general, Holder chose not to prosecute banking giant HSBC for laundering Mexican drug cartel money. Holder, Assistant Attorney General Lanny Breuer, and other Obama Justice Department officials showed similar favoritism to other big banks. 60 x The Trial Lawyer


magnitude of wrongdoing involved.) Holder’s deal protected HSBC and its executives from any consequences for their actions — actions that aided and abetted the murderers of as many as 85,000 people in war-torn parts of Mexico, sometimes by decapitation and often through prolonged torture. Why did it take Republican members of Congress — Republicans, for God’s sake! — to bring this information to light? It was the Republican chair of the Financial Services Committee who famously said, “In Washington, the view is that the banks are to be regulated, and my view is that Washington and the regulators are there to serve the banks.” How did this cash-drunk crew of bank-servile troglodytes become messengers of truth and justice? They may be imperfect vessels, but make no mistake: the GOP report is thorough, well-documented, and incontrovertible. In fact, not a single big-bank executive was prosecuted during their tenure, despite the most massive and well-documented epidemic of financial fraud in American history. The Times reported that young Holder “chose to major in American history as a means to explore his own heritage and to use as a prism through which to examine current events. Longing to escape the elite world at Columbia, he spent Saturdays taking underprivileged teenagers around New York City.” It’s easy to condemn the Eric Holder of today. It’s harder to understand, and sadder to contemplate, whatever became of someone who was once so young and idealistic. Thanks to a congressional report released in July, we now know that Holder and Breuer overruled prosecutors and cut a settlement that let the bank avoid pleading guilty to felony charges. The bank merely paid a fine of $1.9 billion — a sum that was widely described as “a slap on the wrist” at the time. (That should convey a sense of the

Holder said this about big banks like HSBC: “I am concerned that the size of some of these institutions becomes so large that … if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy … some of these institutions have become too large.” Shortly thereafter he amended his remarks: “I made a statement I guess in a Senate hearing that I think has been misconstrued … let me make it very clear that there is no bank, there’s no institution, there’s no individual who cannot be investigated and prosecuted by the United States Department of Justice.” If by “misconstrued” Holder meant “universally understood to mean the exact opposite of what I now claim to have intended” then yeah, he was misconstrued. And even if he believed that HSBC itself was too big to indict,

why didn’t Holder pursue criminal charges against the individual bankers who committed these crimes? This report raises some questions for the Democrats, too. Why do you suppose the Republicans released this information now? If Dems don’t think this is going to be an issue in the presidential campaign, they’re in for a surprise. They’ll need to convince voters that lawbreaking bankers won’t receive the same lenient treatment in the next Democratic administration they enjoyed in the last. That may not be easy. Republican candidate Donald Trump will almost certainly bring up past Clinton connections to HSBC and other large banks. Secretary Clinton should promise not to appoint Wall Streeters to senior positions in the Treasury or Justice Departments, and she should pledge to break up several of our nation’s too-bigto-fail banks. Holder has gone back to Covington & Burling, the firm where he earned more than $3 million a year before leading the Justice Department. So has Lanny Breuer. That firm represents many of the banks Holder protected as Attorney General. Other unsavory clients include Big Pharma companies, Halliburton, Philip Morris tobacco, and Xe (formerly Blackwater). And did we mention? It’s also a lobbying firm. Matt Taibbi from Rolling Stone has called Holder a “double agent” for Wall Street, but it’s doubtful that he sees himself that way. Few of us think of ourselves as bad people. But then, how does Holder justify his behavior to himself? I wish I knew. “I’m for truth,” a great leader once wrote, “no matter who tells it.” How did a young idealist wind up using his high office to protect bankers from standing equal before the law? The same leader also wrote, as if in prescient rebuke to Holder: “I’m for justice, no matter who it’s for or against.” That leader’s name was Malcolm X. The Trial Lawyer x 61


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Hooked On

Fossil Fuels By Michael T. Klare

Here’s the good news: wind power, solar power, and other renewable forms of energy are expanding far more quickly than anyone expected, ensuring that these systems will provide an ever-increasing share of our future energy supply. According to the most recent projections from the Energy 64 x The Trial Lawyer

Information Administration (EIA) of the U.S. Department of Energy, global consumption of wind, solar, hydropower, and other renewables will double between now and 2040, jumping from 64 to 131 quadrillion British thermal units (BTUs). And here’s the bad news: the consumption of oil, coal, and natural

gas is also growing, making it likely that, whatever the advances of renewable energy, fossil fuels will continue to dominate the global landscape for decades to come, accelerating the pace of global warming and ensuring the intensification of climate-change catastrophes.


The rapid growth of renewable energy has given us much to cheer about. Not so long ago, energy analysts were reporting that wind and solar systems were too costly to compete with oil, coal, and natural gas in the global marketplace. Renewables would, it was then assumed, require pricey subsidies that might not always be available. That was then and this is now. Today, remarkably enough, wind and solar are already competitive with fossil fuels for many uses and in many markets. If that wasn’t predicted, however, neither was this: despite such advances, the allure of fossil fuels hasn’t dissipated. Individuals, governments, whole societies continue to opt for such fuels even when they gain no significant economic advantage from that choice and risk causing severe planetary harm. Clearly, something irrational is at play. Think of it as the fossil-fuel equivalent of an addictive inclination writ large. The contradictory and troubling nature of the energy landscape is on clear display in the 2016 edition of the International Energy Outlook, the annual assessment of global trends released by the EIA this May. The good news about renewables gets prominent attention in the report, which includes projections of global energy use through 2040. “Renewables are the world’s fastest-growing energy source over the projection period,” it concludes. Wind and solar are expected to demonstrate particular vigor in the years to come, their growth outpacing every other form of energy. But because renewables start from such a small base — representing just 12% of all energy used in 2012 — they will continue to be overshadowed in the decades ahead, explosive growth or not. In 2040, according to the report’s projections, fossil fuels will still have a grip on a staggering 78% of the world energy market, and — if you don’t mind getting thoroughly depressed — oil, coal, and natural gas will each still command larger shares of the market than all renewables combined. Keep in mind that total energy consumption is expected to be much greater in 2040 than at present. At that time, humanity will be using

an estimated 815 quadrillion BTUs (compared to approximately 600 quadrillion today). In other words, though fossil fuels will lose some of their market share to renewables, they will still experience striking growth in absolute terms. Oil consumption, for example, is expected to increase by 34% from 90 million to 121 million barrels per day by 2040. Despite all the negative publicity it’s been getting lately, coal, too, should experience substantial growth, rising from 153 to 180 quadrillion BTUs in “delivered energy” over this period. And natural gas will be the fossil-fuel champ, with global demand for it jumping by 70%. Put it all together and the consumption of fossil fuels is projected to increase by 177 quadrillion BTUs, or 38%, over the period the report surveys. Anyone with even the most rudimentary knowledge of climate science has to shudder at such projections. After all, emissions from the combustion of fossil fuels account for approximately three-quarters of the greenhouse gases humans are putting into the atmosphere. An increase in their consumption of such magnitude will have a corresponding impact on the greenhouse effect that is accelerating the rise in global temperatures. At the United Nations Climate Summit in Paris last December, delegates from more than 190 countries adopted a plan aimed at preventing global warming from exceeding 2 degrees Celsius (about 3.6 degrees Fahrenheit) above the pre-industrial level. This target was chosen because most scientists believe that any warming beyond that will result in catastrophic and irreversible climate effects, including the melting of the Greenland and Antarctic ice caps (and a resulting sea-level rise of 10-20 feet). Under the Paris Agreement, the participating nations signed onto a plan to take immediate steps to halt the growth of greenhouse gas emissions and then move to actual reductions. Although the agreement doesn’t specify what measures should be taken to satisfy this requirement — each country is obliged to devise its own “intended nationally determined contributions” to the overall goal — the only practical approach for

most countries would be to reduce fossil fuel consumption. As the 2016 EIA report makes eyepoppingly clear, however, the endorsers of the Paris Agreement aren’t on track to reduce their consumption of oil, coal, and natural gas. In fact, greenhouse gas emissions are expected to rise by an estimated 34% between 2012 and 2040 (from 32.3 billion to 43.2 billion metric tons). That net increase of 10.9 billion metric tons is equal to the total carbon emissions of the United States, Canada, and Europe in 2012. If such projections prove accurate, global temperatures will rise, possibly significantly above that 2 degree mark, with the destructive effects of climate change we are already witnessing today — the fires, heat waves, floods, droughts, storms, and sea level rise — only intensifying. Exploring The Roots Of Addiction How to explain the world’s tenacious reliance on fossil fuels, despite all that we know about their role in global warming and those lofty promises made in Paris? To some degree, it is undoubtedly the product of built-in momentum: our existing urban, industrial, and transportation infrastructure was largely constructed around fossil fuel-powered energy systems, and it will take a long time to replace or reconfigure them for a post-carbon future. Most of our electricity, for example, is provided by coal- and gas-fired power plants that will continue to operate for years to come. Even with the rapid growth of renewables, coal and natural gas are projected to supply 56% of the fuel for the world’s electrical power generation in 2040 (a drop of only 5% from today). Likewise, the overwhelming majority of cars and trucks on the road are now fueled by gasoline and diesel. Even if the number of new ones running on electricity were to spike, it would still be many years before oil-powered vehicles lost their commanding position. As history tells us, transitions from one form of energy to another take time. Then there’s the problem — and what a problem it is! — of vested The Trial Lawyer x 65


interests. Energy is the largest and most lucrative business in the world, and the giant fossil fuel companies have long enjoyed a privileged and highly profitable status. Oil corporations like Chevron and ExxonMobil, along with their state-owned counterparts like Gazprom of Russia and Saudi Aramco, are consistently ranked among the world’s most valuable enterprises. These companies — and the governments they’re associated with — are not inclined to surrender the massive profits they generate year after year for the future wellbeing of the planet. As a result, it’s a guarantee that they will employ any means at their disposal (including well-established, well-funded ties to friendly politicians and political parties) to slow the transition to renewables. In the United States, for example, the politicians of coal-producing states are now at work on plans to block the Obama administration’s “clean power” drive, which might indeed lead to a sharp reduction in coal consumption. Similarly, Exxon has recruited friendly Republican officials to impede the efforts of some state attorneys general to investigate that company’s past suppression of information on the links between fossil fuel use and climate change. And that’s just to scratch the surface of corporate 66 x The Trial Lawyer

efforts to mislead the public that have included the funding of the Heartland Institute and other climate-changedenying think tanks. Of course, nowhere is the determination to sustain fossil fuels fiercer than in the “petro-states” that rely on their production for government revenues, provide energy subsidies to their citizens, and sometimes sell their products at below-market rates to encourage their use. According to the International Energy Agency (IEA), in 2014 fossil fuel subsidies of various sorts added up to a staggering $493 billion worldwide — far more than those for the development of renewable forms of energy. The G-20 group of leading industrial powers agreed in 2009 to phase out such subsidies, but a meeting of G-20 energy ministers in Beijing in June failed to adopt a timeline to complete the phase-out process, suggesting that little progress will be made when the heads of state of those countries meet in Hangzhou, China, this September. None of this should surprise anyone, given the global economy’s institutionalized dependence on fossil fuels and the amounts of money at stake. What it doesn’t explain, however, is the projected growth in global fossil fuel consumption. A gradual decline, accelerating over time, would be

consistent with a broad-scale but slow transition from carbon-based fuels to renewables. That the opposite seems to be happening, that their use is actually expanding in most parts of the world, suggests that another factor is in play: addiction. We all know that smoking tobacco, snorting cocaine, or consuming too much alcohol is bad for us, but many of us persist in doing so anyway, finding the resulting thrill, the relief, or the dulling of the pain of everyday life simply too great to resist. In the same way, much of the world now seems to find it easier to fill up the car with the usual tankful of gasoline or flip the switch and receive electricity from coal or natural gas than to begin to shake our addiction to fossil fuels. As in everyday life, so at a global level, the power of addiction seems regularly to trump the obvious desirability of embarking on another, far healthier path. On A Fossil Fuel Bridge To Nowhere Without acknowledging any of this, the 2016 EIA report indicates just how widespread and prevalent our fossilfuel addiction remains. In explaining the rising demand for oil, for example, it notes that “in the transportation sector, liquid fuels [predominantly petroleum] continue to provide most of the energy consumed.” Even though “advances in nonliquids-based [electrical] transportation technologies are anticipated,” they will not prove sufficient “to offset the rising demand for transportation services worldwide,” and so the demand for gasoline and diesel will continue to grow. Most of the increase in demand for petroleum-based fuels is expected to occur in the developing world, where hundreds of millions of people are entering the middle class, buying their first gas-powered cars, and about to be hooked on an energy way of life that should be, but isn’t, dying. Oil use is expected to grow in China by 57% between 2012 and 2040, and at a faster rate (131%!) in India. Even in the United States, however, a growing preference for


sport utility vehicles and pickup trucks continues to mean higher petroleum use. In 2016, according to Edmunds. com, a car shopping and research site, nearly 75% of the people who traded in a hybrid or electric car to a dealer replaced it with an all-gas car, typically a larger vehicle like an SUV or a pickup. The rising demand for coal follows a depressingly similar pattern. Although it remains a major source of the greenhouse gases responsible for climate change, many developing nations, especially in Asia, continue to favor it when adding electricity capacity because of its low cost and familiar technology. Although the demand for coal in China — long the leading consumer of that fuel — is slowing, that country is still expected to increase its usage by 12% by 2035. The big story here, however, is India: according to the EIA, its coal consumption will grow by 62% in the years surveyed, eventually making it, not the United States, the world’s second largest consumer. Most of that extra coal will go for electricity generation, once again to satisfy an “expanding middle class using more electricity-consuming appliances.” And then there’s the mammoth expected increase in the demand for natural gas. According to the latest EIA projections, its consumption will rise faster than any fuel except renewables. Given the small base from which renewables start, however, gas will experience the biggest absolute increase of any fuel, 87 quadrillion BTUs between 2012 and 2040. (In contrast, renewables are expected to grow by 68 quadrillion and oil by 62 quadrillion BTUs during this period.) At present, natural gas appears to enjoy an enormous advantage in the global energy marketplace. “In the power sector, natural gas is an attractive choice for new generating plants given its moderate capital cost and attractive pricing in many regions as well as the relatively high fuel efficiency and moderate capital cost of gas-fired plants,” the EIA notes. It is also said to benefit from its “clean” reputation (compared to coal) in generating electricity. “As more governments begin implementing

national or regional plans to reduce carbon dioxide emissions, natural gas may displace consumption of the more carbon-intensive coal and liquid fuels.” Unfortunately, despite that reputation, natural gas remains a carbonbased fossil fuel, and its expanded consumption will result in a significant increase in global greenhouse gas emissions. In fact, the EIA claims that it will generate a larger increase in such emissions over the next quarter-century than either coal or oil — a disturbing note for those who contend that natural gas provides a “bridge” to a green energy future. Seeking Treatment If you were to read through the EIA’s latest report as I did, you, too, might end up depressed by humanity’s addictive need for its daily fossil fuel hit. While the EIA’s analysts add the usual caveats, including the possibility that a more sweeping than expected follow-up climate agreement or strict enforcement of the one adopted last December could alter their projections, they detect no signs of the beginning of a determined move away from the reliance on fossil fuels. If, indeed, addiction is a big part of the problem, any strategies undertaken to address climate change must incorporate a treatment component. Simply saying that global warming is bad for the planet, and that prudence and morality oblige us to prevent the worst climate-related disasters, will no more suffice than would telling addicts that tobacco and hard drugs are bad for them. Success in any global drive to avert climate catastrophe will involve tackling addictive behavior at its roots and promoting lasting changes in lifestyle. To do that, it will be necessary to learn from the anti-drug and anti-tobacco communities about best practices, and apply them to fossil fuels. Consider, for example, the case of anti-smoking efforts. It was the medical community that first took up the struggle against tobacco and it began by banning smoking in hospitals and other medical facilities. This effort was later extended to public facilities — schools, government

buildings, airports, and so on — until vast areas of the public sphere became smoke-free. Anti-smoking activists also campaigned to have warning labels displayed in tobacco advertising and cigarette packaging. Such approaches helped reduce tobacco consumption around the world and can be adapted to the anti-carbon struggle. College campuses and town centers could, for instance, be declared car-free — a strategy already embraced by London’s newly elected mayor, Sadiq Khan. Express lanes on major streets and highways can be reserved for hybrids, electric cars, and other alternative vehicles. Gas station pumps and oil advertising can be made to incorporate warning signs saying something like, “Notice: consumption of this product increases your exposure to asthma, heat waves, sea level rise, and other threats to public health.” Once such an approach began to be seriously considered, there would undoubtedly be a host of other ideas for how to begin to put limits on our fossil fuel addiction. Such measures would have to be complemented by major moves to combat the excessive influence of the fossil fuel companies and energy states when it comes to setting both local and global policy. In the U.S., for instance, severely restricting the scope of private donations in campaign financing, as Senator Bernie Sanders advocated in his presidential campaign, would be a way to start down this path. Another would step up legal efforts to hold giant energy companies like ExxonMobil accountable for malfeasance in suppressing information about the links between fossil fuel combustion and global warming, just as, decades ago, antismoking activists tried to expose tobacco company criminality in suppressing information on the links between smoking and cancer. Without similar efforts of every sort on a global level, one thing seems certain: the future projected by the EIA will indeed come to pass and human suffering of a previously unimaginable sort will be the order of the day.

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How The

Right Wing Denial Machine Distorts The

Climate Change Discourse

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By Dr. Michael Mann


Several months ago, on June 17, I provided testimony about the threat of human-caused climate change to the Democratic Party platform drafting committee in Phoenix, Arizona. Fittingly, my testimony was just one day before record heat struck Phoenix. At the beginning of my testimony, I made the point, using slightly lofty language appropriate for the occasion, that the impacts of climate change are now so profound that we no longer need sophisticated signal-detection machinery to see them: “I am a climate scientist and have spent much of my career with my head buried in climate model output and observational climate data, trying to tease out the signal of human-caused climate change. What is disconcerting to me and so many of my colleagues is that these tools that we’ve spent years developing increasingly are unnecessary because we can see the impacts of climate change playing out in real time on our television screens in the 24 hour news cycle. Regardless of how you measure the impacts of climate change — whether it be food, water, health, national security, our economy — climate change is already taking a great toll. And we see that tool in the damage done by more extreme floods, like the floods we’ve seen over the past year in Texas and in South Carolina. We see it in the devastating combination of sea level rise and more destructive hurricanes which has led to calamities like “Superstorm” Sandy and what is now the perennial flooding of Miami Beach. We see it in the unprecedented drought, like that which continues to afflict California, a doubling in the area of wildfire, fire burning in the western U.S. and indeed, in the record heat we may see this weekend in Phoenix. The signal of climate change is no longer subtle. It is obvious.” My point — that we don’t need sophisticated techniques to identify the human fingerprint present in e.g. the doubling of extreme heat or the tripling (in fact) of western wildfire that we have seen in the U.S. in recent decades, ought to be clear to any honest observer. It would be absurd to conclude that I was arguing that climate models and climate data are no longer necessary in climate science, especially given that they continue to form the bread and butter of my own scientific research (I’ve published over a dozen scientific articles using climate models and climate data during the past year alone). So you can imagine my shock — yes, shock — that climate change deniers and the conservative media outlets that serve as mouthpieces for them would seek to convince their readers of just that.


It is an instructive ontological exercise to follow this particular affair — from its inception through the latest developments, sort of like observing a deviant version of the game “telephone” (or “Chinese whispers” for British readers) wherein the participants are actually trying to distort the message as it is passed along from one person to the next. It all started on Monday, June 27 with Steven J. Milloy and his outlandishly untruthful claim “Michael Mann says there is no need for statistics.” Milloy, who actually calls himself the “junk man” with no apparent sense of irony, is a denier-for-hire who happily takes money from tobacco interests, chemical interests and of course fossil fuel interests to do their dirty work, attacking seemingly any scientist whose findings threaten their financial bottom line. Milloy frequently publishes columns in the notorious Washington Times. Which brings us to the next stage of the affair… Later that same day, the Washington Times — a paper founded by Rev. Sun Myung Moon of the Unification Church, ran a piece by one Valerie Richardson

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entitled Michael Mann, scientist: Data ‘increasingly unnecessary’ because ‘we can see climate change.’ Somehow “tools” have become “data.” It almost seems like they’re going out of their way to misrepresent my statements, doesn’t it? Almost as if to demonstrate that they too have absolutely no sense of irony, the Washington Times referred to me in the piece as a “Leading climate doomsayer” (the Unification Church, you see, is often considered a doomsday cult). The Washington Times also happens to be closely tied to ALEC — a Koch Brothersfunded organization that promotes climate change denialism and subverts efforts to incentivize renewable energy. Next up at bat, Tucker Carlson’s The Daily Caller, which later that day pushed the egregiously false headline Famed Climate Scientist Claims Data Now ‘Unnecessary’ To Measure Global Warming. Understand that we have now gone all the way from what I actually said (that climate change impacts have become so profound now that we often don’t need fancy techniques to see them) to something so patently absurd I couldn’t possibly have said it (that we don’t need

data to measure global warming). The Daily Caller, incidentally, is so fully immersed in Koch cash that is listed as a “partner organization” of the Charles Koch Institute. Witness now, after a two week hiatus, the hand-off from the Koch Brothers to the Scaife Foundations, the Pittsburgh Tribune-Review, to be specific, which was founded by the now-deceased Richard Mellon Scaife. On July 13, the Tribune-Review perpetuated the smear with a climate change-denying editorial containing the farcical howler “[Mann] says facts no longer are necessary to substantiate the climate change story line.” Just when you thought the distortion couldn’t get more egregious… One day later, on July 14, the execrable Tribune op-ed was republished on the right wing website GOPUSA, a website connected to — you guessed it — Richard Mellon Scaife (though a bit of detective work is required to connect the dots). Oil baron Richard Mellon Scaife and his empire were behind what Hillary Clinton famously referred to as the “vast right-wing conspiracy” to take down her husband, President Bill Clinton (for the


record, she was correct). Certainly, you’re thinking, it must be a coincidence that nearly every player in this latest episode seems to be tied in some way to either the Koch Brothers or Scaife Foundations. Or maybe not so much… Richard Mellon Scaife and the Scaife Family Foundations are, along with the Koch Brothers, the greatest private funders of climate change denialism, having stepped up their funding in recent years as fossil fuel corporations like ExxonMobil have come under increased scrutiny for their funding of climate change denial. As I discuss in my book The Hockey Stick and the Climate Wars about the attacks against me by climate change deniers looking to discredit the iconic “Hockey Stick” graph my co-authors and I published in the late 1990s (p. 64): Wealthy privately held corporations and foundations with close interests in, or ties to, the fossil fuel industry, such as Koch Industries and the Scaife Foundations, have become increasingly active funders of the climate change denial campaign in recent years. Unlike publicly traded companies such as ExxonMobil, these private outfits can hide their finances from public view, and they remain largely invulnerable to outside pressure. In recent years, as ExxonMobil has been pressured by politicians on both sides of the aisle to withdraw from funding the climate change denial movement, Koch and Scaife have stepped up, contributing millions of dollars to the effort. Koch funding played a major role in the faux scandal known as “climategate” which involved the misrepresentation of scientists based on out-of-context quotes (sound familiar?) taken from emails of theirs that had been stolen off a university computer server in the UK (p. 220): One report showed that twenty or so organizations funded at least in part by Koch Industries had “repeatedly

rebroadcast, referenced and appeared as media spokespeople” in stories about climategate. Meanwhile, the Scaifes funded many of the personal attacks intended to discredit me and the “Hockey Stick” (p. 228): In mid-January 2010, a group known as the National Center for Public Policy Research (NCPPR), which receives funding from the Scaife Foundations, led a campaign to have my NSF grants revoked. The perverse premise was that I was somehow pocketing millions of dollars of “Obama” stimulus money simply because I was a coinvestigator on several recently funded NSF grants. These absurd distortions were--no surprise--promoted by Glenn Beck, Rush Limbaugh, and others of similar persuasion. and (p. 229): Two Scaife-funded groups… the Southeastern Legal Foundation and the Landmark Legal Foundation, had swung into action. The latter had already sued the University of Massachusetts and University of Arizona to obtain copies of my personal e-mails with my two hockey stick coauthors, while in May 2010 the former demanded extensive information from the NSF regarding grants that had been made to me as well as to several of my colleagues at Penn State, the University of Chicago, the University of Washington, the University of Arizona, and Columbia University. It began to strike me as curious that so many of the demands that I be investigated could be traced back to organizations with ties to the Scaife Foundations. The Commonwealth Foundation, a Pennsylvania organization that is the recipient of considerable Scaife largess, for example, had been pressuring Penn State University to fire me since climategate broke in late November 2009. It managed to get the sympathetic Republican

chair of the Pennsylvania state senate education committee to threaten to hold Penn State’s funding hostage until “appropriate action is taken by the university against associate [sic] professor Michael Mann.” Indeed, it was the Commonwealth Foundation attacks that essentially forced Penn State to launch its initial inquiry into the various allegations against me in December 2009 (similar inquiries and investigations of CRU scientists were initiated in the United Kingdom). The Commonwealth Foundation kept the pressure on for months through a barrage of press conferences and press releases attacking me personally and criticizing Penn State for its supposed “whitewash” treatment of any number of supposed offenses. It also ran daily attack ads against me in our university newspaper The Collegian for an entire week in January and helped organize a protest rally against me on campus. It is likely that these attacks forced Penn State’s hand yet again, leading it, following the completion of the initial inquiry in February 2010, to move to a formal investigation, despite having found no evidence of misconduct in the initial inquiry phase. What is the take-home message here? As we approach the November presidential election, it is clear that polluting interests and other bad actors are mobilized. They are doing their best to continue the attacks on science and scientists whose findings threaten their bottom line, to distract the public, to promote climate change denial propaganda and to support politicians who will support their agenda of denial and inaction. The best defense is to study the positions of the candidates and make sure that climate action is at the top of your agenda when you go to the voting booth this fall. This article reprinted with permission from EcoWatch.com.


Republicans

Are Waking Up To The Threats Of Climate Change By Farron Cousins

For too long, climate change has been a partisan issue in American politics. In spite of the overwhelming scientific data about the role that human beings have played in the warming of the planet, the Republican Party of the United States has consistently refused to acknowledge the scientific consensus, and even its presumptive nominee for the presidency this year has outright denied the existence of climate change and repeatedly referred to it as a “hoax.” But here’s where things get interesting: The Republican denial of climate change is far more prevalent in elected Republicans than average conservative voters. In fact, the latest round of polling shows that close to half of Republican voters accept the scientific consensus on climate change, which is an increase of nearly 20% over the last two years on this issue. So there is obviously a sharp divide between the views of the voters and the views of Republican politicians. The views of Republican elected officials in Washington, D.C. and those funding the Republican Party do not reflect the attitudes of the voters on this issue anymore, and that’s a phenomenal step forward. This divide can mostly be explained by following the money. According to Open Secrets, since the mid-1990s, at least 75% of the political contributions from the oil and gas industries went to Republicans, with more than 87% going to Republicans over Democrats in the 2012, 2014, and 2016 elections. The total amount given by these industries is in the hundreds of millions. 72 x The Trial Lawyer

But the partisan denial problem goes further than just one political part. It stretches all the way through conservative media outlets, particularly those owned by Rupert Murdoch (Fox News, The Wall Street Journal, and countless others.) This right wing echo chamber has played a major role in shaping Republican policy towards the environment, and has helped to keep Republican voters in the dark about the realities of climate change. In response to this flood of fossil fuel money and the conservative media echo chamber, a conservative climate activist named Jay Faison has decided to fight fire with fire, and has personally pledged to spend $5 million through his ClearPath political action fund to help elect Republicans who want to fight climate change. Faison laid out his ideas in an interview posted by The New York Times: “What we’re trying to do is prove to the party, through these races, that clean energy wins races, to build a political safe space for the Republican Party to talk about this.” Faison’s ClearPath fund has already announced plans to back two incumbent Senate Republicans and three Incumbent Republican members of the House of Representatives, and all are currently in very tight races. As The New York Times points out,

Democrats are beginning to use climate change denial against Republican candidates, tying both the antienvironmental stances of Republican lawmakers like James Inhofe and Mitch McConnell to the entire party. Faison is hoping to prove that environmentalism knows no party limit, and that you can still be a Republican and an environmentalist. But there is one drawback to Faison’s plan, and that is that some of the candidates he’s backing have not necessarily followed through on their promises to fight for the environment. For example, Representative Carlos Curbelo from Florida has spoken extensively about the need to address climate change while also opposing President Obama’s Clean Power Plan that would reduce carbon emissions and cut down on pollution. According to Curbelo, the plan puts too many restrictions on businesses, and that always trumps environmental protection. The same can be said of ClearPath’s decision to help Senator Kelly


Ayotte, who has acknowledged that climate change is real, but has also stated that mitigating climate change should not cost us any jobs. Ayotte also voted against allowing the EPA to regulate greenhouse gases and voted in favor of increasing domestic oil and gas drilling. Ayotte has a 23% rating from the League of Conservation Voters, which the group says indicates that she is an antienvironmental candidate. The road ahead is very tough for ClearPath and Faison, as it is a Herculean task to find a Republican candidate that actually has a pro-environmental record

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beyond their rhetoric. But luckily, Faison is not the only conservative trying to wake up the Republicans to the threats of climate change. The Partnership for Responsible Growth, a conservative organization, ran ads during the Republican National Convention on conservative media outlets showing Republican leaders like George W. Bush and Mitt Romney discussing the dangers of climate change, and urging other Republicans to do the same. The Partnership for Responsible Growth has also taken out a series of

ads in the Rupert Murdoch-owned Wall Street Journal, calling out the publication’s long history of climate change denial. Fox News refused to air the ads that called out the network and its hosts for their constant climate change denial. Other groups, including ConservAmerica, are trying to force the issue of climate change onto Republican candidates, encouraging them to not only accept the science of climate change, but to rally behind solutions to help save the planet. And, believe it or not, there are actually a few elected Republicans trying


to change the party from the inside. Republican politicians are hoping to push their party in the correct direction on climate change from within. For example, the Republican mayor of Carmel, Indiana, Jim Brainard, has worked for years to make his city less reliant on fossil fuel transportation by opening up new bicycle and pedestrian routes. When pressed by Grist as to why he supports a party that openly denies climate change, Brainard offered the following explanation:

There are multiple paths to the same result. Conserve is the root of the word conservative. We ought to be preserving our fossil fuels if they’re needed in a future emergency. We wouldn’t have to be involved in as many of the wars we’ve been involved in if we weren’t protecting our flow of oil. Whether one chooses to believe the scientists or not, there are many reasons to reduce our use of fossil fuels. In terms of science, a conservative ought to err on the possibility that [scientists] might be right.

All of these efforts are commendable and, hopefully, just the first of many shifts within the Republican Party towards accepting scientific evidence. It is unfortunate that an issue such as climate change policy is still partisan, but as the effects of climate change continue to become more and more obvious — and nonpartisan in their devastation — it will soon be too difficult for anyone, even the staunchest of deniers, to continue on their current path.


It Is Time To Rein In The Robber Barons … Again By Thom Hartmann & The Daily Take Team I’M GOING TO LET YOU ON A LITTLE SECRET ABOUT MANY OF THE CEOS OF THE US’S LARGEST COMPANIES: The biggest decision that they make these days, is how best to divvy up the wealth that they’ve stolen from US working families and middle class. Seriously, according to research by Lawrence Mishel and Jessica Schieder at the Economic Policy Institute, CEOs in the United States’ largest firms are raking in an average of $15.5 million in compensation. That’s an average compensation of 276 times the annual average pay of the typical worker! And that’s down from 2014, when the average CEO of the United States’ largest firms earned 302 times the average pay of a typical US worker.

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But don’t feel too bad for the poor CEOs who are only earning $15.5 million as opposed to the $16.3 million they earned in 2014, because their earnings are still up over 46 percent since President Obama took office. The fact is, CEO compensation only appears to be down because so much of their compensation comes in the form of stock options, which means that the market slowdown in 2015

is really the only reason that it looks like CEOs earned relatively less than they did in 2014. Despite the market downturn and the decrease in top-CEO pay in 2015, the average compensation for a CEO of one of the United States’ largest firms is still up over 940 percent since 1978, back when CEOs “only” earned about $1.5 million per year, roughly 30 times more than the average worker.

The Trial Lawyer x 77


In Mishel and Schieder’s analysis, they point out that most revolution” in the 1980s, firms have been artificially inflating major CEOs simply extract wealth from the economy without their stock value by buying back their own stock from the adding to the economy in any truly productive manner. public to decrease the number of available shares and thus They write that, “We have argued that high CEO pay artificially drive up the price of the stock. reflects rents — concessions CEOs can draw from the The nation’s 1 percent has been making a killing from economy not by virtue of their contribution to economic artificially inflated stock prices for nearly four decades, and output but by virtue of their position. Consequently, CEO that concentration of wealth and power has come at the direct pay could be reduced and the economy would not suffer any expense of the US working and middle class. loss of output.” Between 1948 and 1973, productivity and wages tracked And that tells us something very important, and very very closely, productivity increased by 96.7 percent and wages troubling: Right now we’re living in another gilded age, and went up 91.3 percent. the CEOs of the largest US But between 1973 and 2013 corporations are nothing but 21st (that’s the same time period when While CEO pay has increased century robber barons. stock buybacks effectively de-linked by over 940 percent since 1978, While CEO pay has increased stock value from economic output), average worker pay has only by over 940 percent since worker productivity increased increased by 10.3 percent, 1978, average worker pay has meaning that while top CEOs have by 74.4 percent, and wages only only increased by 10.3 percent, increased by 9.2 percent. seen their earnings go up by $15 meaning that while top CEOs And that’s been really harmful million a year since 1978, average have seen their earnings go up by to our economy, because it’s a basic workers are only earning about $15 million a year since 1978, economic fact that the wages of $5,000 a year more on average. average workers are only earning average workers, the people who about $5,000 a year more on actually buy stuff, are what drive real average. economic growth. It wasn’t always this way. CEO pay didn’t start tracking to It’s no coincidence that as stock prices grew since 1979, the stock market until the early 1980s. the top 1 percent of earners in the US saw their wages increase As economist JW Mason points out, one major reason by 138 percent, while the entire bottom 90 percent of US for the change was the “shareholder revolution” in the early earners only saw their wages increase by 15 percent. 1980s, when incentives under the Reagan administration Because the top 1percent, and especially the CEOs and made it so that companies became more interested in buying board members of the largest firms in the US, are nothing but back their own stock from the public than they were in a new generation of robber barons. investing in new projects or hiring US workers. Modern CEOs of most of the US’s largest firms don’t That turn towards stock buybacks and away from create anything, many don’t even steer their companies to reinvestment in making companies grow disconnected stock become more economically productive. value and dividend payouts from real economic output, and They simply siphon wealth from the US working and priced out smaller investors while concentrating wealth and middle class, from average investors, and from the US voting power into the hands of a few economic elite who serve economy as a whole. as corporate executives and board members. The biggest decision these modern robber barons make, is But up until 1993, the top CEOs still “only” made how best to divvy up that stolen wealth among themselves. between 50 times and 90 times what a typical worker would And it’s time to rein them in. make. We need to raise the highest marginal income tax rates to Then, Bill Clinton and Congress passed a law placing a $1 where they were before the insane policies of Reagan’s tricklemillion cap on how much a company can deduct for executive up economics, and we need to end corporate tax subsidies pay as a business expense. and close corporate tax loopholes that let companies evade US And that sounds like a good plan, because it places a hard taxes and stash their earnings overseas. limit on how much a firm can pay out to its executives before It would be a good thing for the US economy to set higher taking on giant tax burdens. corporate tax rates for companies that pay their executives But there was a huge exception written into the law that hundreds of times more than their average workers. made the stock buyback situation even worse. We need to make it so that a company’s shareholders vote Under that law, compensation that’s based on a company’s on how top executives are compensated, instead of allowing “performance” is exempt from that $1 million limit, and since the old boys club of corporate executives and board members a company’s stock market value is supposed to be a measure of to choose their own compensation. economic performance, companies started simply paying their It’s time to make the US economy work for everyone, executives in stock shares and options. and to take real action to reign in these robber barons and But remember, stock options don’t actually reflect a firm’s the obscene level of income inequality they’ve created in this performance anymore, because ever since the “shareholder country. 78 x The Trial Lawyer


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The Trial Lawyer x 79


THE

GUN INDUSTRY REALLY DOESN’T CARE ABOUT

POLICE DEATHS By Martha Rosenberg

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After Miami police officer Jose Somohano was killed and three others wounded in 2007 with a highpower, assault style rifle, Miami-Dade Mayor Carlos Alvarez, a former police officer and police director said, “There’s absolutely no reason I can see having these weapons out on the street.” The International Association of Chiefs of Police agreed and urged Congress to pass “an effective assault weapons ban,” condemning the “firepower available to criminals.’’

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82 x The Trial Lawyer


Two years later in Oakland, four police officers were killed with high-power, assault weapons and in Pittsburgh, three officers were killed and two injured with such weapons. The Pittsburgh murderer, Richard Poplawski, was a violent white supremacist who bought a semi-automatic AK-47-style legally despite his involvement with hate groups, domestic violence charges and an order of protection against him. Like the Dallas and Baton Rouge police murderers, also legal gun owners, he had the “right” to high-power weapons designed to kill many in seconds, says the NRA. Why is the NRA okay with assault weapons, armor-piercing bullets and high capacity magazines — even when the law enforcement officers it says it supports are sniped, ambushed and assaulted? The reason, according to Joshua Holland writing in the Nation, is the insurgency interpretation of the Second Amendment “holds that Americans must have the right to own military-style weapons because a heavily armed populace is the last bulwark against a tyrannical government running amok.” Without civilian owned military-style weapons, goes the thinking, we could turn into tyrannies like Canada, Australia, New Zealand, Japan, England, Scotland, Wales, Northern Ireland and the 24 countries of the E.U. “The whole point of firearm ownership is that it allows civilians to fight against agents of the government, be they law enforcement officers or members of the American military,

should a situation arise when the government grossly violates the rights of American citizens,” says a gun advocate Holland quotes — in a chilling defense of vigilantism. How can the gun lobby claim patriotism while hating the government asked veteran newsman Bill Moyers this week. “On the one hand, its supporters are mostly conservatives who believe in law and order, the kind of folks who value social and familial hierarchy and respect for authority. On the other hand, the group preaches contempt for government — and police are the spear point of government authority.” After the shooting of four Miami police officers in 2007, the Washington Post noted that since the 2004 expiration of the federal assault weapons ban “the guns, once found solely in the hands of soldiers, are aimed at officers on patrol,” and that “already 12 of the 60 homicides have involved the high-power guns.” John Rivera, president of the Dade County Police Benevolent Association at the time, said police did not even have a “fighting chance” against such weapons. The killing of law enforcement officers in Dallas and Baton Rouge demolishes all the gun lobby’s pro-gun arguments from the real problem being “gun-free zones” to the claim that guns provide defense against “bad guys.” Not in these cases. And, speaking of bad guys, the killings also demolish the gun lobby lie that laws are worthless because bad guys don’t follow laws. These bad guys followed the laws perfectly.


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.

2016 President Thomas V. Girardi

Dino S. Colombo Attribute my success to: My parents who taught me to work hard and instilled in me very good common sense. Which is not very common anymore. Notable Verdict or Settlement: $21,500,000 settlement in a product liability case with the help of my good friend John Romano. Fantasy job: Weatherman First job ever: Cutting grass for the Bridgeport Little League in Bridgeport, West Virginia. Proudest moment as a trial lawyer: Obtaining a six-figure verdict for a gentleman who was punched in the face by a physician in an Emergency Department. The physician claimed that the patient was drug seeking and he acted in self-defense. The pre-trial offer was $1,000. While this verdict did not make national news, this verdict meant everything to the family who was vindicated and received justice against an arrogant and abusive physician.

Guilty pleasure: A great glass of Cabernet. What I like to do in my time off: Fishing with my dad.

What is your advice for a young attorney? Seek the advice and counsel of older and more experienced lawyers. You can learn what to do and, perhaps more importantly, what not to do by watching and listening to more experienced attorneys. How do you relax? Travel. Did I mention a great glass of Cabernet? What was your most embarrassing moment in life? Running through a parking lot to get out of the rain and tripping on the curb and falling flat on my face in front of a bunch of people. Not cool!

One word that describes me: Blunt What keeps you awake at night? What the heck my kids are doing???? What paper do you generally read daily? The Dominion Post (Morgantown, WV) and USA Today The Trial Lawyer x 85


Stephen J. Burg 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. Each of our distinguished 40 Under 40 members are striving to build law practices which encompass the knowledge, skill, experience 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

First job ever: At the age of 10 I worked as a file clerk at a law firm. I was in charge of opening mail and physically putting the documents into the appropriate files. Proudest moment as a trial lawyer: I have been fortunate to have several great moments as a trial lawyer. One of my first clients was a woman who came into my office and began to cry. She said she had always hated lawyers and couldn’t believe she was about to hire one. One year earlier she had been hit by a drunk driver. She was a small business owner and didn’t have any health insurance to get the care she needed. Her business of eleven years soon failed and her house was foreclosed on. She was living in her van. I was able to help stabilize her life and get her a recovery so she could start a new chapter in her life. Another proud moment as a trial lawyer was trying my first case with my dad in federal court where we obtained a $4.4 million dollar verdict.  Notable Verdict or Settlement: I am always proud when I can get my clients the compensation they deserve. On a personal level one verdict stands out. Opposing counsel said I could never win an auto crash case where there was no physical damage to my client’s vehicle. He offered what he referred to as “nuisance value.” The first morning of trial I walked in and saw a number of lawyers in the gallery, including a colleague from law school. She was working for the defense firm and said her and the other lawyers at her office were told to come watch a beat down. After the week-long trial, the jury came back with a verdict of just under a half a million dollars in one of the most conservative jurisdictions in the state.  Guilty pleasure: Brazilian Jiu-Jitsu What I like to do in my time off: I love spending time with family and I appreciate the special moments in life. 

of bias and undue influence, and to protect

One word that describes me: Competitive

the American right of trial by jury!

What is your advice for a young attorney? If you think it is hard today, it’s going to be harder tomorrow. Roll up your sleeves, give it everything you have, and never look back.

Meet one of our executive committee members. 86 x The Trial Lawyer


TRAVELINGTRIALLAWYER

LARRY JONES and DUBAI By Cathy Deloney Corbo

Question: You have earned numerous multi-million dollar trial verdicts and qualified as a tried-and-true, in the trenches kind of trial lawyer, so where do you spend your favorite vacation getaways? Answer: For Traveling Trial Lawyer Larry Jones, favorite vacation getaway is his vacation home in Watercolor, Florida in the Panhandle. But his most exotic and special trip was to Dubai. Larry is the Jones of Jones Ward PLC in Louisville, Kentucky. It is a national class action and mass torts law firm Jones founded in 2010 with partner Jasper Ward. They represent clients in nearly

every part of the United States. Larry admits, “Dubai was a special vacation spot for us because of the educational opportunities provided by the trip. No one in my family had ever visited

a Mosque, nor did we have anything other than a perfunctory understanding of Islam. As is the case with many Americans, I will admit that we had certain preconceived notions about the The Trial Lawyer x 87


Islamic religion and its culture.” Larry continues, “Surprisingly, our post-trip conclusions were that there are more similarities than differences between us. Not only are the fundamentals of Christianity and Islam strikingly similar on a broad scale, I was thrilled that my children were able to conclude for themselves that kids raised in Dubai are not very different from themselves. Perhaps Donald Trump should take a fact-finding trip abroad in hopes of reaching the same conclusions.” Larry manages a pharmaceutical litigation docket that requires him to travel worldwide but still finds the time to reward his wife (law school sweetheart) and two kids with fun and unique vacation spots. Dubai certainly fit that bill. “Located on the Southeastern coast of the Persian Gulf, Dubai is the most populous city in the United Arab Emirates (UAE). With the influx of oil money beginning in the 1970s, Dubai has emerged as not only a global business and financial hub but also as a tourism haven for world travelers,” Larry shares. Larry began his career at a prominent business litigation boutique firm, representing some of the largest companies in the world. Eventually Larry followed his heart and started a firm that would help people. “We focus on pursuing big companies who hurt people. We regularly pursue pharmaceutical companies, medical device manufactures, automotive manufactures and equipment manufacturers,” Larry expressed. He continues, “Hands down, the Burj Al Arab is the nicest hotel in Dubai. It is commonly described as the most luxurious hotel in the world. Some have even called it the only seven-star hotel in existence. If you are looking to splurge a little, you can’t go wrong with staying there.” Burj Al Arab is the third tallest hotel in the world and stands on an artificial island. It has a helipad near the roof and a fleet of white Rolls Royce with chauffeurs to drive you from the airport. The staff, including your personal butler, spoils you rotten 24/7. 88 x The Trial Lawyer


The marble covering 258,000 square feet of walls and flooring is the rarest. Genuine 24-carat gold leaf covers 22,000 square feet of the interior. The hotel has nine restaurants and bars, four swimming pools and access to the private beach. Named a Super Lawyer, Larry, in addition to appearing on NBC’s Today show and German Frontal 21 television news program advocating on behalf of his pharmaceutical clients, has also appeared on CNN, ABC, CBS, Fox and local television outlets throughout the United States. Additionally, newspapers around the world, including the Wall Street Journal, have published articles featuring Larry and his cases. He recommends, “If you bring along the family, however, you must spend a few days at the Atlantis Palm Resort. It is modeled from the popular Bahaman Atlantis resort. Thus, the kids can play in a luxurious water park, swim with the dolphins, visit the aquarium or just lounge at the beach. Or you can charter a helicopter tour of Dubai and its man-made islands.” Larry continues, “The Atlantis Palm Resort sits at the Apex of The Palm Jumeirah, which is one of the largest man-made islands in the world. The Palm Jumeirah is shaped like a palm tree and is a breathtaking site to see as you fly around Dubai. By and large, you will find a number of highend hotels, restaurants and second homes located on the branches of the palm tree. Because there is a monorail running down the trunk of the palm tree, getting around is pretty easy. As an aside, a local tour guide explained to us that many of the multi-million dollar second homes were actually owned by military officers, civil servants and political leaders from very poor foreign countries. I’ll let you make your own conclusions regarding how a civil servant could afford such luxurious accommodations.” Larry expounds on one of his proudest non-trial accomplishments. “On November 4, 2009, Governor Steve Beshear appointed me to serve as a Special Justice on the Kentucky

Supreme Court to replace a recused Justice. Besides being one of my most memorable legal experiences, it has provided the ammunition that allows me to remind my Kentucky Court of Appeals Judge wife that I still outrank her in the judicial hierarchy. Despite the seemingly adventurous appetite for travel, I’ll have to admit the Jones family isn’t very adventurous in their food choices.” Larry continues, “By and large, we seem to often gravitate to restaurants that cater to our undoubtedly American tastes. You can find a McDonald’s almost anywhere, even in Dubai, or a nice steak or seafood restaurant. A luxurious dining experience can be enjoyed in any of the nine signature restaurants at the Burj Al Arab hotel. Not only will the food be great, and the service impeccable, but you will also be treated to one of the most beautiful views in the world.” Invited to be a member as one of Kentucky’s top 100 Attorneys by the National Trial Lawyers, Larry is also a member of the Southern Trial Lawyers Association and the American Association for Justice. Larry shares, “If you are looking to experience the local flavor of Dubai, the various Souks (markets) are a great place to explore. Save your souvenir money for shopping at one of the Souks. Bargaining for lower prices are accepted and expected. The Mall of the Emirates also left our family with some lasting educational memories. With the exception of the mall dress code, and the steady stream of Lamborghini cars in the valet line, the atmosphere was typical of what you would see in an American Mall. I will never forget that my kids learned to snow ski inside one of the largest shopping malls in the world in the middle of the desert.” Larry adds, “When we weren’t running around visiting mosques, malls or markets, we enjoyed just hanging out on the beaches. Unlike beaches in the United States, you are likely to find yourself paying one of the locals for the experience of riding on the back of a camel up and down the beach. One of the memorable

experiences we enjoyed as a family was the Dubai Desert Safari Tour. Tour operators loaded the family in a SUV and drove you out to the isolated desert countryside. While the views were breathtaking, the ride can be stomach churning. Once you reach the middle of the desert, the tour guides find a tall sand dune and break out the surf boards allowing you to surf to the bottom. The tour usually concludes in the evening at a remote desert village, where you are treated with a traditional Dubai meal, belly dancing, henna tattoos, camel rides, etc.” The Jones family also breeds thoroughbred race horses in their spare time, Larry explains, “Growing up in Louisville, about three and a half miles from the historic Churchill Downs, home of the Kentucky Derby, my interest in racehorses began when I was a teenager and I would hotwalk (cooling the horse after it exercises) the racehorses. In 2015 we bought a small Kentucky horse farm, acquired several broodmares with Triple Crown bloodlines, and began our breeding operation. We also own interests in several racehorses that are kept at the racetrack. Naturally, we spent a day at the Meydan Racecourse, home of the Dubai World Cup, the richest thoroughbred horserace in the World. It is unlike anything you’ve ever experienced in the United States. In addition to its race and training tracks, the Meydan offers a 5-star hotel, a nine-hole golf course, a horseracing museum and several restaurants.” This Traveling Trial Lawyer adds, “The Jones family loves to travel. My wife and I grew up very poor. Therefore, we vowed early on that we would take our kids, daughter Riley and son Reed, all over the world. The greatest thing about international travel is that it seems to be the only acceptable excuse for not checking and responding to emails every five minutes. I can’t tell you how liberating it feels to create the out-of-office email that says I will be out of the country with very limited access to email or voice messages.” What a perfect excuse for a favorite vacation getaway. The Trial Lawyer x 89


RAISINGTHEBAR

Scott D. Peebles

Brittany A. Boswell

Jared L. Hausmann

90 x The Trial Lawyer

Simmons Hanly Conroy, a national litigation firm, is pleased to announce that attorneys Scott D. Peebles, Brittany A. Boswell and Jared L. Hausmann have joined the firm, expanding the firm’s Asbestos and Complex Litigation practices. “We are enthusiastic about welcoming Scott, Brittany and Jared aboard to enhance our bench strength in our San Francisco, New York and Alton offices,” said Michael J. Angelides, managing shareholder of Simmons Hanly Conroy. Based in the firm’s San Francisco office, Peebles focuses his practice on helping those affected by asbestos-related diseases, such as mesothelioma, an aggressive form of cancer. He brings more than 15 years of litigation experience, which includes product liability and personal injury cases involving medical malpractice, auto accidents, toxic torts and other injuries caused by the negligence of others. Formerly an Assistant District Attorney for the Orleans Parish District Attorney’s office in New Orleans, Peebles also was an attorney with several law firms in San Francisco and Los Angeles. He earned his law degree from Louisiana State University’s Paul M. Herbert Law Center and a Bachelor of Arts from the University of New Orleans. Boswell is based in the firm’s New York office, where she focuses her practice on complex litigation matters, including mass torts, class actions and multidistrict litigation. Previously, she was an attorney in the Kansas City, Mo., office of Shook, Hardy & Bacon L.L.P., where she focused on all aspects of litigation. Boswell earned her law degree, cum laude, from the University of Missouri — Kansas City School of Law. She holds a Bachelor of Science, summa cum laude, from Eastern Nazarene College. Boswell also is active in pro bono work assisting underprivileged clients in matters relating to a broad range of domestic matters and criminal charges. She was named to the Diamond Level of the Missouri Bar’s Pro Bono Honor Roll for providing more than 500 hours of pro bono service in a single year. Hausmann works from the firm’s Alton office and also focuses his practice on asbestos litigation. Prior to joining the firm, he served as a law clerk in the Staff Attorney’s Office of the U.S. Court of Appeals for the Eight Circuit. Hausmann earned his law degree, magna cum laude, from St. Louis University School of Law. During law school, he served as a judicial intern for the U.S. District Court for the Eastern District of Missouri and for the Illinois Third Judicial Circuit. He holds a Bachelor of Arts from Eastern Illinois University.


Charles Bowen of The Bowen Law Group was awarded the Helen V. Head Business Advocate Award during the Savannah, Georgia Chamber of Commerce’s 2016 Business Expo & Awards Banquet. The Helen V. Head Business Advocate Award goes to the individual following in Helen Head’s footsteps of dedication to the community, a true advocate for small business in Savannah. This award is given annually at the Savannah Chamber of Commerce’s Expo & Awards Banquet to one area business who demonstrates a commitment to giving back to the community, as well as a belief in and support of small business. Helen Head was the first female board chairman with the Savannah Area Chamber of Commerce. She was also the first recipient of the Chamber’s Athena Award for her achievements as a woman in business. Bowen has been practicing corporate law for over twenty years. Since he opened the doors of The Bowen Law Group in 2012 as a full-service corporate law firm, Bowen has been involved in supporting every aspect of the Savannah business community. He has provided countless hours of counseling, authored numerous free publications for business owners, resolved disputes between governmental agencies, and has frequently assisted entrepreneurs get their companies started from the ground up. “I strive for my firm to be the one place that anyone who owns a business knows they can receive the assistance and advice they need in a professional yet comfortable atmosphere,” Bowen said. “From the beginning, I envisioned building a law practice that utilizes the skill and techniques of large metropolitan law firms while maintaining the benefits and attentiveness of a small local practice. I am very dedicated to the success of the local business community, and truly appreciate the trust and faith that so many diverse business clients have placed in me.” Charles and his wife, Lisa, have lived in Savannah for 20 years and their two children are enrolled in the local public school system. He believes in fostering the next generation of business leaders as demonstrated through his involvement with numerous advocacy programs, speaking to local high schools and business groups, and providing many free resources for business owners.For more information on The Bowen Law Group, visit thebowenlawgroup.com. For more information on the Helen V. Head Award, visit http://www. savannahchambernews.com/wp-content/uploads/2015/03/2015_Helen-V.-Head-Award.pdf

The Trial Lawyer x 91


THEGOOD,BAD,UGLY By Farron Cousins

The

Good Since the 2012 Presidential elections, more than a dozen states have enacted new, restrictive voting laws that are designed to keep certain people away from the polls. Those “certain people” are Democratic voters of color. And that’s not speculation, either. The Heritage Foundation’s president, Jim DeMint, and Wisconsin Republican Representative Glenn Grothman have both publicly admitted that these restrictive voting laws were designed to help Republicans win elections. These laws have been in the works since the 2000 election where the Supreme Court was able to step in and hand the presidency to George W. Bush. The Republican National Committee never wanted to see a race that close again, so they began working state-by-state to get these new laws in place. They include new photo ID requirements, shorter operating hours, shorter early voting periods, and fewer polling stations. All of these disenfranchise less-affluent voters, most of whom tend to be Democrats of color. But in their haste to restrict access to our democracy, Republican politicians ignored one basic fact: These laws are illegal. At least, that’s what courts all over the country are saying. As we approach election day 2016, judges in Texas, Wisconsin, North Dakota, and North Carolina have struck down repressive voting laws, claiming that the intent of the new restrictions is only to prevent certain sects of the population from being able to cast a ballot. These judges are operating in Republican-controlled states, and many are Republicans themselves, but they still understand that access to voting is the first component of a healthy democracy. They also understand that claims of “voter fraud” are overblown, and that there have been fewer than 39 cases of in-person voter fraud per year since 2000, and no state has had more than 100 cases in that 16-year span. While appellate courts are waiting to overturn these rulings (and Wisconsin already did) it is still uplifting to see red state judges taking a non-partisan stand to insure that all American citizens have the right to vote. 92 x The Trial Lawyer

The

Bad And while we’re talking about the right to vote, let’s take a look at our other laws designed to keep people from voting. In most areas of the United States, felons are forbidden from voting. One mistake on your record — maybe you were a careless young adult not thinking about the future, or perhaps you lost your cool at the wrong time — whatever it may be, you’ve lost your right to participate in our democracy. This is a gross injustice, and it is one that is also highly discriminatory, as prisons are disproportionately packed with people of color (studies show that white criminals are frequently handed lesser sentences than their African American counterparts, and can even have all charges dropped against them at higher rates.) It was for those very reasons that Virginia governor Terry McAuliffe signed a law that restored the right to vote to 11,000 Virginians who had spent time behind bars. The law was meant to extend the same rights to those who had served their sentences and had been rehabilitated. This was a great step forward for America, until the Virginia Supreme Court got their hands on it. In a vote that was divided along ideological lines, the Court said that the law had to go, saying that the governor did not have the authority to restore voting rights en masse — each case needed to be individually evaluated. McAuliffe called the ruling a disgrace, and he is spot on with that assessment. 50% of the people who would have regained their right to vote were African Americans, in spite of them representing just 20% of the Virginia population (again, because African Americans are disproportionately imprisoned compared to other races, and not because they are overwhelmingly guilty — the deck is stacked against them.) If we are to believe that prisons are truly reformatory, then we have to restore a felon’s right to vote. If they are reformed to the point that they can rejoin society, then there is no reason that they shouldn’t be allowed to participate in our democratic processes. After all, we have elected politicians that hold criminal records, and they get to vote on the laws that affect every one of us. It seems only fair that we give former convicts their right to vote their cellmates out of office.


The Ugly But Virginia is not the only state dealing with racist law enforcement practices. In fact, that’s a disease that infects the entire country. The Black Lives Matter movement arose out of the callous disregard that some police officers seem to have for the lives of black American citizens. The rate at which those who are trusted to keep us safe are murdering unarmed black people is alarming for an industrialized, non-third world country. In fact, the incidents are becoming so frequent that the media is no longer able to report on all of them, and the national outrage has died down since this just seems to be common practice. Even still, the Black Lives Matter movement presses on, and its cause is one that we should all be involved in. That’s what attorney Andrea Burton wanted to express with her decision to wear a Black Lives Matter pin in the courtroom while representing a client. But Youngstown, Ohio Municipal Court Judge Robert Milich wasn’t having it, and he sentenced Burton to five days in jail for refusing to take off the pin in his courtroom.

According to Judge Milich, the pin violated the court’s rule that no political paraphernalia could be worn in the courtroom — no political statements are allowed to be made through fashion, basically. But this interpretation grossly misrepresents what the Black Lives Matter movement is all about, and it paints a partisan picture over the murdering of African Americans at the hands of trigger-happy police officers. This is not about politics, it is not a Republican vs Democrat issue — This is basic human rights and the heavyhandedness of untrained police officers. No one should be killed by a police officer when they are complying with the law, and yet they are. No one should be killed by a police officer when they pose no threat, and yet they are. No one should be killed by a police officer when they haven’t even been charged with a crime, and yet they are. That’s what Burton’s pin was about, and it’s a shame that Judge Milich doesn’t seem to understand just how bad the problem has become in this country.


SENSATIONAL CASES

ACROSS 1. Accused defendant in the crime of the century, who never lived to attend his trial. 6. His beating sparked the case of Powell v. California, which in turn, sparked the 1992 California riots and fires. 11. Captivating containers. 12. Judge, whose most significant

decision involved his choice to chair a media circus instead of a trial with proper decorum. 14. Required movement as the judge enters the courtroom. 15. Kennedy clan member acquitted in a controversial rape case. 17. Individualized Educational Program. 18. New disjunctive contributed by the computer age (A or B, but not both). 19. To tinge with color.

21. Early modern jazz developed in the early 1940s. 22. Megawatt. 24. House of Lords. 25. Effective late-comer to the news game. 27. Transfer money or goods. 29. Famous victim of multiple stabbing by “loyal� senators. 31. Its trials are media events first, and proceedings of justice, second, if at all.


32. John Thomas, the famous U.S. high-school teacher, whose instruction about the Darwinian theory of evolution, became a cause celebre during the notorious Monkey Trial of 1925; he was represented by Clarence Darrow. 34. Kidnapping victim turned bank robber, she is the daughter of publisher William Randolph _ _ _ _ _ _. 36. Owner/Operator (Environmental law acronym). 37. Before the war. 39. Self-addressed envelope. 40. Inclined or disposed. 41. Accounts Receivables. 43. In the time of the king (Abbr). 44. Formative suffix found in a variety of commercial terms. 45. Go rapidly from the scene of the crime. 48. Place. 49. Murder for hire. 51. His disappearance in 1975 remains one of the most baffling unsolved mysteries. 53. The first criminal. 55. Gross receipts minus costs. 57. Official plot of ground. 58. Offered the first nolo contendere plea in history. 59. Homicide result. SENSATIONAL CASES DOWN 1. Defendant contender for the “Crime of the Century.” 2. Notorious father of New York serial killer. 3. Court order. 4. In a state of activity or excitement. 5. Drill instructor. 6. Controversial aborted fish eggs. 7. Doctor. 8. He would have provided us with the “Congressional Trial of the Century” had he failed to resign in 1974. 9. Employees’ Stock Option Plan. 10. Suffix indicating “one who does.” 13. Formal ownership. 16. “Everybody’s Talking at Me” (Singer’s initials). 20. Pursue in order to

seize. 21. Bank Note and Redemption Act. 23. Central Texas scene of siege, controversy, fire, and tragedy. 25. Community Awareness and Emergency Response (Program) (Environmental law acronym). 26. The hotel that brought down a president and gave Oliver Stone something to make a movie about. 28. Roll call answer. 29. Granted when the United States Supreme Court agrees to hear a case (Abbr). 30. A person who preys greedily on others, as by cheating. 31. The test that gets you in (or keeps you out of ) law school. 33. Poison Prevention Packaging Act. 35. Revised Statutes. 38. Kill (Slang). 40. An elevated place or structure, at which religious rites are performed. 42. Proprietor (Abbr).

44. Former part of certain United Provinces in India. 46. International Host (Abbr). 47. Restriction fragment length polymorphism, one method of DNAtesting used to link OJ to the murders of Nicole Simpson and Ronald Goldman (Abbr). 48. Political action committee. 50. International (Abbr). 52. Fetal alcohol syndrome. 54. The worse the crime, the greater the chance that this defense will come into play (Abbr). 56. Trusteeship Council (of the United Nations).


The Trial Lawyer, Fall 2016 • Game Of Thorns  

The Trial Lawyer is a magazine for trial lawyers and a voice for justice.

The Trial Lawyer, Fall 2016 • Game Of Thorns  

The Trial Lawyer is a magazine for trial lawyers and a voice for justice.

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