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FROMTHEPRESIDENT

Thomas V. Girardi • President

I can’t begin to tell you how wonderful it was to be involved in this organization that has so many great legal minds and have achieved so much under the law. I wanted to say a few words that we will remember. I couldn’t think of any. I decided to take words from some others.

Clarence Darrow was truly phenomenal… “Before the beginning, I arrive.” “From his cell in Atlanta Prison, he saw the flowers in the garden but not the bars at the window.” “I went in to do what I could … against the wave of hatred and malice.” “Better to say ‘don’t know,’ than to guess at answers.” Elie Wiesel, writer and Nobelist… “The opposite of love is not hate, it’s indifference.”

4 x The Trial Lawyer

Anna Gray Bennett, curator for textile arts, The Fine Arts Museums of San Francisco… “Each of us has known moments of striking disclosure, when the walls that limit our perceptions are pushed back to reveal the undreamed of.” Hildegard of Bingen, Abbess, scholar and composer… “Glance at the sun. See the moon and the stars. Gaze at the beauty of earth’s greenings. Now, think.” Thomas Paine, political activist and philosopher… “The most formidable weapon against errors of every kind is reason. I have never used any other, and I trust I never shall.”

Gerty Cori, biochemist and nobelist… “The love for and dedication to my work seems to me to be the basis for happiness.” Paulo Coelho, novelist and lyricist… “the world is changed by your example, not by your opinion.” I will never forget the experience. I cherish the friends I have made and I look forward to a continuing friendship. — Tom


The

Trial Lawyer

A MAGAZINE FOR TRIAL LAWYERS & A VOICE FOR JUSTICE

www.thetriallawyermagazine.com

Winter 2017 • Volume VI, Number VI 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 Kim Adams, Lori Andrus, Kelly Anthony, Sharon Boothe, Douglas W. Bowerman, Deborah Chang, Sonia Chopra, Farron Cousins, Cathy Deloney Corbo, Chauncey DeVega, Joseph DiNardo, Richard Eskow, Andrew Findley, Bill Fukui, Thom Hartmann, C. Richard Newsome, William Ourand, Nomi Prins, Martha Rosenberg, Harlan Schillinger, Robert J. Stoney 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. 4, Winter 2017 (ISSN 2159-7413) © 2017, The Trial Lawyer, Inc. — All rights reserved. Reproduction in whole or in part without permission is strictly prohibited. Application to Mail at Periodicals Postage Prices is pending at Dothan, Alabama, and additional mailing offices. POSTMASTER: Send address changes to The

ADVERTISING SALES EXECUTIVE Cathy Deloney Corbo CDeloney@TheTrialLawyerMagazine.com Office 866-662-2852 • Cell 334-718-1741 FINANCIAL MANAGER Eddie Terrell

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

WEBSITE MANAGERS Carey Henderson, Steve May

Produced and printed in the U.S.A.

GRAPHIC ARTIST Gina Roberson


CONTENTS

departments

DOWN TO BUSINESS 10 What You Don’t Know, You Don’t Know 14 Internet Marketing Enters The Branding Age FROM THE EXPERTS 18 4 Powerful Decisions of 2016 That Can Impact Your Mass Tort Practice 22 “Who’s In Charge?” Determining Hospitalist And Specialist Responsibility To The Co-Managed Patient PRODUCT WATCH 26 Defective Product Class Actions: California Versus Florida 30 CPSC Recommends Exemption From Confidentiality Agreements To Permit Disclosure Of Product Defects JUDGE THE BOOK 32 Law and Disorder — A Legal Thriller LEGAL BRIEFS 34 Stryker Defective Hip Recall, Essure Lawsuits, Pharma Companies Preventing Generics, Monsanto On Trial, Stockert 3T Device Causing Infections, Trump University Lawsuit Settled, SCOTUS To Rule On Rights Of Transgender Americans In 2017 MEMBER SPOTLIGHT 85 Ben Brafman TOP 40 UNDER 40 86 Joey M. McCall THE TRAVELING TRIAL LAWYER 87 Mark O’Mara — Ireland RAISING THE BAR 90 Eric Holland, W. Mark Lanier, Wayne Fisher, Richard J. Arsenault, Khaldoun Baghdadi, Michael Pasternak, Brian Hurst THE GOOD, THE BAD & THE UGLY 94 Judge Ann Aiken Judge Amos Mazzant Emotional Judges In Lousiana

features 38

42 45 48 52 66 70 76 80

Networking 101: What They Forgot To Teach You In Law School Are You Taking This Dangerous Antibiotic? Donald J. Trump: Grifter-In-Chief Litigation Is The Only Path To Enforce Equal Pay Legislation Where Are All The Women Lawyers? Diversity In The Legal Profession In California: 2015 Women Trial Lawyers: A Diversity Issue, Or Is A Woman Really The Best Person For The Job? Draining The Swamp Right Into The White House The “Greed Is Good” Experiment Has Failed We Have Been Given The Chance To Rebuild The Democratic Party — Don’t Waste This Opportunity

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DOWNTOBUSINESS

By Harlan Schillinger

WHAT YOU DON’T KNOW, YOU DON’T KNOW

Nine things you’re in the dark about marketing your law firm Some things you’re better off being in the dark about. Effective legal marketing strategy is not one of them. Ignorance is never bliss if your law practice cares about business relationships, reputation and rewards. Unfortunately lawyers — yes, you — are notorious for thinking: • I’m a great attorney and I make great money. • I just want to make more and grow my practice. • I’ve already got it all figured out.

10 x The Trial Lawyer

You may think you’re doing great, but guess what? You probably don’t even know what you’re missing. Here are nine things lawyers overlook. By doing these alone you will thrive.


1| Front desk That’s code for anyone or anything that answers the phone or handles intake at your legal office. These are your very crucial “Ambassadors of First Impressions” — the place where your paid advertising dollars come first, too. Never sell your front desk short. The only way to know how you measure up on intake is to secret shop your firm or record your calls. Yes, picking up the phone and dialing your intake people to get a firsthand sense of tone, process and follow-up procedures is the best way to assess the effectiveness of your intake. 2| Intake system Intake is a non-negotiable. However few law firms have the kind of formalized intake systems and software to adequately track, monitor and follow up on the leads they are generating. That’s a shame, given the cost you are most likely spending to obtain leads through tactics such as pay per click (PPC) campaigns or broadcast advertising. You must have a seamless intake system so that when a new-client call comes in it’s handled in the most productive manner. You must understand what every new call is about. You must take intake seriously, because this process ultimately determines the experience your prospective clients have — and whether or not they do business with you.

5| The 2% difference If you can increase your bottom line by 2% without spending more advertising dollars, you have put a substantial amount of money (net) in your pocket. So what specifically is the 2% difference between you and your competitor? How can you leverage your brand’s advantages or attributes to gain the edge? You must drill down to find out what makes you different, express it in your advertising and, most importantly, capitalize on it. 6| Reputation Sure, you may know from friends, referrals and big case wins that you’re pretty good at what you do. But at times we’re all blinded by money, greed, egos and other external vices. Reputation is not what you think of you, but what the public really thinks of you. Stop and ask yourself: Do you truly understand how people perceive your law firm? Do you know how the community at large identifies with the messages you are sending? Maybe it’s time to start thinking about whether you really have the right reputation — and how you can to shift marketing to get the one you want.

3| Metrics, measurability and ROI Just like bookkeeping or managing your bank account, metrics are a must if you want a return on investment. Most importantly, measuring helps you determine what is working and what is not. You cannot just guess. Law firms have to employ proper software to track each and every movement, from the first call to the close of the case. You should know the cost of everything associated with your advertising: • Cost of call lead (even a bad one) • Cost of case • Cost (and productivity) of each attorney or staff member who touches a call, case or turn-down 4| Competitive analysis Don’t get caught assuming you know what your competitors are doing because you think you saw their advertising spot. You have to dig deep, find out what they’re doing (and not doing) and study it. Think of competitive advertising analysis like preparing for a trial. Don’t do business with a marketing agency or consultant that doesn’t dissect your competitors. This knowledge will help you exploit others’ weak points, market differently, try an advertising avenue where your competitors are absent or outplay them in the existing market.

7| Reviews Just like people turn to the Internet (often on mobile devices) to check whether the food at a certain restaurant is good, they also look online to learn what other people have to say about your attorneys or what it’s like to work with your firm. That’s why strong digital reviews are critical. Google and all other search engines now rank entities based on what people say about them. Having a process in place to obtain honest, authentic reviews is a requirement to obtain any kind of organic results on the web.

The Trial Lawyer x 11


D You can also proactively market around reviews, using the positive things people are saying about your law firm right now — through referrals from past clients, online reviews, social media chatter — to fuel and shape public perception. 8| No shows Mrs. Jones didn’t come to the appointment you scheduled with her. If this is happening a lot, you have a problem. But do you have accountability and tracking in place to really understand your no-show rate? Do you know why that person never came by the office? A lot of lawyers use the excuse that if a lead was booked but the person never showed up for an appointment, it wasn’t a case the firm wanted anyway. But is that really true? You paid for that lead. That’s lost income and a lost case. If your intake staff

made the appointment and the client did not show, guess what? He or she went somewhere else — to your competitor. 9| Strategic plan When business is good, lawyers don’t seem to care much about marketing strategy. You’re getting leads; you’re booking clients; you’re winning cases. But inevitably something will stop working. There will come a dry spell; you’ll start getting the wrong kinds of clients; and cases won’t convert the way they used to. Remember, your practice is a business. And there isn’t a successful business in the world that doesn’t have a strategic plan. Think of it like a recipe in a kitchen. You can spice up your recipe with lots of extra ingredients, but if you don’t follow the basics, your dinner will taste bad, and you will have wasted time and money.

The same goes for your law firm’s strategic plan. A specific road map will not only contain the details you need to follow to find success, but it will also keep your firm disciplined and on track. Lawyers have to be proactive in their approach to modern marketing. Having strategic vision requires studying the competition (due diligence); looking at key performance indicators and the competition; drilling down on digital analytics; vetting your plan in writing; having the resources at hand to try something different when whatever was working isn’t working anymore; and always, always, executing under the auspice of intelligence. You, and only you, are responsible for the messages you put out there — and the cases you take in.

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DOWNTOBUSINESS

INTERNET MARKETING ENTERS THE BRANDING AGE By Bill Fukui For most law firms, Internet marketing has been primarily synonymous with search engine marketing (organically through search engine optimization/SEO or paid through pay-per-click/PPC advertising). The vast majority of firms typically only market on the Internet in a more passive manner competing for limited exposure during a small window of time when consumers conducted searches online. Unfortunately, only a handful of firms in any metropolitan marketplace are able to successfully leverage this opportunity consistently and the cost has increased exponentially. However, as consumers spend more time on the Internet and their online activities continue to expand, there is a growing opportunity for more progressive, marketing-focused firms to conduct effective brand marketing outreach through display advertising, video pre-roll ads, social media advertising, etc. No longer should building your firm’s brand be limited to expensive mass media advertising (television, radio, newspapers, billboards, etc.).

14 x The Trial Lawyer


In fact, Flurry Analytics reported that even at the end of 2015, consumers now spend more time on mobile apps than on television (198 min vs. 168 mins/day).

This also translates into marketers seizing the opportunity by investing more efficient marketing dollars into targeted online advertising. US media ad spending trends shows online digital advertising growing at a very robust pace. EMarketer. com recently reported that the trend in digital advertising spending indicates it will likely exceed television media spending by this same time next year.

Whether you are a major national brand or solo attorney, there are hundreds of case studies that demonstrate an expanding opportunity to conduct online outreach advertising and build a “branded audience” in a more targeted and costefficient manner than traditional television or other mass media advertising.

WHY ONLINE BRAND MARKETING WORKS FOR LAW FIRMS By focusing only on traditional SEO or PPC strategies that target just a handful of primary keyword phrases, you are limiting your growth and not leveraging the expanding Internet opportunity. Search trend research (Google Trends) shows that many of the keyword phrases we simply took for granted and assumed generated all the online business have declined in volume over the course of time. The following graph identifies search trends for “Los Angeles personal injury attorney” where search volume had decreased or flattened, is a common trend in most markets.

Simultaneously, we have seen an increase of website traffic come through more “branded” searches, such as the attorney’s name, the firm’s name, or some variation thereof. We all recognize that branded traffic that seeks you as a destination, as opposed to stumbling on your website, has a much higher conversion rate and generates better cases. The most important reason why your firm needs to develop a recognizable brand is that consumers are not regularly in need of legal services. In most cases, this is the first time they need legal assistance. Top-of-mind awareness and immediate recognition is even more important when consumers enter the legal arena that is completely new to them. It is compounded when you add stress, frustration and a lack of trust to their experience. In addition to building your brand, targeted branded outreach will 1) generate significant exposure for your firm, 2) drive more targeted visitors to your website and key pages (which can help your SEO results), 3) stimulate more immediate direct response leads than longer-term SEO strategies, and 4) develop a broader online community and audience through retargeting and remarketing.

The Trial Lawyer x 15


STRATEGIES TO BUILD YOUR BRANDING CAMPAIGN

TARGET YOUR AUDIENCE AND GENERATE BRANDED EXPOSURE

When most attorneys think of brand marketing, they assume that means building a market-wide identity and top-of-mind awareness, which can be cost prohibitive. However, the focused targeting capabilities of online marketing allows firms to develop their brand to more defined audiences long before they start conducting keyword searches on Google.

Once you identify your firm’s brand, you can develop the messaging and begin to target the audiences that best match it. This also helps you determine the channels that make the most sense to reach them. Some outreach strategies and channels you may want to consider:

Brand Identity — Before engaging in aggressive outreach, you must have a solid understanding of what makes up your law firm’s brand; what makes it unique; and why it makes a difference. This includes your imagery, colors, messaging, scope and execution of services. Your brand shouldn’t just be limited to a feeling; it needs to be thought through and documented. If you do not have a solid understanding of what makes up your law firm’s brand, then it will be difficult to identify more niche audiences, develop messaging, and create designs/ graphics, content and ads that consistently project a memorable and distinguishing identity. Exposure Throughout The Brand Marketing Process — Today’s Internet provides marketers with unparalleled opportunities to more accurately target consumers. In addition, the variety of channels also allows you to reach your branded audience throughout the different stages of the branding process. The key is to develop a synergy between all the online marketing channels you utilize so that the “whole is greater than the sum of its parts.”

Display Advertising — Display ad networks, such as the Google Ad Display Network, leverage millions of websites that reach over 80 percent of online US consumers. Targeted exposure criteria can include geography, demographics, search history (including competitor searches), website visitors, as well as behavioral and contextual activities. Social Media Advertising — In addition to display ad networks, social media platforms have tremendous user data to surgically target high quality audiences. And even though Facebook offers significantly lower costs than PPC advertising, Bank of America’s investment research estimates Facebook’s sales will rise 53% by the end of 2016. Social Media Management — It is important for your firm to continually engage and grow your online audience through social media. This not only means posting relevant, interesting and useful information, but engaging with your audience, sharing, liking, and commenting, as well as boosting highquality content. YouTube Video Pre-roll Advertising — Your brand campaign also needs to leverage video in today’s online environment. Video is not only essential for mobile and smartphone audiences; it can also communicate your brand and firm’s passion in a way that text alone cannot. Video pre-roll advertisements should take advantage of TrueView video ads — you only pay for video ad exposure that gets watched in its entirety. TIMELY EXPOSURE AND HIGH LEVEL SERVICE ARE STILL ESSENTIAL

If your law firm only engages in search marketing, your shrinking window of opportunity is limited to timely exposure (if you can get it), lead intake/follow up, and occasional client experience. In order for you to get the maximum return, you need to take advantage of opportunities throughout the brand marketing process.

16 x The Trial Lawyer

SEO/Pay-Per-Click Advertising — The staple of timely exposure when consumers do research is still an important part of an effective brand marketing campaign. This is one platform that requires experienced and dedicated assistance. Don’t try to do this on your own unless you really know what you are doing or you will waste your time and money. Reviews and Ratings Marketing — Developing a system to generate positive reviews and ratings, as well as effectively promoting them during this critical stage has become an


increasingly vital part of converting prospects into clients. Make sure to take advantage of available online platforms that will help you generate more positive reviews and minimize negative reviews. Retargeting — Maintaining ongoing exposure to your audience even after they leave your website is an important part of any online branding strategy. You should do this through Facebook or display advertising to ensure that you thoroughly build brand awareness.

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Inbound Marketing Automation — The use of downloadable eBooks, checklists, consumer guides and other resources will allow your firm to collect important online visitor data and launch timely, targeted, informational automated email campaigns that brand you as the authority and convert visitors into leads. Relationship Marketing/Create Advocacy — Maintaining relationships with your leads, prospects and clients is a critical aspect of online brand marketing, particularly because your are reaching your most audience. Ongoing newsletters, announcements and updates can help you promote cross-selling opportunities and stimulate more conversions and referrals. This should be at the core of every healthy and growing law firm. Bill Fukui has been in the legal advertising and marketing industry since 1995. He has consulted with attorney firms on all forms of media advertising. Since 2001, he has been the Director of Marketing for Page 1 Solutions, a comprehensive Internet marketing agency specializing in marketing law firms — offering comprehensive internet marketing services, including website design, SEO, PPC, social media, inbound marketing automation, reviews and ratings marketing, display advertising, and video marketing.

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FROMTHEEXPERTS

By Joseph DiNardo, Esq. & Kelly Anthony, Esq.

4 POWERFUL DECISIONS OF 2016 THAT CAN IMPACT YOUR MASS TORT PRACTICE As 2016 comes to a close, it is worthwhile to look back in the year that was. From jury verdicts totaling $172 million awarded in two talcum powder cases and $70 million in a Risperdal action to the bulk dismissal of claims in the New Jersey Accutane multicounty litigation and federal Mirena lawsuits — the past twelve months have reaffirmed that the mass tort arena remains largely unpredictable. Nevertheless, certain court decisions rendered over the year may provide litigators some guidance looking ahead. Below is a brief compilation of some of the most influential mass tort holdings of 2016.

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#4 — $1 Billion NFL Class Action Settlement Affirmed, But Still Contested The Third Circuit in April 2016 held that the estimated $1 billion settlement reached by National Football League (“NFL”) and more than 20,000 retired NFL players while “not perfect,” was fair. In In re: Nat’l Football League Players’ Concussion Injury Litigation players claimed that they sustained concussive and sub-concussive hits while playing for the NFL, which put them at risk for repetitive head trauma. The players argued that the NFL had a duty to warn them of the short and long-term risks associated with such trauma, including Alzheimer’s disease, dementia, depression, and a newly recognized disease called chronic traumatic encephalopathy (“CTE”), but instead, ignored, minimized, or “outright suppressed” information regarding causal relationship. The parties reached a settlement in principle on August 29, 2013. The settlement, later revised, provides an uncapped monetary fund to compensate retired players, a $75 million baseline assessment program that gives eligible retired players free examinations, and a $10 million education fund dedicated to instructing football players on injury prevention. Included in the settlement is a provision that releases all claims and actions by participating claimants against the NFL “arising out of, or relating to, head, brain and/or cognitive injury as well as any injuries arising out of, or relating to, concussions and/or subconcussive events,” such as CTE. The settlement received final approval by the District Court on April 22, 2015, but then was appealed by certain objectors. In affirming settlement approval, the Third Circuit relied upon the lower court’s thorough 123-page analysis to determine that the agreement was fair, reasonable and adequate. Notably, the Court of Appeals determined that the class was adequately represented despite challenges objectors raised. In cases like this, involving a divided class of individuals holding present and future interests, a conflict

of interest may arise. To overcome the conflict of interest within the class, “there must be structural protections to assure that differently situated plaintiffs negotiate for their own unique interests.” Here, the plaintiffs’ counsel used a subclass structure to protect the divergent interests of the retired players, which the Third Court stated, “alone [was] a significant structural protection for the class that weigh[ed] in favor of finding adequacy.” The Court also cited the uncapped and inflation-adjusted awards, the guarantee of a baseline assessment examination, and the presence of a mediator and special master as structural protections. Despite the Third Circuit’s holding, two groups of objectors filed petitions for writ of certiorari with the U.S. Supreme Court. Unfortunately, the settlement will not become effective unless and until all appeals are exhausted and resolved in favor of the settlement. #3 — The Lone Pine Order Surfaces in Product Liability MDLs The term “Lone Pine Order” has its origin in a 1989 New Jersey Superior Court toxic tort case, Lore v. Lone Pine Corp. In that action, involving 464 defendants, the court issued a case management order requiring the plaintiffs to provide basic information in support of their personal injury and property damage allegations, such as reports of treating physicians and real estate experts. Since that order, judges in large, complex environmental litigations have primarily utilized Lone Pine orders as a pre-discovery tool. However, in June that changed when U.S. District Court Judge Rebecca Pallmeyer issued a Lone Pine order in the mass tort context, in In re: Zimmer NexGen Knee Implant Liability Litigation. In what was characterized as a rare move, Judge Pallmeyer determined that such an order was necessary in the MDL to ensure that certain cases had merit to proceed to trial. Under the order, the plaintiffs were required to submit expert declarations to show each case met certain requirements, like implantation of the knee replacement product and

evidence of loosening of the device components. While many sources attribute Judge Pallmeyer’s aggressive case management decision to difficulties associated with selecting cases for bellwether trials, the order could end up being more — the beginning of a trend in mass tort litigations to manage dockets. #2 — Bankruptcy May Not Bar Tort Claims In July, the Second Circuit issued an opinion that allowed hundreds of personal injury and economic damage claims arising from faulty ignition switches to proceed against General Motors (“GM”), even though the claims arose prior to GM’s sale of its assets in bankruptcy. General Motors Corporation (“Old GM”) petitioned for Chapter 11 bankruptcy protection on June 1, 2009. Rather than preparing a traditional Chapter 11 reorganization plan, Old GM decided to sell its assets to a successor corporation. Under the Sale Agreement, which the bankruptcy court approved (the “Sale Order”), General Motors LLC (“New GM”) acquired all of Old GM’s assets “free and clear of all liens, claims, encumbrances, and other interest of any kind or nature whatsoever, including rights or claims based on any successor or transferee liability.” Thereafter, in early 2014, New GM issued its first recall related to the ignition switch defect. Within months, plaintiffs filed dozens of class action lawsuits alleging that the faulty ignition switch caused personal injuries and economic losses both before and after the Sale Order was issued. In front of the bankruptcy court, GM contended that any accident claims raised by plaintiffs that occurred prior to the Sale Order and economic loss claims based on the ignition switch defect were barred. The bankruptcy court agreed and the plaintiffs appealed to the Second Circuit. The Second Circuit reversed the bankruptcy court’s determination, holding that while the “free and clear” provision of the Sale Agreement covered The Trial Lawyer x 19


any personal injury that occurred prior to the Sale Order and any economic claims arising from the ignition switch defect, the plaintiffs could not be bound by the terms of the Sale Agreement. In reaching its conclusion, the Court reasoned that procedural due process required that GM provide direct mail notice of the bankruptcy proceedings to plaintiffs with ignition switch claims. The Court determined that Old GM knew or should have known that the defect caused stalls and was linked to airbag non-deployments by May 2009, and thus, the claimants were entitled to notice beyond mere publication. The Court further held that absent such notice, the plaintiffs were prejudiced since it was not certain that the outcome of the § 363 sale proceeding would have been the same had Old GM disclosed the ignition switch defect and had plaintiffs been given an opportunity to object to the “free and clear” provision. Thus, the Court concluded the Sale Order could not be enforced so as to enjoin those plaintiffs’ claims. #1 — California Embraces Mass Actions In late August, the California Supreme Court issued a precedential decision in Bristol-Myers Squibb Co. v. Superior Court, holding that California courts could properly exercise specific jurisdiction over a defendant for the purposes of adjudicating nonresident plaintiffs’ claims. In the mass tort litigation, 86 California residents and 592 residents of 33 other states sued Bristol-Meyers Squibb Co. (“BMS”) for injuries allegedly arising out of the use of Plavix, a prescription drug used to prevent blood clotting. BMS, which was not incorporated or headquartered in California, argued that the court lacked general and personal jurisdiction over the claims of the 592 nonresident plaintiffs because their allegations did not include any factual claims that their injuries occurred in California or that they had received treatment for their injuries in California. While the California Supreme Court concluded that BMS was not subject to the general jurisdiction of California courts, it held that it was subject to specific jurisdiction over nonresident plaintiffs’ claims. The Court found that it was reasonable to join claims of California and nonresident plaintiffs because they arose from the same course of conduct, and because BMS had extensive contacts with California, which included “extensive marketing and distribution of Plavix, hundreds of millions of dollars of revenue from Plavix sales, a relationship with a California distributor, substantial research and development facilities, and hundreds of California employees.” Unless the U.S. Supreme Court overturns this decision, non-California residents who file claims in mass tort actions filed in California state courts will not have their claims excluded. Citations available on request 20 x The Trial Lawyer


The Trial Lawyer x 21


FROMTHEEXPERTS

By Douglas W. Bowerman, MD, FACP, SFHM, FAIHQ, FABQAURP, CHCQM

“Who’s in charge?”

Determining Hospitalist And Specialist Responsibility To The Co-Managed Patient Physicians known as “Hospitalists” have emerged in recent years due to various economic, political, medical, and social forces on inpatient care, and now are the fastest growing medical specialty. Over the last 20 years, while the number of hospitalized patients and number of specialists available to care for them has remained stable, the number of hospitalists has increased 22 x The Trial Lawyer

from less than 1,000 to nearly 50,000. Consequently, most hospitalized patients are now co-managed by both hospitalists and specialists. When you consider a malpractice case involving a hospitalized patient, you will face the task of determining what responsibility each physician held in your client’s medical care. To clarify, the term “hospitalist”

refers in general to a physician typically trained in internal medicine who exclusively cares for inpatients. A “specialist” denotes any physician that is not a hospitalist, such as a cardiologist, pulmonologist, general surgeon, or orthopedic surgeon. A “service” refers to any group of specialists within the same specialty, such as the cardiology service; or a group of hospitalists. A “consultant”


is a physician belonging to a service who is not the attending of record, and can be either a specialist or a hospitalist. The goal for this article is to discuss the specific details of cases I use to determine the responsibility each of the involved physicians held to a patient. This information will help you to make this determination yourself, or help you to better understand the advice given to you by your own experts regarding this issue. Having authored hospital bylaws regarding patient comanagement, and as the only physician in the United States board certified in Internal Medicine with a Focus in Hospital Medicine as well as Quality Assurance, while holding the position of Fellow with the American College of Physicians, the Society of Hospital Medline, the American Institute of Healthcare Quality, and the American Board of Quality Assurance and Utilization Review, I believe I am in a position to provide these opinions.

arrhythmia typically managed by either hospitalists or cardiologists), admitted by a hospitalist and a cardiologist is consulted to co-manage these two patients. This particular cardiologist has never seen one of these two patients before, whereas the other patient is well known to this cardiologist from prior office visits. With this latter patient, the hospitalist will appropriately “take a back seat” to this cardiologist in terms of management decisions, given the preexisting relationship between that patient and specialist. If that patient suffers a bad outcome for whatever reason, the specialist would bear most, if not all of the responsibility compared to the hospitalist. With a bad outcome in the former patient however, the hospitalist and specialist may ultimately bear more similar responsibility, since each was equally capable of managing the atrial fibrillation, and likely would have been more equally contributing to the patient’s care.

WHAT ASPECTS OF THE CASE IMPACT THE DETERMINATION OF RESPONSIBILITY?

3. Is there an order or progress note in the chart designating which physician is managing each aspect of the patient’s care?

1. Who was the “attending physician” of record? Although once the sole factor for determining duty to the patient, “attending of record” is now an almost meaningless title. This is due to the fact that many hospitals mandate all patients be admitted to the hospitalist service as the attending of record with the specialists serving as consultants, while other hospitals utilize written or verbal agreements between the hospitalists and specialists to determine which service will serve as the attending of record on a case-by-case basis. These policies exist regardless of the anticipated level of involvement (and subsequently level of responsibility) of the hospitalist and specialists in that patient’s care. 2. Was there a prior doctor-patient relationship before the admission? Consider two patients, both with rapid atrial fibrillation (a common heart

It is unexpected to find an order or a note in the chart specifying which aspects of care will be managed by each physician. If such notation is present though, it is difficult for a physician to later deny duty for aspects of care specifically identified in writing in the chart. 4. Which physicians were available to the patient for a bedside evaluation versus a telephone or telemedicine consultation? The continual ability for the bedside presence of the hospitalist can translate into a greater duty to the patient compared to a specialist who may only be available for bedside evaluations during certain limited hours, or only by telephone. If an adverse event is believed to have resulted from a physician’s lack of physical presence for the patient, the amount of responsibility held by

that specialist will be influenced by the patient’s specific issue, by the time of day when the problem arose, and by what information was communicated (and documented to have been communicated) between the hospitalist and specialist about the problem. The specialist’s absenteeism does not eliminate his or her duty, but it may increase the responsibility of the hospitalist since he or she now must be certain to provide the specialist with all the information needed to remotely manage the patient’s problem at hand, since the hospitalist is functioning as the specialist’s eyes and ears on the patient. The hospitalist needs to be certain to “see” and “hear” with the same acuity as the specialist, or at least have the ability to know the circumstances in which he or she can’t adequately fulfill that role, and communicate that concern to the specialist. Did the hospitalist communicate all the pertinent facts? Did the hospitalist portray an appropriate level of concern or urgency of the patient’s situation to the specialist? Did the physicians follow the advice given to each other during the conversation regarding subsequent care of the patient? Did either physician coerce the other into exceeding his or her level of expertise, which then resulted in the bad outcome? The answers to these will influence in the assignment of responsibility. 5. Which physician did the nurses contact to address the patient’s problem? Another indicator of physician responsibility to a patient is noting which physician the nurses call first to deal with a problem. Consider a patient with a bowel obstruction co-managed by a hospitalist and a general surgeon. After admission, the patient develops increasing abdominal distention with more pain and vomiting. If the nurses first call the hospitalist, prompting an evaluation of that patient by the hospitalist, this is strong evidence that the hospitalist is managing the patient’s bowel obstruction. If this patient then The Trial Lawyer x 23


develops a bowel perforation and dies, the majority of the responsibility would fall on the hospitalist. If the situation was reversed, the surgeon would bear the majority of the responsibility. There is another important question that must be answered first to ensure an accurate assessment of this situation before assigning responsibility: “is the service that the nurses chose to call first consistent, regardless of the time of day and day of the week?” During nighttime hours, specialists are more apt to be at home asleep while hospitalists remain awake in the hospital. To avoid disturbing the specialist, a nurse may choose to summon a hospitalist to 24 x The Trial Lawyer

handle an acute issue, even if it is more appropriate for (and previously managed by) the specialist. The hospitalist receiving the request may not want to appear to the nurse as being lazy or unwilling to help, and thus addresses the patient’s problem as requested. The nurse and physician will likely document in the chart what transpired that night. This unintentionally establishes a precedent that the hospitalist service is managing that patient’s problem, despite the prior intent that the specialist would be handling that particular issue. This can cause an unintended shift in the level of responsibility during the course of a patient’s hospitalization.

6. Who had the ability to make the diagnosis? Certain diagnoses are made by specialists after performing diagnostic procedures; for example, a gastric ulcer diagnosed by a gastroenterologist after performing an upper endoscopy. If a bad outcome results from the failure to diagnose an ulcer during the endoscopy, or due to a decision by the specialist not to perform an endoscopy despite the patient’s symptoms being consistent with a gastric ulcer, more duty would fall to the gastroenterologist since hospitalists do not perform endoscopies, and are dependent upon gastroenterologists for


the diagnostic aspect of that patient’s care. On the other hand, some diagnoses can be made by either the specialist or hospitalist, such as a myocardial infarction, which is made simply by noting an elevated troponin level in a routine blood test. If this diagnosis was missed, resulting in harm to the patient, neither the hospitalist nor the specialist would be able to claim their lack of training or experience in the field of cardiology as a defense for missing this diagnosis, and both would bear responsibility. 7. Who had the ability to interpret the critical test results? Some tests require the input of the specialist if the hospitalist lacks the training or experience to independently determine the correct course of action that should follow an abnormal test result. For example, the report on an MRI of spinal stenosis with spinal cord impingement is recognized as abnormal by any physician. However, this abnormal result is but one of several factors taken into consideration when determining the appropriate treatment for a patient with back pain. If a neurosurgeon determines that surgery is not appropriate, but the patient then progresses to paralysis due to a delay in surgical intervention for that spinal cord impingement, the hospitalist would bear a minimum of the responsibility for this decision, since the hospitalist is dependent upon the specialist to make treatment decisions. On the other hand, some test results call for treatment available to both hospitalists and specialists. For example, both should know that a CT scan of the lungs showing a large pulmonary embolism typically requires administration of blood thinners. Failure to immediately act upon that test result would be a deviation from the standard of care for both physicians, regardless of their role in the patient’s care.

8. Who could provide treatment once the diagnosis was made? An echocardiogram showing acute cardiac tamponade (a large collection of fluid around the heart that impairs normal heart function) needs urgent surgical drainage. This treatment is provided by cardiologists, not hospitalists. If a bad outcome results from a delay in the drainage of that fluid, the specialist would be at the front of the line for holding responsibility. Some diagnoses simply require treatment with medications which can be ordered by both hospitalist and the specialist alike. Either a hospitalist or a pulmonologist is capable of writing orders for antibiotics and oxygen for a patient diagnosed with pneumonia, and therefore both have responsibility if antibiotics were neglectfully not provided to the patient. 9. Who was writing orders and notes in the chart? If one of the two services co-managing a patient consistently documented in the chart about the patient’s physical examination findings and test results and offered an opinion regarding their assessment and plan, this would demonstrate a conscientious interest in the patient’s problem and carry with it a level of responsibility. In contrast, if the other service did not make any notes pertinent to the patient’s problem in the chart, this would give the perception that he or she was not involved with that particular issue, and did not hold themselves out as being involved or having responsibility to the patient. 10. Who discharged the patient? If a bad outcome occurs shortly after discharge, the doctor who performed the discharge (writing the discharge instructions, creating the discharge summary, and providing the discharge order) carries a higher level of responsibility regarding that patient’s

bad outcome. That physician had the last opportunity to notice any potential instability of the patient, to perform an examination, to order additional tests, to involve another consultant, to postpone discharge, or to arrange for more vigilant outpatient follow up. The discharging physician (usually the hospitalist) does not automatically get saddled with all of the responsibility however, because the discharge often occurs only after a specialist’s approval for discharge, and specialists often have prescribed the specific instructions and follow up plan for the hospitalist to give to the patient at the time of discharge. CONCLUSION Applying these ten questions to any one potential malpractice case will likely yield some answers that single out the specialist as bearing most of all of the responsibility, while the answers to the other answers may point the finger at the hospitalist. To complicate matters further, the answers to these questions for a particular case are not equally weighted in terms of importance. The specific medical issue in the case, the particular setting of the case, and numerous other factors influence how the answers to these questions ultimately shape the final conclusion regarding the assignment of responsibility. The answer to the question “Who is in charge?” will remain an ongoing challenge for attorneys and experts alike. With the above discussion in mind, you will be able to more thoroughly investigate the medical record yourself in the search for your answer, and have a more informed discussion of the case with your experts. Douglas Bowerman has reviewed 500 potential medical malpractice cases, with the provision of a dozen depositions and court testimony in several states. The majority of his work is with plaintiff attorneys, but also works with defense counsel. Douglas is a member of the American College of Legal Medicine.

The Trial Lawyer x 25


PRODUCTWATCH

DEFECTIVE PRODUCT CLASS ACTIONS: CALIFORNIA VERSUS FLORIDA By William C. Ourand, Esq. • Newsome Melton, P.A. California has long been a common battleground for class action disputes. And there are many good reasons for this; most notably, California has a robust body of consumer protection law that lends itself well to class action litigation. In recent years, however, Florida has emerged as an ever-growing presence in the class

26 x The Trial Lawyer

action world, particularly with respect to automotive defect class actions. This trend, in turn, has given rise to a burgeoning body of Florida consumer protection law that has unique advantages and disadvantages when compared with California law. This article will begin by discussing recent class action cases

pursued in Florida, will then move into a comparative analysis of the consumer protection laws governing class action suits filed in California and Florida, and will conclude by offering suggestions as to how to proceed when presented with the option of pursuing a class action involving consumers from each state.


Recent Florida Class Actions Because each state has its own unique set of consumer protection laws and judicial precedent, is typically impossible to certify a national consumer fraud class in a product defect case. Accordingly, consumer advocates must pick and choose their battles wisely, as smaller states may not have a sufficient number of aggrieved consumers to help level the playing field through the class action mechanism. With a growing population of just under 20,000,000 people, Florida is one of the most populous states in the nation. It is unsurprising, then, that Florida courts, particularly the U.S. District Court for the Southern District of Florida, have become an increasingly common battleground for class action litigation. Recent examples of major automotive consumer fraud class action cases filed in Florida include: • Batista v. Nissan North America, Inc., which involves an alleged defect that causes the continuously variable transmissions (“CVTs”) in certain Nissan Pathfinders and Infiniti QX60s to violently shake, impairing those vehicles’ ability to accelerate. The case was filed in the Miami Division of the Southern District of Florida in December 2014 by our firm in partnership with two other firms. The Court recently entered preliminary approval for a nationwide settlement class of all current and former owners and lessees of 2013–2014 Nissan Pathfinders and 2014 Infiniti QX 60s. Batista v. Nissan North America, Inc., Case No.: 1:14-cv-24728, D.E. 151 (S.D. Fla. 2016). • Sanchez-Knutson v. Ford Motor Co., which involves an alleged defect that causes carbon monoxide to seep into the occupant cabin of certain Ford Explorers. In October 2015, Judge Dimitreleous of the Southern District’s Fort Lauderdale Division certified a class of all consumers who purchased

or leased 2011–2015 Ford Explorers in Florida. In doing so, the Court accepted, “for purposes of class certification,” the plaintiff’s proposed “conjoint” damages model, which is “an analytic survey method used to measure customer preferences for specific features of products.” Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 539 (S.D. Fla. 2015). The case was set to begin trial in early August 2016, but the parties reached a settlement agreement, which has been presented to the Court for approval. The proposed settlement would cover everyone who purchased or leased a 2011–2015 Ford Explorer in the United States. Sanchez-Knutson v. Ford Motor Co., 0:14-cv-6134, D.E. 416 (S.D. Fla. 2016). • Carriuolo v. General Motors Co., which involves an alleged misrepresentation as to the safety ratings for the 2014 Cadillac CTS. The Eleventh Circuit Court of Appeals recently affirmed the certification of a class of Florida consumers who purchased the vehicles, joining ranks with a growing number of circuits that have allowed for so-called “price premium” or “overcharge” classes even after the latest wave of SCOTUS decisions narrowly construing Rule 23. See Carriuolo v. GM Co., 823 F.3d 977 (11th Cir. 2016). This case is currently set for trial in early 2017. Carriuolo v. GM Co., Case No.: 0:14-cv-61429, D.E. 99 (S.D. Fla. 2016). Additionally, Judge Moreno of the Southern District of Florida is currently presiding over the massive Takata airbag multi-district litigation (“MDL”). The consolidation of the MDL in Florida’s Southern District serves as a powerful testament to the Southern District’s ability to oversee complex litigation. Additionally, given the egregious nature of the exploding airbag inflator defect, it appears likely that the MDL litigation will generate favorable Florida consumer protection precedent.

The UCL And CLRA Versus FDUTPA The primary statutes driving consumer fraud claims in California are the Unfair Competition Law (“UCL”) and the Consumer Legal Remedies Act (“CLRA”). Florida’s corollary law is the Unfair and Deceptive Trade Practices Act (“FDUTPA”). Although there is a far greater body of law construing the UCL and CLRA, recent FDUTPA decisions have staked out the boundaries of what constitutes a cognizable and classable FDUTPA claim. This portion of the article will summarize several key distinctions between these two bodies of law. FDUTPA Is Not Limited To Safety Defects Most consumer fraud claims involving defective products revolve around an omissions theory—specifically, that the manufacturer failed to disclose a defect, and as a result, the consumer did not get what was paid for. For such a claim to be actionable under the UCL and CLRA, the plaintiff must show that the defendant was under a duty to disclose, which typically requires showing that the defect was “material.” The materiality inquiry, in turn, generally revolves around whether the defect poses a safety hazard. See Myers v. BMW of N. Am., LLC, 2016 U.S. Dist. LEXIS 140768 (N.D. Cal. Oct. 11, 2016); Lassen v. Nissan N. Am., Inc., 2016 U.S. Dist. LEXIS 139512 (C.D. Cal. Sep. 30, 2016). In contrast, courts applying FDUTPA have specifically rejected a “safety hazard” requirement in omissions cases. See Matthews v. Am. Honda Motor Co., 2012 U.S. Dist. LEXIS 90802 (S.D. Fla. June 6, 2012) (rejecting the defendant’s argument that the plaintiff’s FDUTPA claim should be dismissed because the defect at issue did not pose a safety hazard, and explaining that the “argument derives from case law interpreting California’s consumer The Trial Lawyer x 27


Dist. LEXIS 33387, at *18 (C.D. Cal. Feb. 19, 2013) (granting the defendant’s motion to dismiss, and reasoning that the plaintiff’s references to online complaints and “speculative” allegations about the defendant’s pre-sale testing and internal data were insufficient to establish pre-sale awareness of the defect). Conversely, “FDUTPA does not require [the defendant] to have subjective knowledge of alleged defects in order for [the plaintiff] to state a viable FDUTPA claim.” Gavron v. Weather Shield Mfg., 819 F. Supp. 2d 1297, 1302 (S.D. Fla. 2011). This is because Florida precedent makes it clear that, for purposes of FDUTPA, “a deceptive act occurs when there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” Id. (citations and quotations omitted). And as such, FDTUPA “focuses on whether an act is deceptive, not whether a defendant knew that the allegedly violative conduct was occurring.” Id. fraud statute . . . and FDUTPA is not so limited”). Instead, the plaintiff in a FDUTPA case must simply show that the defect diminishes the product’s value such that the failure to disclose the defect would be likely to mislead a consumer acting reasonably at the time of purchase. Id. As a practical matter, this distinction means that cosmetic defects—like paint discoloration and delamination—can form the basis for a valid FDUTPA claim, even if they could not meet the safety hazard analysis that often drives UCL and CLRA cases. Id. FDUTPA Does Not Require Pre-Sale Awareness or Knowledge of the Defect To “properly allege an actionable omission” under the UCL and CLRA, the plaintiff must allege “that the defendant knew of the defect at the 28 x The Trial Lawyer

time a sale was made.” Myers v. BMW of N. Am., LLC, 2016 U.S. Dist. LEXIS 140768, at *9 (N.D. Cal. Oct. 11, 2016). To meet the pre-sale knowledge requirement, plaintiffs often rely upon a combination of consumer complaints posted online, data from the National Highway Traffic Safety Administration (“NHTSA”), and technical service bulletins addressing the issue. See Butler v. Porsche Cars N. Am., Inc., 2016 U.S. Dist. LEXIS 114239 (N.D. Cal. Aug. 25, 2016). Of course, manufacturers do not always issue timely bulletins, and defects are not always well documented in NHTSA databases. Unfortunately, it can be difficult for the plaintiff— without access to discovery—to find other evidence to substantiate the defendant’s awareness of the defect. See Grodzitsky v. Am. Honda Motor Co., No. 2:12-cv-1142-SVW-PLA, 2013 U.S.

The CLRA Has A Discovery Rule; FDUTPA Does Not The UCL has a four year statute of limitations, and the CLRA has a three year statute of limitations. Cal. Bus. & Prof. Code § 17208; Cal. Civ. Code § 1783. California courts have extended the common law discovery rule to both UCL and CLRA claims. See Philips v. Ford Motor Co., 2015 U.S. Dist. LEXIS 88937 (N.D. Cal. July 7, 2015). Under California’s common law discovery rule, a “claim accrues and the limitations period beings to run when a plaintiff has information of circumstances to put him on inquiry or if he has the opportunity to obtain knowledge from sources open to his supervision.” Id. (emphasis in original). FDUTPA has a four year statute of limitations. Fla. Stat. § 95.11(3)(f ). And unlike UCL and CLRA claims, “[a]


FDUTPA claim accrues at the time of purchase or lease of a product, not upon discovery of an alleged defect.” SpeierRoche v. Volkswagen Grp. of Am., Inc., 2014 U.S. Dist. LEXIS 59991 (S.D. Fla. 2014) (“It is well-settled there is no ‘delayed discovery rule’ applicable to FDUTPA claims.”). However, a plaintiff may still be entitled to toll the statute of limitations if he or she can plead and prove fraudulent concealment. See Licul v. Volkswagen Group of Am., Inc., 2013 U.S. Dist. LEXIS 171627, at *7 (S.D. Fla. 2013). California Has a Catalyst Fee Statute; Florida Does Not California law provides that “a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest… .” Cal. Code Civ. Proc. § 1021.5. This statute is a codification of the socalled “catalyst fee” theory, which is an “exception to the general rule that each party to a lawsuit bears its own attorney’s fees.” Macdonald v. Ford Motor Co., 142 F. Supp. 3d 884, 890 (N.D. Cal. 2015). This statute allows the plaintiff to recover attorney’s fees if it is shown that the defendant issued a recall or undertook some other action in response to a UCL or CLRA class action. Id. Moreover, the statute applies to actions filed in both federal and state courts. Id. Florida does not have a similar catalyst fee statute. Instead, FDUTPA simply contains a “prevailing party” attorney’s fee provision. Fla. Stat. § 501.2105(3). The courts have so far not expressly resolved the issue of whether a defendant must pay for the plaintiff’s attorney’s fees in a case where the defendant issues a recall to address a defect that is also the subject of pending FDUTPA class action litigation. In such circumstances, the defendant may argue that it should not be required

to pay attorney’s fees on the grounds that the plaintiffs did not secure a final order on the merits. This argument would likely be premised on Supreme Court and other federal precedent construing prevailing party attorney’s fees provisions in various federal statutes. See Orlando Communs. LLC v. Cellco P’ship, 2015 U.S. Dist. LEXIS 103214 (M.D. Fla. July 22, 2015) (discussing Supreme Court precedent on whether and when a court may award “prevailing party” attorney’s fees). Given the difference in the nature and scope of the federal statutes addressed in that precedent, we believe that such arguments are incorrect, and would vehemently argue that fees should be awarded to ensure that the state law policy objectives underlying FDUTPA are achieved. However, this argument is more difficult to make than it would be in California due to the lack of a specific catalyst fee statute. It Is Harder For The Defendant To Obtain Attorney’s Fees Under California Law The UCL lacks any fee-shifting provision, and as such, a prevailing defendant must typically look to the CLRA if it wishes to seek attorney’s fees from the plaintiff. The CLRA, in turn, only permits the court to award “[r]easonable attorney’s fees … to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.” Cal. Civ. Code § 1780(e). “Courts have uniformly constructed this language as requiring a subjective test.” Corbett v. Hayward Dodge, Inc., 119 Cal. App. 4th 915, 924 (2004). As explained by the courts, “good faith, or its absence, involves a factual inquiry into the plaintiff’s subjective state of mind.” Id. (emphasis in original). Accordingly, the defendant has the burden of establishing that the plaintiff acted in subjective bad faith in filing the lawsuit. Id. FDUTPA, on the other hand,

simply states that “[t]he trial judge may award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.” Fla. Stat. § 501.2105(3). Under this provision, “[o]nce a trial court has determined that a party is a prevailing party under FDUTPA, it then has discretion to award attorney’s fees and costs after considering various equitable factors… .” Chow v. Chak Yam Chau, 640 F. App’x 834, 838 (11th Cir. 2015). Those factors include, but are not limited to, a consideration of whether the claim was filed in bad faith, or alternatively, whether the claim was frivolous even in the absence of subjective bad faith. Id. Conclusion While California has been the traditional forum for class action disputes, emerging precedent from Florida and the Eleventh Circuit has shown that FDUTPA can be a very powerful tool for consumer advocates. As set forth above, courts applying FDUTPA have embraced the conjoint damages analysis, and have certified cases involving “overcharge” theories. Additionally, a comparison of California and Florida law reveals that FDUTPA may be the better choice in cases where the defect does not have a clear safety implication, or where there is a lack of public documentation to establish the defendant’s pre-sale knowledge of the defect. On the other hand, the UCL and CLRA may be better tools to employ in cases involving older products, where there is a chance that the defendant may issue a recall during the pendency of litigation, or where there is a higher likelihood that the defendant may prevail and request attorney’s fees from your client.

The Trial Lawyer x 29


PRODUCTWATCH

CPSC RECOMMENDS EXEMPTION FROM CONFIDENTIALITY AGREEMENTS TO PERMIT DISCLOSURE OF PRODUCT DEFECTS By Robert J. Stoney Manufacturers that are forced to settle claims brought by those injured or killed by their defective products have a strong incentive to keep these settlements secret. They will typically demand that the injured plaintiff or her lawyers execute a “Confidentiality Agreement” as a condition of settlement. These agreements forbid disclosure of the settlement and prevent consumers from learning about potentially deadly 30 x The Trial Lawyer

defects in the products. Product safety lawyers have long known that onerous confidentiality agreements are a serious impediment to consumer safety. The Consumer Product Safety Commission (CPSC) recognizes that these agreements can violate principles of public safety and recently recommended “Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation,” which was published in the Federal

Register on December 2, 2016. The CPSC is a “public-health authority with a broad mandate to protect the public against unreasonable risks of injury associated with consumer products.” See 15 U.S.C. 2051 (2014); see also Public Health Authority Notification, 79 FR 11769 (March 3, 2014). The CPSC acts as a clearinghouse to identify and catalog unreasonable hazards in consumer products and to force manufacturers to remove such


defective products from the stream of commerce. The CPSC has been instrumental in identifying and removing such defective products as flammable children’s pajamas, hazardous baby cribs, strangling pull cords, unstable furniture and appliances, choking magnets, and thousands of other deadly and defective products. Although manufacturers are required by law to report incidents involving their products, they often fail to do so. As the CPSC notes, “If Industry Stakeholders fail to report, CPSC has limited alternative means of obtaining this critical safety information. It is therefore possible that a product hazard will never come to CPSC’s attention. Information in private litigation could, thus, be a key resource for the CPSC when Industry Stakeholders have not satisfied their reporting obligations.” Confidentiality agreements, however, prevent even the CPSC from learning about critical product defects discovered in civil litigation. This is not a hypothetical concern. In 2008, the United States Senate Committee on the Judiciary found that safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle design defects was kept from the CPSC by protective orders in private litigation. S. REP. NO. 110–439, at 6–8 (2008). The CPSC’s own “cursory review” of product liability cases found protective orders constraining publication of defects in many consumer products, including infrared liquid propane wall-mounted heaters, wheelbarrows, markers, multimeter devices, office chairs, and gas cans (Fed. Reg. Vol. 81, No. 232/Friday, December 2, 2016 / Notices 87024, n.3). To break this barrier to information to the public, the CPSC recommends that an exclusion be included in all settlement agreements, allowing disclosure of evidence of defective products to be shared with the commission: “The Commission believes the best way to protect public health and safety is to preemptively exclude or exempt the reporting of relevant consumer product safety information to the CPSC (and other government public health and safety agencies) from all confidentiality provisions.” This recommendation can easily be followed by inserting a simple sentence into all agreements such as ‘‘Nothing herein shall be construed to prohibit any party from disclosing relevant safety information to a regulatory agency or government entity that has an interest in the subject matter of the underlying suit.’’ This language can have an enormous impact on consumer safety. All product safety lawyers should heed this recommendation and refuse to execute a confidentiality agreement that does not include this exception, and should educate the courts on its importance to the public safety. Robert J. Stoney is a principal with Blankingship & Keith, PC in Fairfax, Virginia. His practice focuses on major automobile, commercial truck, and bus crashes; products liability; wrongful death; and traumatic brain injury cases. He can be reached at rstoney@bklawva.com. The Trial Lawyer x 31


JUDGETHEBOOK

LAW AND DISORDER A Legal Thriller

By Mike Papantonio Published by Select Books • 338 pages Reviewed by Andrew Findley Who is Nick Deketomis? He’s the protagonist of Mike Papantonio’s new legal drama Law and Disorder. But you won’t learn much about him in the first few chapters of the book. You will learn 32 x The Trial Lawyer

he’s a trial lawyer with the firm Bergman Deketomis who has “years of experience handling mass tort lawsuits.” But there’s very little insight early on into what makes him tick or even what he looks like if you’re trying to picture him in your mind’s

eye. The book’s slipcover describes Nick as “brash, brilliant, (and) handsome.” You’ll also learn that he worked hard to achieve success after rising from roughshod roots in the foster care system. Deke has a wonderful wife and two children, one


of whom is an attorney, and they live in a seaside community in northwest Florida called Spanish Trace that sounds a lot like Pensacola. Then something clicked. Mike Papantonio is Nick Deketomis. The clues are all there: after all, both of them created and preside over Mass Torts Made Perfect. Both of them work cases with Howard Nations. Both have radio shows from a progressive point of view, and both are friends with Robert F. Kennedy, Jr. Once you realize Deketomis is a reflection of Papantonio, it’s easier not only to envision what he looks like, but also to care about him and root for him as he wages war against greedy drug companies, powerful oil tycoons, Republican-appointed judges and religious zealots. And you’ll learn more about “Deke” as you dig deeper into the novel. Law and Disorder is not only a complex, multi-threaded legal thriller, it’s also usefully insightful into what it takes to mount a mass tort. It begins with Nick Deketomis awaiting the ruling of a Republican-appointed judge in a Florida panhandle courtroom. The ruling is important to Deke’s case against a pharmaceutical company which makes a birth control pill called Ranidol that its manufacturer also markets for off-label use such as birth control and treating acne. The pill also has severe side effects, such as causing heart disease and strokes. Unfortunately, the judge doesn’t rule in Deke’s favor, and his fragile client dies in the courtroom after hearing the ruling. Afterward, Deke, his partner and his daughter, who is interning with the firm, grieve the loss of their client and begin the process of selecting another plaintiff to lead the mass tort against Bekmeyer, the company that produces the dangerous pill. Papantonio next takes aim at the religious right. Pastor Rodney Morgan has to deal with the potential scandal of one of his flock, Ken Thorn, described as a “predatory pedophile” who’s being blackmailed with photos from a girl “of no more than 14 or 15” that he’d had an affair with. Deke and his partner Angus fly to New Jersey to Transcorp Shredding,

where they are mysteriously taken Deke suspects Thorn is about to pull a to get some valuable (and expensive) weapon when he lunges at him, Deke documents about Ranidol that Bekmeyer defensively plunges a ballpoint pen into Pharmaceuticals wanted destroyed. Thorn’s carotid artery, killing him. After Meanwhile, Ken Thorn stages a suicide Dixon charges Deke with manslaughter, to atone for his sins, and begs his wife we learn Deke has a juvenile record from for forgiveness, not knowing he’s heading his tough times living on the streets down an even darker path as he seeks between foster families. “The righteous salvation from Pastor Rodney. The indignation he displayed in court wasn’t pastor later recruits the aid of prosecutor some act, but a memory of youthful Darl Dixon, another of Deke’s foes, in wrongs he wanted to redress.” As a result spinning a way of dealing with Thorn of Deke’s arrest, a media firestorm erupts while also ridding themselves of Deke. over the weekend during the Ranidol While the legal aspects of the trial, and Deke is urged to let another novel may be well-known to mass lawyer finish the case. tort attorneys, they are illustrative and How does Deke deal with all of intriguing to those of us who aren’t this? You’ll have to read the book to find experts in the field. For example, Deke out, but Papantonio satisfyingly weaves masterfully conducts a deposition of together the seemingly unrelated plots one of Bekmeyer’s sales people, who while taking deadly aim on his familiar Deke presents with those expensive foes. It’s a wild ride, and one that leaves unshredded company documents that you hoping we’ll be hearing more from Deke wants to have introduced at trial. the author and his alter ego. Later, the Bekmeyer case becomes personal to Deke and he vows to take down the company. Deke then turns his focus toward a Texas case where a farmer and his wife have been poisoned by an old oil refinery belonging to S.I. Oil, a company owned by the Ranked #1 for Pharmaceutical Mass Torts - Plaintiffs - The Legal 500 Swanson brothers, $1 Billion+ in recoveries Kurt and Anton, who also use their $100 Million+ paid in co-counsel fees considerable power to control rightTo co-counsel or refer a case, contact wing politicians. An Kerry N. Jardine investigation reveals Managing Shareholder the area is a “cancer kjardine@burgsimpson.com cluster” comparable to Love Canal. 303.792.5595 Back in Spanish Trace, Dixon tells Thorn to pick a fight with Deke at Deke’s favorite steakhouse. The first attempt fails, but Thorn finally confronts and 40 Inverness Drive East | Englewood, CO | 80112 provokes Deke after Denver | Cincinati | Phoenix | Cody | Steamboat Springs a fundraiser. After

Low T and Mass Tort Cases

BURGSIMPSON

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LEGALBRIEFS

By Ring of Fire & Drug Safety News

Therapeutic Good Association (Australia’s counterpart of the FDA). Since then, Stryker has issued a voluntary warning, and Health Canada has issued a recall.

Another Defective Hip Recall From Stryker Medical Is Injuring Patients First, it was the Stryker Medical’s Accolade TMZF Plus Hip Stem, which was recalled in 2011 because of a problem due to employee error. This was followed in 2012 by the Rejuvenate and ABG II femoral stems, which were prone to failure and were responsible for a condition known as metallosis (metal poisoning of the bloodstream and tissues). Stryker settled lawsuits over those products this year for $1.4 billion. But it looks like Stryker’s criminal career isn’t over yet. The latest defective product to come out of the medical device manufacturer is the LFIT (“Low Friction Ion Treatment”) Anatomic CoCr V40 femoral head. This is the part of the hip implant that replaces the patient’s own natural femoral head, which is the round protrusion that fits into the socket of the hip joint itself. The entire device fits into the patient’s femoral (thigh) bone. The part that is actually inserted into the patient’s femur is the taper lock — and these have been corroding and fracturing at an alarming rate. When that happens, the patient not only loses the benefit of mobility; the consequences can be disastrous, and include metal poisoning and broken bones around the site — all of which can cause excruciating pain and require revision surgery. This issue was recently brought to public attention by the Australian

40,000 Women Have Suffered From Essure, Only About 1,000 Lawsuits Filed. What’s Wrong? Since the Essure contraceptive device first received FDA approval in 2002, the federal regulatory agency has received 10,000 complaints about the device. Over the same period, the manufacturer, Bayer, has gotten an additional 30,000 reports of adverse events related to Essure. These events include cramping, dizziness, nausea and vomiting, perforation of the organs, fluid buildup in the blood (hypervolemia), osteoporosis and chronic pain that lasts a lifetime. In many cases, the device cannot be retrieved, so a complete hysterectomy must be performed. These symptoms have affected one in every five women who have had the device implanted — yet as of this past August, only a little over 1000 lawsuits have been filed. In most cases, Essure victims have little or no recourse, due to a legal loophole that protects Bayer from being sued. That loophole is the doctrine of “preemption.” Simply put, it means that federal law trumps local law. In this case, since Essure was approved through the 510(k) Pre-Approval Process by the FDA — a federal agency — Bayer cannot easily be held

liable for violations of state and local consumer protection laws. The FDA’s Pre-market Approval process (PMA) has allowed an extraordinary number of harmful prescription drugs and medical devices onto the market. It has also led to an equally extraordinary number of injuries and deaths. The way it works: a drug maker or medical device manufacturer demonstrates that its new product is “substantially similar” to a previous version of the same product. If the FDA is in agreement, the usual requirements calling for extended studies and testing of said products are waived. The company’s only obligation is to do some “postmarket” surveillance. But here is the rub: under conditions of the PMA, Conceptus (the original manufacturer that was taken over by Bayer) was required to complete its post market studies within five years of approval. That means a report to the FDA was due in 2007. However, Bayer did not publish those findings until 2015 — eight years afterward. Even then, the study was sloppy; only 70% of the patients who received an Essure device had been tracked. In order to overcome the doctrine of preemption that is currently shielding Bayer from liability, plaintiffs’ attorneys will have to prove that the company was negligent in a manner that was in violation of federal law. This is unfortunately the defense used by corporate trial lawyers: it doesn’t matter how negligent the company is, as long as there has been no violation of federal statute.


Pharmaceutical Companies Conspire To Keep Opioid Addicts From Getting Help According to a lawsuit brought by the attorneys general of 36 states across the country, three pharmaceutical companies — Reckitt Benkiser, Indivior, and MonoSol Rx — have been engaging in a conspiracy to change the form of Suboxone from a tablet to a type of film that is dissolved by saliva. The purpose: to prevent generic versions from entering the market, thus maintaining a monopoly on a medication that helps addicts control their cravings. The lawsuit alleges that these companies are in violation of state and federal antitrust regulation. Over the past several years, the abuse of opioid pain medications such as OxyContin, Vicodin and similar prescriptions have reached epidemic proportions — and Big Pharma players have been taking full advantage of the situation. According to the complaint, patients have been forced to pay inflated prices for Suboxone for the past seven years. At that time, generic versions of the medication might have been made available. What happened? In 2009, Reckitt Benckiser’s patent on Suboxone expired. Up to that point, the U.K.-based drug maker controlled 85% of the market. At stake was hundreds of millions in profits. The scheme Reckitt Benckiser engaged in is called “product hopping.” In this case, Reckitt Benckiser and Indivior collaborated with MonoSol Rx to change the form of the medication from tablets to a film that dissolves in the patient’s mouth. That version came out in 2010, and is scheduled to remain under patent until 2023. According to the complaint

that was filed in September, Reckitt Benckiser used “fear-based messaging” and “sham science” in order to hamstring sales for the pill version while putting its resources into marketing the film. However, the film offered no improvement over the pill version, which Reckitt Benckiser continued to sell in other countries of the world while taking it off pharmacy shelves in the United States.

Monsanto On Trial For Crimes Against Humanity On Friday, October 16th, a group of 30 farmers, scientists, activists and legal experts gathered in The Hague, Netherlands for the purpose of putting the transnational corporate agribusiness giant on trial for “crimes against nature and humanity” as well as charges of “ecocide.” The tribunal, which was announced in Paris last December, included representatives of organizations such as the Organic Consumers Association, Regeneration International and Millions Against Monsanto. The group of 30 witnesses presented their case before a panel of five judges from around the world, describing the extent of environmental damage caused by the use of Roundup, Agent Orange, and patented GMO seeds. One witness gave testimony on the ways in which Monsanto has been destroying ecological diversity, comparing its patenting of seeds to imperialism and colonization. Another, a Mexican farmer named Feliciano Ucam Poot, said, “Before the introduction of glyphosate and other agrochemicals, I did not see our people suffer from sickness like this.” The bad news: the tribunal was

largely symbolic. The five judges presiding over the ongoing hearings are recording all allegations and will be examining the evidence over the coming weeks. They are expected to release their findings sometime in December. However, any rulings in this case will not be legally binding and will have no immediate effect on controlling Monsanto’s behavior. However, the evidence that is found will be useful in pursuing legal actions against corporate polluters going forward. French Greenpeace activist Arnaud Apoteker, who has been leading the battle against GMO crops in Europe for the past several years, points out, “Although this [tribunal] is not legally binding, it is legally sound… witnesses were presenting real cases to real judges. The lessons from this event can be used in ensuing local battles.”

Stockert 3T Surgical Medical Device Causing Serious Infections Lawsuits allege that the manufacturer of the Stockert 3T forced air warming device, LivaNova, was aware of an elevated risk of infections due to use of the device during surgery — and failed to warn the medical community of these risks. It’s a story we’ve heard before. Several months ago, another device used to regulate the surgical patient’s body temperature was a cause of action in numerous lawsuits. That was a warming blanket that employed forced air, known as the Bair Hugger. The Stockert 3T Heater-Cooler device serves a similar function, using water to regulate patient body temperature. In both cases, the medium used becomes contaminated with infection-causing The Trial Lawyer x 35


bacteria. According to Swiss researchers, the heater-cooler unit provides an ideal environment for a certain bacteria implicated in patient infections. With the Stockert device, that bacterium is a particularly nasty one. Known as mycobacterium chimaera, or “m. chimaera” for short, it is a species that thrives in water. Furthermore, because the cell walls of this bacterium are resistant to disinfectants, there is no reliable way to get rid of it, except for possibly boiling the water. Although the water used in the Stockert 3T never actually comes into contact with the patient, that water can turn into a vapor, which is then released into the operating room. Once airborne, m. chimaera can make its way onto sterilized instruments, implants, and even into the patient’s body itself. Symptoms of m. chimaera infection include long-term fever, chronic fatigue, night sweats, joint and muscle pain, redness and pus around the incision site, persistent cough that produces blood, nausea and vomiting. Unfortunately, m. chimaera infections are difficult to diagnose, due to its long incubation period and the fact that it normally affects people with compromised immune systems to begin with (healthy patients are less likely to be infected). The resultant infection is even more difficult to treat. The best treatment requires broad spectrum, high-potency antibiotics, and can go on for twelve months or more. In 50% of cases, the infection is fatal.

Trump Settles Massive Trump University Case For A Whopping $25 Million

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Donald Trump settled the cases concerning his fraudulent business Trump University for $25 million. In three cases focused on his fraudulent “university,” Trump has agreed to settle them all to put the scandal to rest before his inauguration — and to prevent the President-elect from having to take the witness stand. $25 million might not be much, but the settlement is yet another significant scratch on Trump’s business persona. Considering how many times Trump has asserted that he doesn’t settle cases, that’s exactly what he did. According to his Twitter account, settling this case is a big regret for the president-elect. Trump University was a not insignificant scandal during the election, with cheated students coming forward to share their stories. Stories of bait-andswitch tactics and high-pressure sales pitches made many respond in disgust to Trump’s business ethics. Through it all, Trump repeatedly defended his university fraud, and ultimately, the scandal wasn’t enough to tank his candidacy. Now, around 6,000 injured persons will split the settlement cash, with $1 million going to New York state as a penalty for violating education laws.

SCOTUS To Rule On Rights Of Transgender Americans In 2017 In 2017, the Supreme Court will preside over a case of blatant discrimination in the case of Gavin Grimm, a 17-year-old

trans boy who was banned from using his school’s male restroom. Grimm’s story is similar to others in small-town communities all over the United States: rather than accepting him for who he was and allow him to perform one of the most basic human functions in peace, Grimm was banned from using the restroom most safe for him, while also using the entire community’s ire and ridicule against him. Long before the “bathroom bill,” became front-page news, Grimm was barred from using his school’s men’s restroom in Gloucester County, Virginia. The high school senior then filed a lawsuit against the school in June of 2015, arguing that the policy violated his right for protection from genderbased discrimination. Though the U.S. constitution should easily have applied to Grimm and other trans Americans, his status as a trans male complicates the matter. Currently, neither sexuality nor gender identity are protected statuses under the U.S. constitution, a right for which the LGBTQ community is still fighting.


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NETWORKING 101: What They Forgot To Teach You In Law School By Sharon Boothe, Vice President, Mass Torts Made Perfect

Everyone knows that being a speaker at a high profile seminar is the professional equivalent of getting a huge endorsement from some icon in your industry — being asked to speak means you must be knowledgeable, interesting — you must be a “player.” So, you have instant credibility as you wander the halls of the event hotel — you’re invited to the speakers’ reception, you get a special badge and ribbon, you’re elite.

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But what if you’re an attendee, swimming in a sea of people, trying to make a name for yourself at a conference? How do you connect with

others and establish yourself amongst all your peers? You are attending the conference to hopefully learn, but more importantly, to lay the foundation for

future business deals and partnerships. The alliances and relationships that you begin with other attendees at seminars will likely come into play in the future.


their room to read email or go shopping, or go sit by the pool. This is a working conference and every event is meant to help the attendee maximize his or her time there.

The time will likely come when you will need an ally or information — knowing who to contact at that moment will be critical. When that big problem or choice opportunity lands on your desk, you’ll be glad to know who to reach out to for answers, advice, or partnership. Conferences are where these professional relationships are built and cultivated. Most legal conferences and trade shows are set up with the attendee in mind: the organizers want their seminar to be “user friendly” and they want you, the attendee, to be able to make the most of your time there and then in turn, want to return again and again. Keep that in mind as you are planning — the organizers should be your resource, your ally. Here are some specific tips that will help you navigate your way through your next seminar: #1 If They Build It, You Should Come At Mass Torts Made Perfect, we’ve established a forum and reception specifically for 1st time attendees. First Timers are invited to a workshop where we discuss the different aspects of the program and answer their questions, and then have an informal cocktail party 40 x The Trial Lawyer

where they can begin the practice of networking. But out of 200 or so firsttimers, only around 100 attend this event organized especially for them. 50% of them are missing out on this exclusive introduction and opportunity to really gain a foothold at the seminar, and the chance to meet some of the speakers who attend. It’s important that if the seminar organizers invite you to a special event that you attend — they are doing this for you! Your time at the seminar is important — don’t waste it wandering around alone when you could be at a great networking event. #2 Location, Location, Location Stand next to the bar at the cocktail party, or next to the coffee urn at breakfast. Just doing that will probably solve all of your networking challenges! It may seem obvious, but in the meeting room, sit at a table with other attendees — don’t just hang in the seats in the back. Definitely attend any lunch or meal event and sit at a table with others — most of the attendees are in the same boat you’re in — they don’t know anyone either. At MTMP, we work with our vendors to host several meals, and it’s surprising how many people skip the luncheons or reception to go back to

#3 Meet the Vendors — They Are Smarter Than You! The exhibit hall at MTMP is full of vendors who are there to tell you about the latest greatest trends in their industry. Don’t be afraid of them — they won’t bite. (And they often have cool giveaways and raffles for things like flat screen T.V.s and iPads!). These vendors are knowledgeable, enthusiastic, and genuinely interested in finding those attendees who could benefit from their product or service. If you visit their booths, you’ll find that they have a lot of information to share, and they tend to know a lot of the players and are extremely well-connected. Many of them have been doing this for 15, 20 years. They are not to be avoided — they are a fantastic resource — use them! #4 Embrace Your Inner Extrovert Knowing what your objectives are when you attend a seminar is important — you need to figure out what you want to accomplish while you’re there. If you want to get involved in the new Essure project, approach the Essure speakers after their talk. If you are looking to meet specific lawyers from firms you’re interested in working with, enlist the help of the seminar staff to find those attendees. You will need to reach out repeatedly, and that can be difficult even for people who consider themselves social. Just remember that it’s a numbers game — the more times you reach out, the more chances you’ll have to make a good connection. Oh, and lastly — wear comfortable shoes. You’ll be glad you did!


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Are You Taking This

DANGEROUS ANTIBIOTIC? By Martha Rosenberg

“I was given the antibiotic Levaquin. After 5 pills my body was burning and my right arm and legs were weak,” a reader posted after an article about underreported prescription drug dangers. “I discontinued the drug and was told I would be fine. 1 month later my feet started hurting, my knees developed chronic pain and I had stabbing pain in my quads. 13 months later, I have floaters in my vision, tinnitus, flat and deformed feet, rotator cuff damage, knee grinding, hip snapping, tendonitis and I can only walk for a few minutes.”

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After taking Levaquin, another patient had “multiple areas of tendinitis in triceps, biceps, rotator cuff, hip flexor, feet and lower back,” he wrote on the web site askapatient.com. “I had joint swelling and severe pain in my wrists and fingers, generalized fluid retention and edema, joint popping with any movement in feet, ankles, knees and hips.” Before taking Levaquin, “I was a sponsored athlete — happy, strong and active. Levaquin has ruined me.” The drug the patients are talking about, the antibiotic Levaquin (levofloxacin), is part of a group of drugs called fluoroquinolones, widely used until recently for urinary tract infections, bronchitis, sinusitis and other infections. Other drugs in the class include Avelox (moxifloxacin), Cipro (ciprofloxacin), Floxin (ofloxacin), Factive (gemifloxacin mesylate) and Noroxin (norfloxacin). Patients’ stories about taking Levaquin share striking similarities. Illinois resident Jerzy Tyszkowski who filed a complaint against Johnson & Johnson and OrthoMcNeil-Janssen Pharmaceuticals, Inc. about Levaquin in 2013, says he developed severe orthopedic, gastrointestinal, neurological, visual and renal injuries after taking the drug for only five days. Like many prescription drugs, the enormity of Levaquin’s risks did not emerge until it went off patent and all possible profit was netted. (Until then, the drug was making manufacturer Johnson & Johnson over $1 billion a year and was the top-selling antibiotic.) Worse, the FDA did not acknowledge that the disabling side effects from the drug class were not “rare” at all, but common and possibly permanent until patient groups, books, videos and lawsuits like Tyszkowski’s reported them. Only in May did the FDA warn that the drug class should only be used as a last resort. In July, it provided language for new label warnings and a medication guide to be given to every patient. Better late than never. Red Flags Ignored Fluoroquinolone antibiotics are among the biggest-selling drug classes. Demand

for Bayer’s Cipro was so strong after the 9/11 attacks when anthrax-containing letters were sent to media outlets and lawmakers, killing five and infecting 17, daily prescriptions soared to 14,000 a day. Bayer planned to open another plant. But by 2008, Cipro was under the same cloud as other drugs in its class thanks to an FDA announcement that cautioned fluoroquinolones posed an increased risk of tendinitis and tendon rupture. The FDA warning, which told drug makers to make label changes, said the agency had conducted a new data analysis of tendinitis and tendon ruptures and identified a three times greater risk for patients using fluoroquinolones. “Patients experiencing pain, swelling, inflammation of a tendon or tendon rupture should be advised to stop taking their fluoroquinolone medication and to contact their health care professional promptly about changing their antimicrobial therapy,” the FDA advised in its statement. “Patients should also avoid exercise and using the affected area at the first sign of tendon pain, swelling, or inflammation.” The watchdog group Public Citizen called for warnings about the tendinitis and tendon rupture side effects with the drug class as early as 1999 and sued the FDA in 2006 to have warnings added. At the time, 10 years ago, Public Citizen cited 262 cases of tendon ruptures, 258 cases of tendonitis and 274 other cases of other tendon problems. A more recent count in a medical journal revealed there have been 2,495 reports of tendon rupture linked to fluoroquinolones from their respective approvals date through 2012. There were 1,555 for Levaquin (levofloxacin) and 606 for Cipro (ciprofloxacin) said the research. Tendinitis and tendon ruptures, it turned out, were the tip of the Levaquin and fluoroquinolone iceberg. In 2013, the FDA admitted under pressure from public health officials and patients groups that the “serious side effect of peripheral neuropathy” (nerve damage) can “occur soon after these drugs are taken and may be permanent.” By then, hundreds of lawsuits had charged that warnings falsely claimed that the side effects were

“rare” and that symptoms go away on discontinuation. In fact they are often permanent, charge patients and patient groups who are raising awareness, and have coined the term “Fluoroquinolone Toxicity Syndrome.” And there was more. Fluoroquinolone use is a “major risk factor for development of community and hospital acquired C. difficile infection,” reports the Duke Antimicrobial Stewardship Outreach Network (DASON), the dreaded and tenacious intestinal microbe. The drugs are also linked to mental effects like confusion and hallucinations, says DASON, and a medical journal reports psychosis. The Journal of the American Medical Association reported that of 4,384 patients diagnosed with retinal detachment, 445 (10 percent) were exposed to a fluoroquinolone in the year before diagnosis. Other possible fluoroquinolone side effects include liver injury — which caused Trovan (trovafloxacin), a different fluoroquinolone to be withdrawn — and heart problems — which caused the fluoroquinolone Raxar (grepafloxacin) to be withdrawn after heart-related deaths. Omniflox, another fluoroquinolone, was withdrawn from the market after more than 100 patients experienced allergic events, hemolytic anemia and worse. Patients also experienced kidney dysfunction on Omniflox and half needed dialysis. Others suffered liver dysfunction. Was Former FDA Commissioner Hamburg Culpable? This spring, a federal lawsuit was filed against former FDA commissioner Margaret Hamburg, her husband, Peter Brown and Johnson & Johnson. It charges the parties sought to inflate Johnson & Johnson stock price by hiding risks linked to its drug, Levaquin. Brown is an executive in the hedge fund Renaissance Technologies which held hundreds of millions of dollars of Johnson & Johnson stock according to news reports. “While Defendant Hamburg was FDA Commissioner, her husband, The Trial Lawyer x 43


Defendant Brown’s annual income, not coincidentally, increased from a reported $10 million in 2008 to an estimated $125 million in 2011 and an estimated $90 million in 2012, due in whole or in part to Defendants’ racketeering conspiracy to withhold information about the devastating, life threatening, and deadly effects of Levaquin,” says the suit. Hamburg left the FDA in 2015 but not before naming Robert Califf FDA Deputy Commissioner for Medical Products and Tobacco. Califf went on to become the new FDA commissioner despite 23 financial links to pharmaceutical companies including board appointments.

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Fluoroquinolones Use in Livestock U.S. factory farmers turn nasty when the government tries to take away their antibiotics. Without antibiotics, animals would require more food and more room to move around, eating into profits. In 2008, the egg, chicken, turkey, milk, pork and cattle industries stormed Capitol Hill over the FDA’s attempt to prohibit the use of antibiotics called cephalosporins and they won. Instead, the government backpedaled into its current livestock antibiotic regulatory system which many consider toothless, full of loopholes and an honor system. The use of antibiotics on the farm has actually increased. After a decade-long battle with Bayer whose fluoroquinolone Baytril (enrofloxacin) was routinely used in

poultry, the government managed to ban the antibiotic’s use in poultry water. As with all antibiotics used in livestock, the FDA worried about the development of fluoroquinolone-resistant bacteria sometimes called “superbugs” and the ability to treat human infections. But fluoroquinolones are still clearly in use on U.S. farms. The USDA’s National Residue Program for Meat, Poultry, and Egg Products which tests for six fluoroquinolones found enrofloxacin (Baytril) and ciprofloxacin (Cipro) residues in meat in 2014, 2013 and 2012 — the most recent reports available — and danofloxacin residues in meat in two of the three years. Yes, drugs not even recommended for people are found as residues in U.S. meat.


DONALD J. TRUMP: Grifter-In-Chief By Richard Eskow


Our country’s privileged few used to exert their control through political surrogates. Now, thanks to Donald Trump, they’re taking a more hands-on approach. If it weren’t for his appeals to hate, it would be easy to understand why so many voters were taken in by Trump. It’s not just that the middle class is dying, or that wages have flatlined and inequality has soared. It’s that there is real fear behind those numbers. Millions of Americans, of all races, genders, religions, and national origin, are living in economic fear and distress. Two-thirds of us would have trouble meeting a $1,000 emergency.

That kind of economy is a breeding ground for grift. Studies like those conducted by Boston College’s Center for Retirement Research confirm what professional con artists have always known: people in financial distress are easier marks. And make no mistake about it: Donald Trump is a con artist. Trump voters have been taken in by a grift so shameless he might as well have pretended to be calling from the IRS. Trump was always a Trojan horse for the 0.01 percent. And now he’s forming a government of, by, and for the very elites he campaigned against.

Rule of the Ultra-Elite

That particular statistic hasn’t been this bad since the 1930s. Trump’s administration is already the wealthiest in history. Its members are heavily drawn from the tiny group of 16,000 people in this country who own as much wealth as 80 percent of the population — some 256,000,000 Americans. His cabinet picks include two confirmed billionaires (so far — he’s not done yet). They come from an even more

We already live in the most unjust and unequal economy in modern American history. A new report from Deutsche Bank shows that the top 0.1 percent of Americans now holds as much wealth as the bottom 90 percent. In other words, if the United States were 1,000 people in a room, just one of them would be as wealthy as 900 of the others.

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elite group: the 536 Americans whose combined wealth exceeds $2.6 trillion. For context, the median wealth of an American adult is roughly $34,316. It’s not just their wealth that distinguishes Trump’s team from the vast majority of Americans. It’s their class exclusivity. Trump has largely drawn from people who, like him, were born into wealth and privilege. This insularity, combined with the heartlessness of the policies they espouse, makes it even less likely that they will empathize with — or even understand — the problems of ordinary people. Most of them have never experienced hard times. And judging from their policy positions, they can be counted on to have about as much empathy for working people as Leona Helmsley’s dog. By the way: that dog, who was rich enough to join Trump’s cabinet, was named “Trouble.” Goldman Sachs Bait-and-Switch Here’s Trump last February, speaking about his primary opponent Ted Cruz: “I know the guys at Goldman Sachs.


They have total, total control over (Cruz). Just like they have total control over Hillary Clinton.” Here’s a Trump campaign ad showing images of Goldman Sachs CEO Lloyd Blankfein, as the narrator speaks of “a global power structure that is responsible for the economic decisions that have robbed our working class, stripped our country of its wealth and put that money into the pockets of a handful of large corporations and political entities.” And here’s a headline from two weeks after the November election: “Goldman Sachs poised for return to power in Trump White House.” Goldman made a good foil for Trump. The firm committed serial fraud, and nobody went to jail. Bill and Hillary Clinton’s dealings with the firm, including Hillary’s highly-paid private speeches, were a major campaign weakness. It was made worse by pictures her laughing and hugging Goldman COO Gary Cohn. Trump made the most of that weakness. Democrats were vulnerable to Goldman-themed, anti-elitist attacks, and Trump was more than happy to use the firm as an example of everything that’s wrong with our political and financial system. What a difference a few weeks make. Key Trump picks from Goldman Sachs include Steve Mnuchin, Trump’s pick for Treasury Secretary; his political czar, Steve Bannon; his transition advisor Anthony Scaramucci; and even Cohn, who is seen as a possible top hire. Predators on Parade Mnuchin was a mortgage predator whose used his California bank, OneWest, to enrich himself through foreclosure fraud. A report from the California Reinvestment Coalition showed that the outfit he ran, OneWest, preyed on vulnerable seniors and became a specialist in the “foreclosure of widows.” His bank reportedly foreclosed on a 90-year-old woman over a 27-cent error. There’s no delicate way to say this: That’s monstrous. Will Mnuchin exploit the federal

government for his personal benefit? He already has. The California Reinvestment Coalition estimated that OneWest was collecting $2.4 billion in federal funds, aka corporate welfare, despite its history of fraudulent foreclosures and predatory lending. Then there’s Wilbur Ross, Trump’s reputed choice for Commerce Secretary. He was born into comfort and became a billionaire through a series of predatory investments. Ross, whose art collection is valued at $150 million, specialized in purchasing distressed companies so that he could fire their employees and sell off their assets. “We have actually been bankers,” Mnuchin said this week of himself and Ross. They have actually been predators, too. Mnuchin says he wants to cut back on the Dodd-Frank bill, a measure that took some first steps toward reining in Wall Street’s greed and recklessness. Assuming he succeeds — a good bet, since Republicans hold both houses of Congress — he and his fellow bankers will soon have a freer hand to rip off customers and endanger the economy. During the campaign, Trump called hedge funders “guys that shift paper around and get lucky.” They’re about to get even luckier. Wealth and Human Disservices Tom Price, Trump’s choice for Secretary of Health and Human Services, is “only” worth a reported $13.6 million, making him a virtual plebeian in the Fabergé-egg Trump cabinet. But he’s gone to bat for the aristocracy. Not content to attack the Affordable Care Act, Price is also intent on privatizing Medicare. That’s a good deal for the ultrawealthy, who will pay less in taxes, but a disaster for everyone else. Betsy DeVos, Trump’s billionaire pick for Education Secretary, is unremittingly hostile to public education as we know it. As Jeff Bryant explains, her political extremism is matched only by her determination to continue the policies of a small but determined group of education privatizers that educator Diane Ravitch calls “the Billionaire Boys’ Club.” As the daughter-in-law of Amway

founder Richard DeVos, Betsy DeVos belongs to a family whose net worth is more than $5 billion. But it couldn’t have been a difficult adjustment, since she’s also the daughter of a wealthy Michigan industrialist. Ben Carson, who will lead Housing and Urban Development, grew up outside the typical Trump appointee’s bubble of wealth and privilege. But with a reported net worth of $26 million, Carson can afford the price of admission. What’s more, his willingness to blur the line between a presidential campaign and personal enrichment proves that he’ll fit right in. Carson’s department was created to address historical biases and injustices in housing. These injustices can warp communities, and the nation, for generations to come. And affordable housing is a human right. But when it comes to architecture, Carson’s greatest claim to fame is his belief that the Egyptian pyramids were used to store grain. There’s no sign that he understands HUD’s intended purpose, either. The Ruthless Few And now we learn that the CEO of Exxon Mobil is being considered for Secretary of State. It’s becoming clear that Trump plans to give direct control of the government to the people who have indirectly ruled us for decades, thanks to an over-financialized economy and a government whose policies are guided by the desires of oligarchs. Trump used vulnerable swing-state voters to take the government for the 0.01 percent, and he did it coldly as Steve Mnuchin used a 27-cent mistake to take that woman’s house. Voters who were eager to trust him forgot that most fundamental of psychological principles: Grifters gotta grift. Environmentalist Bill McKibben recently quoted author Jonathan Schell as saying, “Nonviolence is a means by which the active many can overcome the ruthless few.” Let’s hope so, because the ruthless few are about to assume command.

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LITIGATION IS THE ONLY PATH TO ENFORCE EQUAL PAY LEGISLATION By Lori Andrus

With the passage of the Equal Pay Act in 1963, women were promised fair pay. That social contract has failed: women’s wages remain less than men’s across every single industry in the United States. Although the wage gap has shrunk, progress has stalled since 2007. At this rate, women will not achieve equal pay until 2059. All the diversity training in the world can’t seem to fix this stubborn problem. Mentoring programs have limited impact. Aggressive recruitment efforts don’t translate into management-level equity.


You know what works? Litigation. As trial lawyers, we are uniquely situated to close the wage gap once and for all. I entreat you to actively seek out these cases and press them hard. Trust me, seeking justice for working women is richly rewarding. Corporations loathe accusations of bias. Just look at Fox News. Gretchen Carlson called out Roger Ailes’ pattern of abuse and management sent him packing. This, after Fox had already severed ties with Carlson, whose ratings were dropping. Five years ago, Fox would have defended Ailes until the cows came home. Instead, Fox resolved the dispute speedily, wanting to show the world that female members of their workforce are valued and treated fairly. Why the shift? Kim Jong-un. Seriously. The Sony email hack revealed that Oscar-winning actress Jennifer Lawrence, earned a fraction of her male counterparts in American Hustle. Have you seen that movie? Her performance was nothing short of masterful. Her performance in Winters’ Bone established her as a world-class actress, and her role as Catniss Everdeen in the blockbuster Hunger Games trilogy rocketed her into Hollywood’s upper echelon. But still, pay her fairly? Nah. Well, they picked the wrong doyenne to mess with. Jennifer Lawrence, and her allies, male and female, took to the virtual streets. Bradley Cooper has pledged to inform all of his future female co-stars of his contract amounts. Patricia Arquette bravely proclaimed to the Red Carpet crowd “It’s our time to have wage equality once and for all.” In a high-profile chorus, Gillian Anderson (X-Files), Robin Wright (House of Cards), Lena Dunham (Girls), and Mindy Kaling (The Mindy Project) all said “Enough is enough!” In the meantime, five members of the U.S. Soccer Team filed an equal pay complaint with the EEOC, multiple law firms got sued, and the tech industry came under rapid fire for unequal pay. This new climate — where women demanding equality are not simply marginalized or ignored — is the perfect

one for us to dust off the old Equal Pay Act and put it work. How to Prove a Claim Under the Equal Pay Act The Equal Pay Act (“EPA”), 29 U.S.C. § 206 et seq., amended the Fair Labor Standards Act (“FLSA”). As such, the EPA adopts the same procedures and the same remedies as the FLSA. If you’ve handled a wage and hour claim under the FLSA, you already know the drill. The EPA states: No employer … shall discriminate, within any establishment … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. There are four justifications (defenses) for unequal pay: a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or another differential based on any factor other than sex. This last catch all is where the real fight lies, since a defendant can assert all kinds of bogus excuses (like, “he negotiated for higher pay”). Success will depend on your venue, your judge, and your creativity. One huge advantage of the EPA: it does not require plaintiffs to prove intentional discrimination. Unequal pay for equal work suffices. Other reasons to love the EPA: double damages are available; attorneys’ fees, too. Plaintiffs do not need to exhaust remedies prior to filing suit. Like FLSA cases, EPA cases can be brought on behalf of all “similarly situated” employees. If you have multiple plaintiffs, or if you are confident that the pay disparity occurs across a group of employees, plead your case as a collective action. Conditional certification comes early in the case (well before the close of discovery) and the standard has been described as “very low” and “fairly lenient.” Once you’ve secured conditional

certification, you can notify other putative class members and invite them to opt in pursuant to Hoffman-LaRoche, Inc. v. Sperling, 293 U.S. 165 (1989). The opt-in plaintiffs become parties to the lawsuit, and act as great insurance against the threat of second-stage decertification after the close of discovery. Even if your class is decertified, you will still have multiple individual cases to bring to trial. EEOC regulations can be problematic when it comes to certifying a nationwide class. In explaining the statute, the EEOC says: “the term ‘establishment’ … refers to a distinct physical place of business rather than to an entire business…. Accordingly, each physically separate place of business is ordinarily considered a separate establishment.” 29 C.F.R. § 1620.9(a). As you might expect, defendants use that regulation to argue that employees from different branches/offices can never be joined together in one suit. Case law is mixed on this question, but there are many examples where multilocation classes were certified based on a showing that control of the business was sufficiently centralized as to treat multiple locations as a single establishment. See, e.g., Kassman v. KPMG LLP, No. 11 CIV. 03743 LGS, 2014 WL 3298884, at *8 (S.D.N.Y. Jul. 8, 2014) (citing Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir. 1994)). Planning Your Strongest Attack As you explore potential cases, you will want to consider what other claims you need (or want) to include. Title VII also prohibits pay discrimination based on gender. The interplay between the protections offered (and proof required) under these overlapping statutes requires a well-organized complaint, careful briefing throughout the case, and strategic planning with your labor economist expert. Keep in mind that Title VII claims are certified pursuant to Federal Rule of Civil Procedure 23. It’s a higher bar, but once you’ve cleared in, class members typically have to opt out, so you’ll represent a larger class than if you only bring EPA (opt-in) claims. The Trial Lawyer x 49


Last, various states offer strong equal pay protections (California, Massachusetts and New York among them). Depending on your client’s factual situation, you might need to include sexual harassment claims, failure to hire/promote claims or other claims that often go hand-in-hand with unequal pay. In my view, laserfocused complaints tend to wield the most force, but be sure that you discuss all the possibilities with your client(s) and comply with all rules of professional conduct in perfecting your complaint. Why Men Should Care Equal pay is not a women’s issue. It is an economic issue. Fifty-nine percent of the workforce is female. Women are nearly two-thirds of minimum wage earners. Women are the primary or sole breadwinner in 40% of households with children under age eighteen. In California alone, if women were paid fairly, an additional $33 billion dollars would flow into the state’s economy, per year. Paying women what they’re owed would cut women’s poverty rate in half overnight. All of us, not just women, will benefit when pay equity is won. 50 x The Trial Lawyer

Understanding the Nuances of Pay Inequity We’ve all heard that women earn 78 cents on the dollar. That figure — the “raw” wage gap — is based on data collected by the U.S. Census Bureau. As you take on equal pay cases, you will need to understand some nuances of the drivers of pay equity. First, the value of your case will not be based on the raw wage gap, because that figure is an average of all full-time female employees’ earnings compared to men’s. The “adjusted” wage gap in individual industries varies. For lawyers, the gap narrows to between 79 and 83%. For insurance agents, the gap widens to 64.4%. You won’t know the precise gap in your case until your expert has analyzed the defendant’s compensation data. Rest assured, though. The pay gap exists in every single industry. Despite some rare exceptions where companies are proactively tackling fair pay (Apple, Go Daddy, and Salesforce are notable examples), virtually every company in America has exposure. As you discuss your new practice area

with friends and colleagues, you may hear criticism that the gender gap only exists because women “choose” lower-paying fields, or because women “opt-out” of the workforce to raise children. Busting these and other common myths could be the subject of its own article, but for now, I point you to a 2016 Cornell University study that shows that women’s work is simply undervalued. As women take over male dominated jobs, the pay drops for everyone. Apparently, “if a woman can do the job, then it must be worth less to society.” Seize the (Equal Pay) Day Equal Pay Day is the day that symbolizes how far into the year women must work to earn what men earned the previous year. This year, Equal Pay Day is April 4th. That would be a perfect day to announce the filing of equal pay complaints across the land, wouldn’t it? Who’s with me?! Citations available on request


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

more of their patients kill themselves while under their “care.”

Sexual Abuse. Psychiatrists sexually assault

more patients than any other medical profession.

Physical defects. Their treatments cause male breast growth, birth defects and dozens of other debilitating conditions. The list goes on and on and on. Psychiatry is a profession rife with ethical misconduct and criminal negligence. THE CITIZENS COMMISSION ON HUMAN RIGHTS (CCHR), a mental health watchdog and clearing house for information on psychiatric crimes and abuses, works alongside many legal and medical professionals to bring them to justice. CCHR has assisted attorneys to prosecute and win millions of dollars against psychiatrists and the makers of psychopharmaceuticals. CCHR’s services are free to those who are bringing psychiatrists to justice.

Order your FREE Psychiatry: An Industry of Death DVD cchr.org/freeDVD or e-mail contact@cchr.org.

GET THE FACTS • TAKE ACTION © 2016 CCHR. All Rights Reserved.

CCHR.ORG


“Women are the largest untapped reservoir of talent in the world.” — Hillary Clinton

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WHERE ARE ALL THE WOMEN LAWYERS? Diversity In The Legal Profession In California: 2015

By Deborah Chang, Panish Shea & Boyle LLP and Sonia Chopra, Ph.D., NJP Litigation Consulting

In 1987, the first chairwoman of the newly formed American Bar Association (“ABA”) Commission on Women in the Profession, Hillary Rodham Clinton, made a dire prediction. She believed back then that although women were entering and graduating from law schools in growing numbers, those numbers would not ensure that women lawyers would advance, succeed, or assume positions of power in law firms at the same rate as their male counterparts. Nearly 30 years later, recent studies and reports, including one by that same ABA Commission, have established that her prediction was accurate. What is so startling about Clinton’s prophetic remarks made almost three decades ago is how accurately it describes the status of women lawyers in California today. Despite all of the progress that has been made since that commission’s inception in identifying and addressing gender bias in the legal profession, current statistics tell a startling story: • As of July of 2014, the legal profession nationwide is predominantly (66%) male. • Only 17% of equity partners in law firms are women. • Women equity partners make less than their male counterparts. • As of the latest available statistics published by the California State Bar, only 32% to 39.4% of attorneys in this State are women. • As of 2012, only 31.3% of all judges in this state are women.

• 88% of Ninth Circuit judicial positions are held by men. Writers observing this disturbing trend have noted that “[s]omething terrible is happening in the practice of law … [and] making women walk away.” Despite earning more than half of all law degrees in 2012, “women are still leaving the legal profession in droves later on in life.” The numbers do not improve when considering the percentage of women trial lawyers who appear in front of juries in courtrooms. A recently published study sponsored in part by the ABA Commission on Women in the Profession and entitled “First Chairs at Trial: More Women Need Seats at the Table,” concluded that women are significantly and shockingly underrepresented as lead trial lawyers in court. As of 2015, the study established the following: • 68% of all lawyers appearing in civil trials are men. • 76% of all lead counsel at trial are men. • 78% of all plaintiffs’ cases are tried by men. • When women are lead counsel, it is for the defense 60% of the time. The report specifically noted that this lack of women as lead counsel was not due to the lack of talent or ability in female trial lawyers because other studies have demonstrated that women are highly effective courtroom advocates and that jurors are receptive and attentive to

women attorneys. So where did all those bright, energetic, creative women trial lawyers go? Maybe you remember them: they were the ones who so eagerly and confidently breezed through law school and graduated with the goal of becoming a successful trial lawyer. Where are they now? Not many made it to the first chair in any courtroom in California, that’s for sure. And with very few exceptions, not many made it to the equity partnership or management of any law firm either. It is a crying shame — and unacceptable in a state and country in which there are now more women than men in the general population. These statistics demonstrate that the legal profession — comprised of lawyers, law firms, judges, legal organizations, and clients — has failed. It has failed to keep these bright, talented, and motivated women lawyers whose unique perspectives would have undoubtedly helped clients, promote justice, and advance the legal profession. Every study to date has concluded that diversity and the inclusion and promotion of women enhance the performance and productivity of any organization. As Hillary Clinton noted, “when more women enter the workforce it spurs innovation, increases productivity and grows economies.” Research has also shown that the presence and inclusion of women raises the standards of ethical behavior and lowers corruption. Walk into any courtroom or

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seminar today and see how many women lawyers you find there. The Consumer Attorneys Association of Los Angeles (“CAALA”), the largest local association of plaintiff’s lawyers in the country, recently held their annual convention in Las Vegas. The following photograph was taken at the recent CAALA convention held in Las Vegas:

CAALA Convention — September 4, 2015, Las Vegas: Panel on Government Tort Liability The panel was typical of most panels at the convention. How telling that at the largest lawyers convention in the country, a single woman (the Hon. Samantha Jessner) is seated at a table surrounded by male attorneys. And that is the story of our lives: women lawyers are perpetually surrounded by men, waiting to be heard. We’ve Come A Long Way, Baby — Or Have We? Not surprisingly, the right of women to practice law in California or any other state did not come easily. The first woman to pass any bar examination in the country was Arabella Babb Mansfield in Iowa in June of 1869. Two months later, Myra Bradwell passed the Illinois bar exam, but was denied admission to the bar because she was a married woman who had family responsibilities. She appealed her case to the Illinois Supreme Court and later, to the United States Supreme Court to no avail. Finally, in 1890, the Supreme Court of Illinois granted her a license to practice law nunc pro tunc so that her license dated back to 1869. Unlike Mrs. Mansfield, Mrs. Bradwell did practice law — both before and after obtaining her law license. In California, Clara Shortridge Foltz wanted to take the bar examination and become a lawyer, but she encountered a law restricting the persons who could become members of the bar to only white males. She authored a state bill that replaced “white male” with “person” and thereafter passed the examination and was admitted in 1878. She applied to Hastings College of the Law to further her legal education and improve her skills, but she was denied admission because she was a woman. Undaunted, she sued the school and won admission and ultimately became the first woman attorney to practice law in California. The Criminal Courts building in 54 x The Trial Lawyer

downtown Los Angeles bears her name and is now known as the Clara Shortridge Foltz Criminal Justice Center. Ironically, these pioneer women lawyers would not get the right to vote until 1920, and while practicing, they were still considered to be the property of their husbands. In California as recently as in the 1970s, archaic language in the California Civil Code contained a chapter that placed women in the same legal category as children and “idiots.” Even in the early 1970s, it was difficult for women lawyers to succeed or negotiate effectively when they had difficulty obtaining a credit card in their own names. Numerous women trial attorneys practicing in that time period recall trial judges who refused to accept settlements proposed by women until a male partner verified the terms and put it on the record. It was around this time that women lawyers, weary of fighting such overt gender bias in the legal profession, began organizing task forces in various states to study the effects of gender bias in the courts, and state bar organizations and state and federal courts thereafter followed suit and conducted their own studies at various times. Over the years, with the passage of civil rights and other laws preventing discrimination, the overt gender bias experienced by women gradually became replaced by a much more subtle, yet just as detrimental, version. And inexplicably, this form of subtle gender bias is far more acceptable in society than race or other forms of bias because it is so pervasive. The end result is that despite all the work done by these task forces, bar organizations and courts, women are still leaving the legal profession. In August of 2006, the State Bar of California published a report on the results from an online poll of California attorneys that was conducted in 2005. The poll was initiated after it was realized that the demographic profile of California’s lawyers did not match that of the state’s general population. As a result of this demographic disparity, the state bar increased its focus on diversity in the legal profession. With respect to gender bias, the report included the following results: • 73% of women reported gender bias as a “major” or “moderate” problem; • 70% of women reported receiving inappropriate comments about their physical appearance or apparel; • 61% of women reported that they disagreed that they could advance as far as male attorneys in the legal profession; • 75% of women reported that they are not accepted as equals by their male peers; and • 50% of women reported sexual harassment. These results, reported by all women attorneys, reflect part of the reasons for the mass exodus of women lawyers from the profession. Many behaviors identified by these women and attributed to other lawyers in their law firms, judges, or opposing counsel were either illegal or prohibited by applicable ethical rules or canons. Applicable Ethical Rules The California Rules of Professional Conduct prohibit discrimination in the management or operation of a law


• 73% of women reported gender bias as a “major” or “moderate” problem; • 70% of women reported receiving inappropriate comments about their physical appearance or apparel; • 61% of women reported that they disagreed that they could advance as far as male attorneys in the legal profession; • 75% of women reported that they are not accepted as equals by their male peers; and • 50% of women reported sexual harassment.


practice on the basis of sex. Rule 2-400 states: Prohibited Discriminatory Conduct In A Law Practice. In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in: (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person … . California judges are likewise prohibited from engaging in speech, gestures, or conduct that are discriminatory. Canon 3 of the California Code of Judicial Ethics provides: A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (a) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, or (b) sexual harassment.” The California State Bar has also promulgated the California Attorney Guidelines of Civility and Professionalism, which includes the following pertinent portion: I shall be courteous and civil, both in oral and in written communication. Comment: A lawyer shall avoid disparaging personal remarks or acrimony toward opposing counsel, and should remain wholly uninfluenced by any ill feeling between the respective clients …. Derogatory racial, gender, or ethnic comments are unacceptable. Such guidelines for civility in litigation have also been adopted by numerous courts, and courts have sanctioned male attorneys for inappropriate comments made to women attorneys during depositions. California Women Plaintiffs’ Lawyers In 2015 As reflected by recent studies, women trial lawyers who represent plaintiffs have an even more difficult time getting to the courtroom table. Defense counsel represent insurance companies and manufacturers which have required certain quotas of women and minorities to be involved as trial counsel. No such quotas exist for injured or grieving plaintiffs, who often insist upon male trial attorneys to be lead counsel at their trials. Often, these women attorneys face an army of male and female defense counsel as opponents and experience 56 x The Trial Lawyer

condescending treatment, both in and out of the courtroom. In order to find out how these women were handling these issues in California, we prepared a survey that was distributed by CAOC (Consumer Attorneys Of California) in September 2015 to female members. Although we intend to continue collecting data on this survey for further analyses, our preliminary findings were nonetheless fascinating and eyeopening. The majority (65%) of responders were in small firms (less than 30 attorneys) or solo practitioners (26%). Twenty-six percent were equity partners in a firm, 32% were associates, and 17% were solo practitioners. Level of experience was varied and fairly evenly distributed with the majority having been in practice 11-20 years. While 35% of respondents reported that they were in male dominated workplaces, 32% work in firms where the majority of attorneys are women, and 25% said there were men and women attorneys in equal numbers. Analysis of the comments submitted reveals that these numbers reflect a shift amongst women who were unhappy at their treatment in larger and more male dominated firms and became a sole practitioner or partnered with other female attorneys to open their own firms: “In truth this is a good old boys’ business and it will be a long time before true equality exists, if ever. I had to start my own firm to be treated equally.” “I started my own firm because I wasn’t given opportunities at male owned firms.” “Absolutely, women do not get the same opportunities. Despite bringing in, I had to leave my partnership with men and start my own firm to be treated fairly.” One-third of respondents do not believe that their male peers accept and treat them as equals. This bias plays out in various forms. Women report being treated differently because of their gender and having to work twice as hard to get the same respect as their male peers: “I always have been underestimated.” “I don’t get respect unless I work twice as hard as they do.” “I have to work harder and perform better to be treated as equal.” “They have lower expectations of work quality and criticize me for things they do (e.g. interrupting).” Male attorneys are reported as being given more credit for ideas, more accolades for accomplishments, and more power in decision-making: “Sometimes I feel that male attorneys’ opinions are given


greater weight and that male attorneys still value other male attorney’s advice, opinions, more than me.” “When difficult decisions need to be made, the male colleagues tell me what to do for the most part.”

A number of women described disparate treatment compared to their male coworkers in terms of pay and opportunities:

“Women have to work harder to be perceived as successful litigators. As there are more senior male lawyers than women lawyers, when decisions are made by seniority it can effectively cut women out of certain opportunities.” The male dominance in the judiciary and amongst plaintiffs’ trial lawyers perpetuates problems of gender bias. Women reported feeling that the “old boys’ club” is still alive and well. Women attorneys report that men are more likely to give referrals to other men and that men are given more opportunities for networking and client development: “While my male peers may tend to treat me as an equal, this is still a VERY male dominated industry and I find that more experienced males tend to have archaic ideas about women and tend to have more respect for and give more opportunities to people ‘like them, i.e. male professionals.” “Male lawyers tend to get the exclusive invites to social events, which can lead to opportunities to work on cases with others and generate leads/referral opportunities.” “Women can’t ‘pal’ around like the guys - there is overt sexism, dirty jokes and ‘us’ vs. ‘them’ mentality.” “There are still many ‘old school’ types in PI that may say they support [women] but act differently.” “I think that the bar associations e.g. CAOC, still overlook women for panelist roles.” “I have been lucky to have had strong female mentors in this profession outside of my own boss, who recognize my abilities and respect me as an attorney. However, it is extremely disproportionate to the recognition and respect I receive from male professionals. I especially find this to be true in attorney organizations, where the vast majority of attorneys in leadership and receiving recognition are males. Further, the female attorneys who receive opportunities for leadership and recognition tend to have male mentors.” Women attorneys report experiencing workplace discrimination in a variety of forms, the most common of which are being given secretarial or administrative duties that their male counterparts are not expected to do, receiving less recognition for accomplishments compared to male attorneys, getting paid less than their similarly situated male colleagues, being given less important tasks and smaller cases, and being denied promotion because of their gender.

“I was paid $20,000-$40,000 less than male attorneys with substantially less experience than me even though the boss acknowledged that my work was better, I was given a much larger caseload, and my cases settled for much higher values;” “Denied job because agency already hired ‘enough women’; overlooked for firm when male friend with same qualifications got the job;” “ I do know other incompetent, less experienced male lawyers get great opportunities, but other women don’t, including myself. So why is that?” “I was not given assignments or work due to gender, and was not considered for partnership at previous firm, while a similarly situated male associate was offered partnership.” “I was told that the reason my offer was a lower salary than the other male attorney they were making an offer to was because he was married and had a wife and child to support, while I was unmarried and didn’t have children, so I could get by with less. Again, this was said by a partner at a highly respected CAOC plaintiff’s firm.” Women also reported their attitudes and experiences regarding the indisputable fact that the vast majority of lead trial counsel who try plaintiff’s cases are men. Male lawyers are reported to get the bigger cases, and they take the leadership The Trial Lawyer x 57


positions at trial that women believe they should have had the opportunity to have: “I have not been given the opportunity to go to trial on my cases. The cases are reassigned at the time of trial.” “I have not been asked to try and get leadership roles in class actions because our male partner handles all of that.” “‘Trial attorneys’ are men, and ‘case managers’ are women. Not exclusively, but a woman has to really, really demand a trial position and is given no training or support.” “In earlier cases I have felt I was not given visible assignments (like witnesses or things in front of the jury) because of my gender.” The perception that a female attorney is going to work less or be less dedicated because she wishes to have a family and raise children—whether she actually plans to or not—remains prevalent in the workplace. Assumptions about child rearing impact hiring, promotion, and case assignments for women attorneys: “I think women generally have a harder time getting promoted, particularly to partner status, where partners are all or predominately male. More so if the women has or wants to have kids.” “Just look at the trial attorneys. Now look at the ones with kids.” “The fact that I may have children without a stay at home parent is discussed and considered regularly.” “It has more to do with being a mother. More hours are expected at larger firms and less deference seems to be given to mothers than fathers.” Several women reported being demoted or denied opportunities after becoming pregnant and having children, despite no changes in their work accomplishments: “Initially perceived as a high achiever and on track for partnership; after having children and going to part time was told I would be kept on as staff attorney, off partnership track, and tied it to performance instead of change in personal status despite fact workload, performance and responsibility had not changed.” “I had a good training firm, so my opportunities were great. Even then, I think it is possible that I was delayed in promotion because I could not participate in an out of state trial because I was pregnant.” “Comments about how I no longer wanted a career job now 58 x The Trial Lawyer

that I was pregnant from a partner after a decision had already been made to lay me off, comment from a partner after I was laid off when I saw him at a party that ‘it must be awfully hard to find a job looking like that’ referring to my pregnancy.” Survey respondents with children reported that balancing career and family while striving to overcome assumptions about their loyalties and dedication was one of the most difficult parts of their practice. The belief that men are better trial lawyers than women because they are “more aggressive” is used to justify gender discrimination in hiring and in assignment of cases and tasks: “I haven’t had any of these problems but my co-associate, a woman, has. The difference is our litigation style. Mine is more “traditional” and aggressive. Hers is equally effective but our boss (male) doesn’t recognize its value.” “I think it has been harder for me to find jobs b/c male attorneys often assume by looking at me that I’m a pushover and not aggressive enough, which is hard to disprove at an interview.” “I feel like males do not feel that women are ‘ruthless’ enough to litigate as well as males.” According to the poll results, one of the most common challenges facing women attorneys today is how to be perceived as confident and assertive without being considered “a bitch.” Moreover, because women lawyers encounter more resistance in having staff or younger attorneys respond immediately to requests when compared to their male counterparts, they often must resort to demanding things in what is perceived to be an unreasonable, “bitchy” manner. The fact that women have to worry about this at all is of course, a result of differential standards used to evaluate men and women litigators. Many women reported instances of subtle bias from male colleagues, or the appearance of equality “to my face, but not in reality.” Women attorneys today are also experiencing overtly discriminatory remarks and behavior from their male counterparts: “I’ve been told more than once that I had a ‘cute’ argument. I usually win with my cute arguments. These people would never say that to a man. When we have an important new case, it takes having a male partner there to sign them up;” “I have experienced sexist remarks in hiring interviews, one by someone who handles discrimination cases.” “They expect me to do support work and ‘female’ work, especially related to office management, office maintenance, etc.”


and works there to this day, quite a few years later.” By and large, the biggest offenders were opposing counsel. Seventy-four percent of respondents have encountered gender discriminatory or sexually inappropriate behavior from opposing counsel: “Male attorneys think it is okay to comment on my shoes or outfit and ogle my breasts.” “Vast majority & unwanted comments/ behavior from much older, white opposing counsel and older male clients. Irate opposing counsel older white male, once called me a cunt during a heated meet and confer call.”

Over 50% of women attorneys described being treated condescendingly while practicing law, and 42% had received comments about their physical appearance. “In two separate situations when my husband was present, once when moving into my office and another at a firm social event, my husband was presumed to be the attorney (he’s not) and me the little wife.” “The most frequent treatment is related to treating female attorneys in a patronizing way and reducing female attorneys to their looks. I think that there is an especially intense and accepted focus on how female attorneys look.” “I have been called a “pretty little secretary” and been patronized generally by potential clients.” “Comments about my weight that wouldn’t be made to males.” Sizable percentages of respondents had also experienced sexual harassment through sexually inappropriate remarks, comments or jokes at work, sexual teasing, looks or gestures, and unwanted invitations for dates. In 39% of cases, this unwanted behavior came from someone of partner level status. “I was sexually harassed early in my career, not in my current job. I also have dealt with the situation of saying something in meetings and having it overlooked, then when a male says the same thing, it is lauded.” “Early in my career, I was in a firm where there was a great deal of inappropriate conduct, and very condescending treatment towards women.” “I reported the harassment and it was found to be true and supported. However, the harasser continued to work at the firm

Overcoming The Problem These results demonstrate that there are negative aspects of practicing law that women attorneys must deal with on a daily basis that their male counterparts do not. But there are also positive aspects that the average white male attorney will never experience. Women attorneys must realize that they do have considerable power — because we are unique. We have a different set of skills, and a unique arsenal combining focus, drive, emotions, and instinct that male attorneys could never have. We have the ability to see cases differently. And our mere presence at the lecturn in a courtroom instantly captures the jury’s attention because we stand out. What we do with that attention can determine our fates and the outcome of our cases. By defying and exceeding expectations, being confident and reveling in our uniqueness, we can be extraordinarily effective. No one understands this more than successful women trial attorneys. It is something that Randi McGinn writes about in her book, Changing Laws, Saving Lives: How to Take on Corporate Giants and Win. As one of the few women plaintiffs’ lawyers selected for inclusion in the prestigious Inner Circle of Advocates and one of the most successful trial attorneys in the country, she states in her book: Being a woman trial lawyer is an advantage in the courtroom because we are still rare, unexpected and do not “look like lawyers.” So long as you don’t squander the initial advantage of being different by revealing yourself to be just another lawyer for the jurors’ misconception of what lawyers are — (dishonest, tricky, wordy, and pompous), the jury starts off wanting to believe in you. Because here is an important, indisputable fact that gives women attorneys power: Even though the number of women attorneys is disproportionately low, the number of women jurors and clients is not. Simply put, there are more women than men out there. And women respond to other women. The keys to the “power machine” is for women lawyers to learn and perfect the craft of being a great lawyer, while finding and appreciating their own unique voices in order to win — and win big. The Trial Lawyer x 59


Amy Solomon is one such woman who did exactly that. As a well-respected partner at Giradi | Keese, she has risen to the top of her field and served as a past president of CAALA. She states: “I think the lack of women trial lawyers is due to many factors, one of which is a lack of mentors for these women. Early on in my career, I felt like a fish out of water as the only woman in my firm trying cases. At first, it was truly intimidating and I thought it wasn’t for me. But then, I was encouraged to find my voice, to feel comfortable trying cases my way. The result was quite liberating. We need to pull together, to encourage young women that this is a great thing to be a trial lawyer, that we can have an important voice, a seat at the table.” Obviously, our male counterparts have still not yet fully realized the value of women in the legal profession because they have not changed enough to make women attorneys want to stay. They have not accepted them as full equity partners in their firms, promoted them to leadership positions in organizations, or made room for them at the courtroom table. Until they do, the number of women in their ranks will continue to remain stagnant or diminish over time. So as women lawyers, we must help each other to get a seat at the partnership or courtroom table and to realize that this truly can be the greatest job in the world. Women are the largest untapped reservoir of talent in the legal profession today. It is time to put it to good use. _________________________ 60 x The Trial Lawyer

Deborah S. Chang is an attorney with Panish Shea & Boyle LLP in Los Angeles. Her practice has focused on wrongful death, complex torts, catastrophic injuries, and products liability cases for over 25 years. She is licensed in California, Connecticut, and Florida, and has been part of the trial teams that reached record verdicts in numerous jurisdictions. She is a member of the Los Angeles chapter of ABOTA, where she holds the rank of Associate, and serves on its Executive Committee, and is included in the Best Lawyers in America and Southern California Super Lawyers. She serves on the Executive Committee of the CAOC and is the Chairman of its Diversity Committee. In 2014, she was recognized as the CAOC Consumer Attorney of the Year. Sonia Chopra, Ph.D. is a Senior Litigation Consultant with NJP Litigation Consulting with over 18 years of experience in over 400 cases. She has been the jury consultant in many trials resulting in record verdicts in numerous jurisdictions. With a doctoral degree in psychology and law and a passion for research, Dr. Chopra applies current social science theory to a wide variety of legal issues, including gender bias in the legal profession. She assists attorneys in case analysis, damages valuation, storytelling and theme development. She has served on the Board of Directors of the American Society of Trial Consultants and is the General Editor of the trial manual, Jurywork: Systematic Techniques.


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The Summit You Don’t

need To Miss...

Summit Trial Lawyers

LOEWS MIAMI BEACH HOTEL | SOUTH BEACH, FLORIDA

February 5th-8th, 2017 866-665-2852

REGISTER TODAY | NTLSUMMIT.COM

Meet with the Legends!

THE NATIONAL TRIAL LAWYERS

AWARDS LUNCHEON

Monday, February 6 at 12:15-2:00 p.m. Located in Americana 1 & 2

Join us in Miami Florida as we gather for the 6th Annual National Trial Lawyers Awards Luncheon! Come together as we honor the nation’s top trial lawyers from the past and today. Hear words of inspiration from 4x Super Bowl Champion and Hall of Fame Quarterback Joe Montana!

Keynote Speaker

JOE MONTANA

AWARDS & ACHIEVEMENTS THE TRIAL LAWYER HALL OF FAME INDUCTEES

Mark Geragos

Tommy Malone

Joe Jamail

Ted Koskoff

LIFETIME ACHIEVEMENT AWARDS

Morris Dees

CIVIL PLAINTIFF & CRIMINAL DEFENSE

62 x The Trial Lawyer

TRIAL LAWYER OF THE YEAR AWARDS Recipients announced during awards luncheon

F. Lee Bailey


Conference Highlights TUESDAY, FEBRUARY 7, 2017 BOOK SIGNING LUNCH

Mark Lanier, Mike Papantonio, F. Lee Bailey, Michael Waddington and Elizabeth Huntley Located in Americana 3

SUNDAY, FEBRUARY 5, 2017 SUPER BOWL 51 KICK-OFF PARTY

Sponsored by COUNSEL FINANCIAL Open Bar Sponsored by FILEVINE Located in Americana 4 and Sponsor Hall

MONDAY, FEBRUARY 6, 2017 WOMEN’S NETWORKING COCKTAIL RECEPTION Keynote Speaker Elizabeth Huntley Sponsored by ANKURA CONSULTING Located in Poinciana 1

NTL FOR WOMEN’S RIGHTS MEETING Hosted by Gloria Allred & Nathan Goldberg

Open to all attorneys with 5+ years of experience in litigating or settling women’s rights cases Located in Poinciana Ballroom

CRIMINAL DEFENSE

4x Super Bowl Champion COCKTAIL HOUR and Pro by Football Hall of Co-Sponsored Mark Geragos and Mark O’Mara Fame Quarterback Located on 3rd Floor Boardroom Terrace

Joe Montana

PRESIDENT’S COCKTAIL RECEPTION KEYNOTE SPEAKER Sponsored by HMR Funding

Located in Sponsor Hall

FOLLOWED BY CONCERT WITH DON FELDER OF THE EAGLES Sponsored by GIRARDI KEESE Located in Americana 1 & 2

NTL TOP 40 UNDER 40 ANNUAL MEETING & COCKTAIL HOUR Hosted by Jonas Seigel, 2016 President of The National Trial Lawyers Top 40 Under 40 Located in Poinciana 2

Performing LIVE “Hotel California” Don Felder of The Eagles

The Trial Lawyer x 63


LEGENDS OF THE TRIAL BAR AN INTERACTIVE CONVERSATION WITH CRIMINAL DEFENSE AND CIVIL TRIAL LEGENDS

AND MORE....

L ARGEST GATHERING OF THE NATION’S BEST TRIAL L AWYERS 4 DAYS IN SOUTH BEACH, 800+ ATTENDEES, 70+ SPEAKERS AND OVER 2 YEARS’ WORTH OF CLE CREDITS!! 64 x The Trial Lawyer

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The Trial Lawyer x 65


WOMEN TRIAL LAWYERS

A DIVERSITY ISSUE, OR IS A WOMAN REALLY THE BEST PERSON FOR THE JOB? By Kim Adams, Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor, P.A.

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With this year’s election, the issues of gender equality and diversity were more prevalent than ever. Women from every profession spoke up about women’s issues, and the legal profession was at the forefront. There was a huge movement among female lawyers to unify and conquer the importance of gender diversity in our profession. Women decided it was time for the unconscious bias, stereotyping, and assumption about women’s competency in law firms and courtrooms around the country to reverse. Women and men both need opportunity, access, and support to reach the highest levels of achievement in our profession, but historically women receive far less access and meaningful support than their male counterparts. Helpful support is more than lip service that an opportunity is available; it’s creating mentorship and outward acknowledgment that she is best for the job. This year we saw new associates congratulating senior partners for specific accomplishments, and more importantly, senior partners sincerely acknowledging the work of younger lawyers and giving them the reigns to lead the charge. Yes, this year we took strong and confident positions on matters impacting women and made sure we were heard. We used our political and financial influences to start moving what were once seemingly unmovable mountains. After years of being underrepresented, underestimated, and undervalued, women trial lawyers took every opportunity to use their unique skill sets. But, did the voices of so many women make a difference? It certainly seems to be moving in the right direction, at least in the world of product liability law, where for years women have taken a back seat, from working litigations from behind the scenes to now being the voice and faces of important litigations. In the past, it was extremely uncommon for women to be appointed to leadership positions, first chair trials, conduct global settlement discussions, or have control over the big cases as frequently as male coworkers, but times they are a-changing. And, it’s more than the request for gender diversity that is making a difference. Finally, women trial lawyers are actually being recognized by other women and their male counterparts for their specific work on these large product cases. Our results are speaking for themselves; we just needed a platform, access, and opportunity. Woman trial lawyers are strong, resourceful, empathetic, and unfortunately the target market for many under researched and defective products. Women understand the damages the products cause, especially when it comes to women-centered issues. We are major consumers, graduate at the tops of our law school classes, and represent more than half of the audience who will direct the fate of our clients. Proudly, we are moving mountains. Women Are The Target Market It is estimated that women account for more than 85% of all consumer purchases and is impacted by direct-to-

consumer marketing much more frequently than men. It is no secret that BigPharma works a lot harder to sell products than develop new ones. It certainly is not as profitable for a company to develop new products; rather, the real profits come from making minor variations to existing drugs. It has been estimated that for every dollar a pharmaceutical company spends on “basic research,” $19 goes towards promotion and marketing. Women take the brunt of the failures of BigPharma and women trial lawyers understand consumer expectation because we are the major consumer. Sampling Of Product Cases Directly Impacting Women Some of the most profitable drugs and devices for BigPharma are the most dangerous for women. It is certainly not the intention to suggest that women are better for female-centered litigation, no more than men are better for male-centered litigation. It is important, however, that both genders be included, and to point out the benefits to including both genders. And, to that end, no one is more frustrated and invested in discontinuing the practice of using women’s bodies as guinea pigs than women. Manufacturers target common emotions, physical characteristics, and reproductive systems with little regard for the well-being of the consumer. For example, in the Prempro case, hormone replacement therapy (HRT), the risk of breast cancer, stroke, dementia and other severe illnesses were hidden from women for years. The hormone replacement case was a prime example of BigPharma using marketing to convince women that there was an easy fix for common hormonal symptoms, and more importantly convinced the scientific community to continue to use dangerous products and downplay risks. In 2002, the Women’s Health Initiative (WHI) conducted the largest randomized, placebo-controlled trial of menopausal hormone therapy ever performed. The study was stopped early because of its harmful findings. Yet, gynecologists continued to use these dangerous drugs because they did not find the WHI findings convincing. Dr. Adriane Fugh-Berman with Georgetown University Medical Center decided to find out why so many gynecologists doubted the findings of the WHI study. They evaluated 50 articles on the WHI study finding that 64 percent presented the WHI study with pro-hormone promotional language, and that 8 of the 10 targeted authors declared receiving consulting or speaking payments from manufacturers of menopausal hormones. They also uncovered that three of the authors had conflicts of interest and/or recycled sections of text word-for-word (without citation) in different articles. It was estimated that Pfizer had made $2 billion from drug sales and anticipated paying $772 million to help resolve claims. That’s a billion dollar profit. In the Paxil litigation, women and children were The Trial Lawyer x 67


victims of what was likely the biggest marketing ploy in history. BigPharma took full advantage of the public, primarily women, and spent billions to promote the idea of a chemical imbalance (not proven to exist) and the ability to correct that imbalance with a pill. The manufacturers of these drugs made it top priority to create markets and disorders permitting them to continue their assault on women. Paxil’s product director stated “[e]very marketer’s dream is to find an unidentified or unknown market and develop it. That is what we were able to do with social anxiety disorder.” GlaxoSmithKline won five patent extensions over five years to increase its profits by $5 billion dollars by creating new markets or diagnoses for its medication. Eli Lilly was able to get premenstrual dysphoric disorder (PMDD) approved with no empirical evidence of its existence. In the end, the Paxil litigation finally uncovered what the manufacturers knew for 15 years — Paxil caused heart defects in babies during the first trimester of pregnancy. The devastation, judgment, and guilt felt by the women taking these medications was unfathomable and likely best understood by other women. Another example of products directed at women is transvaginal mesh, marketed as a quick and easy fix for incontinence. More than 100,000 women joined in the litigation alleging significant injuries related to mesh erosion, infection, or chronic pain, which often ended their sex life. Women implanted with faulty mesh either experienced multiple surgeries, organ removal, and/or lifelong pain, a risk benefit profile fully understood by women. Similarly, talcum powder was marketed to women for use with feminine hygiene while hiding the warning of deadly ovarian cancer. Some experts estimate that 10–15% of all ovarian cancer cases are related to the use of talcum powder. Sadly, it is estimated that there are 20,000 new cases of ovarian cancer diagnosed each year. The magnitude of the women impacted by these products is unfathomable, and marketing strategy, hygiene routines, and benefit profile easily understood by women. One final example is Essure, which was marketed as an alternative and permanent form of birth control. Since its introduction, tens of thousands of women have reported devastating injuries, including organ removal, chronic and significant pain, excessive bleeding, and severe mood changes, migrated and embedded devices, hundreds of fetal deaths, and even deaths of the user. The warning label for this product has been changed a number of times, and most recently a black boxed warning was added to the label to warn women of the risk. As with other women-centered products, this one should be off the market as the risk and benefit profile weighs heavily on the side of too much risk for women to take. Where Is The Diversity In Leadership? The need for gender diversity in litigation is often on the list of priorities, but what exactly is being accomplished? Professor Russel Pearce at Fordham University, who has studied issues of diversity was quoted in saying that “[Women and minorities] know that they’re not going to get an equal chance if they go to a big firm. It doesn’t mean they’ll get zero chance. It just means 68 x The Trial Lawyer

that they won’t get the same opportunities that a white man will get.” Unfortunately, this is still true in many areas of the country, but with more flexibility, true effort to provide support and opportunity, this realism could be a thing of the past. We have seen the lack of diversity time and time again in mass tort litigations, including in women-centered litigations. For example, in Prempro, HRT litigation discussed above, out of more than 25 leadership appointments, women held only four spots. In the Yaz litigation, where the marketing tactics were arrogant and clearly without any regard for the more than 12,000 women who would allege strokes, death, and other severe injuries related to use of this product, only one woman made the leadership committee of 17. Similarly, in the Zoloft litigation, where women and children alleged injury due to exposure, there were 16 leadership positions, but again only four women made the cut. Although the stats go on and on, a 2014 study made an attempt to analyze gender quality in product liability MDLs. The data indicated that men were appointed lead counsel 11.8 times more often than women from 2000–2004 and close to seven times more often from 2005–2009. Judges Recognize The Need For Gender Diversity Judges have become more outspoken about the need for gender diversity in all cases. In the Mirena litigation, (IUD prescribed to prevent pregnancy), Judge Cathy Seibel urged lawyers to include women among the ranks in their leadership. “I think that’s important.” Still, out of the 16 spots open for leadership, only 6 were women and zero women were lead counsel. In the Flouroquinolone litigation, the judge questioned why no women were on the PEC slate and urged adding one immediately.” In November 2015, Judge Kathryn Vratil appointed 11 female lawyers to a 20-lawyer executive committee overseeing approximately 300 cases in the In re: Ethicon Inc. Power Morcellator Products Liability Litigation. This was the first time women made up the majority of a leadership committee in an MDL proceeding. Finally, on December 9, 2016, Judge Freda Wolfson appointed women as co-lead counsel and as 1/3 of the entire committee in the Talc litigation. Certainly, not all women or men are supportive of the effort to increase gender diversity arguing that gender diversity efforts do not always promote the best person best suited for the job. Respectfully, I would disagree. The bottom line is that without promoting and providing the access for women to get to the table, the ability to truthfully consider the best person for the job is lacking. Where nearly 50% of students graduating law school are female, diversity is critical. Women are dominating the market, targeted and impacted significantly by BigPharma, graduating at the top their class, and over half of our audience. If law firms do not continue to make immediate strides toward becoming more gender diverse and do a better job promoting and accepting gender diversity in their firms, they will run the risk of alienating the next generation of lawyers, and possibly clients. Citations available on request

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DRAINING THE SWAMP RIGHT INTO THE WHITE HOUSE By Nomi Prins

Given his cabinet picks, it’s reasonable to assume that The Donald finds hanging out with anyone who isn’t a billionaire (or at least a multimillionaire) a drag. What would there be to talk about if you left the Machiavellian class and its exploits for the company of the sort of normal folk you can rouse at a rally? In the months since the election here’s what’s clear: crony capitalism, the kind that festers and grows when offered public support in its search for private profits, is the order of the day among Donald Trump’s cabinet picks. Forget his own “conflicts of interest.” Whatever financial, tax, and other policies his administration puts in place, most of his appointees are going to profit like mad from them and, in the end, Trump might not even wind up being the richest member of the crew. It’s already clear (not that it wasn’t before) that Trump’s anti-establishment campaign rhetoric was the biggest scam of his career, one he pulled off perfectly. As the incoming CEO-in-chief, he’s now doing what many presidents have done: doling out power to like-minded friends and associates, loyalists, and — think John F. Kennedy, for instance — possibly family. Here, however, is a major historical difference: the magnitude of Trump’s cronyism is off the charts, even for Washington. Of course, he’s never been a man known for doing small and humble. So his cabinet is already the richest one ever. Estimates of how loaded it will be are almost meaningless at this point, given that we don’t even know Trump’s true wealth (and will likely never see his tax returns). Still, with more billionaires at the doorstep, estimates of the wealth of his new cabinet members and of the president-elect range from my own guesstimate of about $12 billion up to $35 billion. This already reflects at least a quadrupling of the wealth represented by Barack Obama’s cabinet.

70 x The Trial Lawyer

Trump’s version of a political and financial establishment, just forming, will be bound together by certain behavioral patterns born of relationships among those of similar status, background, social position, legacy connections, and an assumed allegiance to a dogma of self-aggrandizement that overshadows everything else. In the realm of politico-financial power and in Trump’s experience and ideology, the one with the most toys always wins. So it’s hardly a surprise that his money- and power-centric cabinet won’t be focused on public service or patriotism or civic duty, but on the consolidation of corporate and private gain at the expense of the citizenry. It’s already obvious that, to Trump, “draining the swamp” means filling it with new layers of golden sludge, similar in color to the decorations that adorn buildings with his name, including the new Trump International Hotel on Pennsylvania Avenue near the White House where foreign diplomats are already flocking to curry favor and even the toilet paper holders in the lobby bathrooms are faux-goldplated. The rarified world of his cabinet choices is certainly a universe away from the struggling working class folks he bamboozled with promises of bringing back American “greatness.” And yet the soaring value of his cabinet should be seen as merely a departure point for our four-year (or more) leap into what is guaranteed to be an abyss of inequality and instability. Forget their wealth. What their business conflicts, relationships, and ideological stances indicate about what they’ll do to America is far more worrisome. And though Trump promised (and tweeted) that he’d be “completely out of business operations,” the possibility of such a full exit for him (or any of his crew) is about as likely as a full reveal of those tax returns.


Trumping History There is, in fact, some historical precedent for a president surrounding himself with such a group of selfinterested power-grabbers, but you’d have to return to Warren G. Harding’s administration in the early 1920s to find it. The “Roaring Twenties” that ended explosively in a stock market collapse in 1929 began, ominously enough, with a presidency filled with similar figures, as well as policies remarkably similar to those now being promised under Trump, including major tax cuts and giveaways for corporations and the deregulation of Wall Street.

A notably weak figure, Harding liberally delegated policymaking to the group of senior Republicans he chose to oversee his administration who were dubbed “the Ohio gang” (though they were not all from Ohio). Scandal soon followed, above all the notorious Teapot Dome incident in which Secretary of the Interior Albert Fall leased petroleum reserves owned by the Navy in Wyoming and California to two private oil companies without competitive bidding, receiving millions of dollars in kickbacks in return. That scandal and the attention it received darkened Harding’s administration. Until the Enron scandal of 2001–2002, it would serve as the

poster child for money (and oil) in politics gone bad. Given Donald Trump’s predisposition for green-lighting pipelines and promoting fossil fuel development, a modern reenactment of Teapot Dome is hardly beyond imagining. Harding’s other main contributions to American history involved two choices he made. He offered businessman Herbert Hoover the job of secretary of commerce and so put him in play to become president in the years just preceding the Great Depression. And in a fashion that now looks Trumpian, he also appointed one of the richest men on Earth, billionaire Andrew Mellon, as his treasury secretary. Mellon, a Pittsburgh


industrialist-financier, was head of the Mellon National Bank; he founded both the Aluminum Company of America (Alcoa), for which he’d be accused of unethical behavior while treasury secretary (as he still owned stock in the company and his brother was a close associate), and the Gulf Oil Company; and with Henry Clay Frick, he cofounded the Union Steel Company. He promptly set to work — and this will sound familiar today — cutting taxes on the wealthy and corporations. At the same time, he essentially left Wall Street free to concoct the shadowy “trusts” that would use borrowed money to purchase collections of shares in companies and real estate, igniting the 1929 stock market crash. After Mellon, who had served three presidents, left Herbert Hoover’s administration, he fell under investigation for unpaid federal taxes and tax-related conflicts of interest. Modernizing Warren G. Within the political-financial establishment, the more things change, the more, it seems, they stay the same. As Trump adjusts to life in Washington with his cabinet picks, several of them already stand out in a Mellon-esque fashion for their staggering wealth, their legal entanglements, and the policies they seem ready to support that sound like eerie throwbacks to the age of Harding. Of course, you can’t tell the players without a scorecard, so here are the top four of the moment (with more on the way). Secretary of Commerce Wilbur Ross (net worth $2.9 billion) Shades of Andrew Mellon, Ross, a registered Democrat until Trump scooped him up, made his fortune as a corporate vulture (sporting the nickname “the king of bankruptcy”). He was notorious for devouring the carcasses of dying companies, spitting them out, and pocketing the profits. He bought bankrupt steel companies, while moving $6.4 billion of their employee pension benefits to the rescue fund of the government’s Pension Benefit Guaranty Corporation so he could make company financials look better. In the early 2000s, 72 x The Trial Lawyer

his steel industry deals bagged him an impressive $267 million. Stripped of health-care benefits, retired steelworkers at his companies didn’t fare as well. Trump, of course, has promised the world to the sinking coal industry and out-of-work coal miners. His new commerce secretary, however, owned a coal mine in West Virginia, notoriously cited for hundreds of violations, where 12 miners subsequently died in an explosion. Ross also made money running Rothschild Inc.’s bankruptcyrestructuring group for nearly two-anda-half decades. A member (and once leader) of a secret Wall Street fraternity, Kappa Beta Phi, in 2014 he remarked that “the one percent is being picked on for political reasons.” He has an art collection valued conservatively at $150 million, or 3,000 times the average American’s income of $51,000. In addition, he happens to own a Florida estate only miles down the road from Trump’s Mar-a-Lago private club. While Trump has lambasted China for stealing American jobs, Ross (like Trump) has made money from China. In 2010, one of that country’s stateowned enterprises, China Investment Corporation, put $500 million in Ross’s private equity fund, WL Ross & Company. Ross has not disclosed whether these investments remain in his fund, though he told the New York Post that if Trump believes there are conflicts of interest among any of his investments, he would divest himself of them. In August 2016, his company had to pay a $2.3 million fine to the Securities and Exchange Commission to settle charges for not properly disclosing $10.4 million in management fees charged to his investors in the decade leading up to 2011. In October, Ross assured Bloomberg that China will continue to be an investment opportunity. As secretary of commerce, the world will become his personal business venture and boardroom, while U.S. taxpayers will be his funders. He is an ardent crusader for corporate tax cuts (wanting to slash them from 35% to 15%). As head of the commerce department, the man the

Economist dubbed “Mr. Protectionism” in 2004 will be in charge of any protectionist policies the administration implements. Secretary of Education Betsy DeVos (family wealth $5.1 billion) DeVos, the daughter of a billionaire and daughter-in-law of the cofounder of the multilevel marketing empire Amway, has had no actual experience with public schools. Unlike most of the rest of America (myself included), she never attended a public school, nor have any of her children. (Neither did Trump.) But she and her family have excelled at the arithmetic of campaign contributions. They are estimated to have contributed at least $200 million to shaping the conservative movement and various right-wing causes over the last halfcentury. As she wrote in the Capitol Hill newspaper Roll Call in 1997, “My family is the biggest contributor of soft money to the Republican National Committee.” That trend only continued in the years that followed. According to the Center for Responsive Politics, since 1989 she and her relatives have given at least $20.2 million to Republican candidates, party committees, PACs, and super PACs. The center further noted that, “Betsy herself, along with her husband, Dick DeVos, Jr., has contributed more than $7.7 million to federal candidates, committees, and parties since 1990, including almost $4.8 million to super PACs.” Her brother, ex-Navy SEAL Erik Prince, founded the controversial private security contractor Blackwater (now known as Academi). He also made two considerable donations to Make America Number 1, a super PAC that first backed Senator Ted Cruz and then Trump. So whatever you do, don’t expect Betsy De Vos’s help in allocating additional federal funds to elevate the education of citizens who actually do attend public schools, or rather what Donald Trump now likes to call “failing government schools.” Instead, she’s undoubtedly going to promote privatizing school voucher programs and charter schools across the country and let those failing government schools go down the tubes as part of a Republican war on public education.


Transportation Secretary Elaine Chao (net worth $25 million) As the daughter of a wealthy shipping magnate, a former labor secretary for George W. Bush, and the wife of Senate Majority Leader Mitch McConnell, Chao’s establishment connections are overwhelming. They include board positions at Rupert Murdoch’s News Corp and at Wells Fargo Bank. While Chao was on its board, Wells Fargo scammed its customers to the tune of $2.4 million, and incurred billions of dollars of fines for other crimes. She was silent when its former CEO John Stumpf resigned in a blaze of contriteness. In 2008, Chao ranked 8th in Bush’s executive branch in terms of net worth at $16.9 million. In 2009, Politico reported that, in memory of her mother who passed away in 2007, she and her husband received a “personal gift” from the Chao family worth between $5 million and $25 million. In 2014, the Center for Responsive Politics ranked McConnell, with an estimated net worth somewhere around $22 million, as the 11th richest senator. As with all things wealth related, the truth is a moving target but the one thing Chao’s not (which may make her a rarity in this cabinet) is a billionaire. Treasury Secretary Steven Mnuchin (net worth between $46 million and $1 billion) Hedge fund mogul and Hollywood producer Steven Mnuchin is the third installment on Goldman Sachs’s claim to own the position of Treasury secretary. In fact, when it comes to the stewardship of the country’s economy, Goldman continues to reign supreme. Bill Clinton appointed the company’s former cochairman Robert Rubin to Treasury in gratitude for his ability to bestow on him Wall Street cred and the contributions that went with it. George W. Bush appointed former Goldman Sachs Chairman and CEO Hank Paulson as his final Treasury secretary, just in time for the “too big to fail” economic meltdown of 2007–2008. Now, Trump, who swore he’d drain “the swamp” in Washington, is carrying on the tradition. The difference? While Rubin and Paulson pushed for the

deregulation of the financial industry that led to the Great Recession and then used federal funds to bail out their friends, Mnuchin, who spent 17 years with Goldman Sachs, eventually made an even bigger fortune by being on the predatory receiving end of federal support while scarfing up a failed bank. In 2008, the Federal Deposit Insurance Corporation (FDIC), formed in 1934 to insure the deposits of citizens at commercial banks, closed 25 banks, including the Pasadena-based IndyMac Bank. In early January 2009, the FDIC agreed to sell failed lender IndyMac to IMB HoldCo LLC, a company owned by a pack of private equity investors led by former Goldman Sachs partner Mnuchin of Dune Capital Management LP for about $13.9 billion. (They only had to put up $1.3 billion in cash for it, however.) When the deal closed on March 19, 2009, IMB formed a new federally chartered savings bank, OneWest Bank (also run by Mnuchin), to complete the purchase. The FDIC took a $10.7 billion loss in the process. OneWest then set about foreclosing on IndyMac’s properties, the cost of which was fronted by the FDIC, as was most of the loss that was incurred from hemorrhaging mortgages. In other words, the government backed Mnuchin’s private deal big time and so helped give him his nickname, the “foreclosure king,” as he became an even wealthier man. By October 2011, protesters were marching outside Mnuchin’s Los Angeles mansion with “Stop taking our homes” signs. OneWest soon became mired in lawsuits and on multiple occasions settled for millions of dollars. Nonetheless, Mnuchin sold the bank for a cool $3.4 billion in August 2015. Shades of the president-elect, he also left another beleaguered company, Relativity Media, where he had been co-chairman, two months before it filed for Chapter 11 bankruptcy in 2015. Mnuchin’s policy priorities include an overhaul of the federal tax code (aimed mainly at helping his elite buddies), financial deregulation (including making the Dodd-Frank Act of 2010 significantly more lenient for hedge funds), and a

review of existing trade agreements. He has indicated no support for reinstating the Glass-Steagall Act of 1933, which separated commercial banks that held citizens’ deposits and loans from the speculative practices of investment banks until it was repealed in 1999 under the Clinton administration. Gilded Government Hillary Clinton certainly cashed in big time on her Wall Street connections during her career and her presidential campaign. And yet her approach already seems modest compared to Trump’s new open-door policy to any billionaire willing to come on board his ship. His new incarnation of the old establishment largely consists of billionaires and multimillionaires with less than appetizing nicknames from their previous predatory careers. They favor government support for their private gain as well as deregulation, several of them having already specialized in making money off the collateral damage from such policies. Trump offered Americans this promise: “I’m going to surround myself only with the best and most serious people.” In his world, best means rich, and serious means seriously shielded from the way much of the rest of the country lives. Once upon a time, I, too, worked for Goldman Sachs. I left in 2002, the same year that Steven Mnuchin did. I did not go on to construct deals that hurt citizens. He did. Public spirit is a choice. Aspiring to run government as a business (something President Calvin Coolidge tried out in the 1920s with dismal results for America), Trump is now surrounding himself with a crew of crony capitalists who understand boardroom speak, but have nothing in common with most Americans. So give him credit: his administration is already one of the great political bait-and-switch productions in our history and it hasn’t even begun. Count on one thing: in his presidency he’ll only double down on that “promise.”


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The “Greed Is Good” Experiment Has Failed By Thom Hartmann

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Another day, another example of the disastrous effect Reaganomics has had on our country’s business culture. Ever since his bank was fined $185 million for illegally opening millions of accounts in its customers’ names to help boost profits, Wells Fargo CEO John Stumpf has insisted that he only discovered what was going on in 2013. That’s what he said when testifying before Congress, and it’s what he’s said in all public remarks on the scandal. There’s only one problem: John Stumpf appears to be lying. The New York Times reports that Wells Fargo employees began complaining to their superiors about the illegal practices they were seeing as far back as 2005, eight years before John Stumpf said he heard about them. What’s even more damning is that many of these complaints were apparently addressed to John G. Stumpf himself. As the Times reports: “For years … identical complaints from Wells Fargo workers flowed into the bank’s internal ethics hotline, its human resources department, and individual managers and supervisors. In at least two cases in 2011, employees wrote letters directly to Mr. Stumpf … to describe the illegal activities they had witnessed.” And what happened to these brave Wells Fargo employees after they blew the whistle on what they were seeing? They were punished. Some were outright fired, others were accused of ethics violations themselves, and still others were fired and then rehired again for lower pay. Meanwhile, the culture of greed at the company continued to fester. According to one Wells Fargo employee who testified before the California legislature, the pressure to boost sales was so great that he and his co-workers were actually denied bathroom breaks if they didn’t meet expectations. You really couldn’t ask for a better example of how much damage Reaganomics has done to the business culture in this country. There’s nothing wrong with wanting to make money, but when President Ronald Reagan and his free-market cronies came to town in the 1980s, something changed in US corporate culture. Businesses were no longer just encouraged to make money — they were encouraged to make as much money by any means possible, no matter what the cost. This new way of thinking was captured brilliantly in Oliver Stone’s film Wall Street when Michael Douglas’ character,

Gordon Gekko, tells an audience of stockholders that “greed is good.” This point of view was shared by President Reagan, which is why he and the Republican Party did everything they could to reward greed in our economy. It’s why Reagan functionally stopped enforcing the Sherman Act — so that big companies could merge with other big companies to create giant monopolies, kicking off the “merger mania.” It’s why he dropped the top marginal tax rate for the superrich from 70 percent down to 28 percent over the course of his administration. It’s also why he changed the tax code, so that CEOs were purely incentivized by greed to increase share prices and dividends. Tax and accounting rules were both changed in the 1980s to turn CEOs into shareholders more than employees. This was done by converting huge chunks of their compensation from payroll into stocks and stock options. The idea here was to connect CEO pay with the company’s performance and therefore encourage efficiency in business practices and create a lot of money for everyone involved. What it actually did, though, was give corporate executives an incentive to cut as many corners as possible to make as much money as possible, everything and everyone else be damned. There is a direct line from this to what we’re seeing right now with Wells Fargo. John Stumpf and the other Wells Fargo higher-ups didn’t apparently ignore complaints from employees about the illegal goings-on at their company because they were lazy and didn’t want to deal with the problem. They ignored them because, thanks to Reagan, doing so was in their best interest as shareholders. So if we really want to stop other banks from doing what Wells Fargo did, we need to repudiate Reaganomics and the tax structure and business rules that allow it flourish. Start enforcing the Sherman Act and break up the giant corporate monopolies. Raise the top tax rate. And eliminate the corporate deduction for compensating executives with stock and stock options. If they want stock in their own companies, they can buy it just like you and me. Only then we will stop greed from dominating our economy and distorting our business culture. The Trial Lawyer x 77


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WE HAVE BEEN GIVEN THE CHANCE TO REBUILD THE DEMOCRATIC PARTY Don’t Waste This Opportunity By Richard Eskow

F

or the first time in a quarter-century, we’re about to see a vacuum of political and intellectual leadership in the Democratic Party. An entire generation of leaders — including Barack Obama, Joe Biden, and Bill and Hillary Clinton — will be leaving the political stage. With them will go an entire infrastructure of policy advisers, political strategists, associates, friends, and hangers-on. The party will have to remake itself. The question is, as what? “I think there’s going to be a fight in the Democratic Party about which direction to go in,” political consultant Joe Trippi told the Washington Post. “That’s healthy for the party long-term, but it’s going to be painful over the next few years.” Painful for some, perhaps, but not for everybody. Some people are likely to be energized by the opportunity to inject new blood into an ossified party leadership. These are hurtful times, to be sure. The Trump years are going to be grim — very grim — for millions of people. Democratic voters are saying goodbye to leaders they’ve known and liked for many years. Democratic politicians are in the minority in most state legislatures, only hold 18 governors’ seats, and haven’t had so little power in Washington since 1928. 80 x The Trial Lawyer


But the political purgatory of 1928 was followed by the election of 1932, when Democrats gained control of all three branches of government. They took more than 100 House seats and 12 Senate seats from the GOP, and Franklin Delano Roosevelt became the most transformative president of the twentieth century. The parallels aren’t exact. The Republicans’ pre-1932 victories were due primarily to that era’s prosperity, and the Democrats’ win to the shock of the Great Depression. It would be both ghoulish and foolish to hope for a repeat of that scenario. These aren’t prosperous times (although a major Trump recession or depression is certainly possible). But the 1928–32 election cycle showed us how much can change in only four years. It doesn’t always take a catastrophe to reverse political fortunes. Conservatism was at an all-time low

in 1964. Post-war Democrats and Republicans built a consensus around liberal ideas on issues like infrastructure spending (Eisenhower built the federal highway system), unionization, and Social Security. Barry Goldwater’s 1964 defeat was widely considered conservatism’s death knell. Four years later Richard Nixon won the presidency with a culturally conservative message. Sixteen years later Ronald Reagan became the 20th century’s secondmost transformative president, ushering in a new era of economic conservativism. Most political observers in 1964 would have advised Republicans to stick to a center-left agenda. Instead, conservatives crafted a narrative that — although profoundly wrong on the issues — transformed politics by speaking to many voters’ economic, moral, and social concerns. The Trial Lawyer x 81


Now it’s the left’s turn. Polls already show that the public largely supports the left’s ideas on Social Security expansion, Medicare, the minimum wage, Wall Street, taxing the wealthy, and other key issues. But too often the Democratic Party has been constrained by the equivocation of its leaders, and by an intellectual class reluctant to embrace new ideas. The Affordable Care Act is a case in point. It has helped millions, and its repeal would be a tragedy. But, as Sen. Elizabeth Warren reportedly said, “Let’s be honest: It’s not bold. It’s not transformative.” Warren continued: “I’m okay taking half a loaf if our message was ‘Here’s half, now let’s go get the rest.’” Instead, voters struggling with sky-high medical costs found themselves being lectured on why they should feel grateful instead. And when Bernie Sanders electrified audiences by calling for Medicare for All - which has been successfully implemented in every other developed country on Earth, in one form or another - most of the Democratic intellectual class insisted it couldn’t be done, even as its own predictions for the ACA were proving false. Sen. Warren also reportedly said that Democrats had become too close to corporate interests and too distant from working people. “That’s where we failed,” she is quoted as saying, “not in our messaging, but in our ideology.” That’s exactly right. No amount of ginned-up speechwriter phrases (“trumped up trickle-down”) can sell voters on an agenda that doesn’t speak to their needs, or on Rube Goldberg-ish policy prescriptions that mistakenly rely 82 x The Trial Lawyer

on the power of “markets” and “competition.” “Ideology” is not a dirty word, although a lot of people in the Democrats’ outgoing political and intellectual classes tried to make it one. They claimed to be technocrats, free of any ideological taint. But that was nothing more than a smokescreen for their own biases (and undoubtedly, in some cases, for the interests of their funders). The new Democratic Party will need to broaden its intellectual horizons. And it will need to draw energy and inspiration from a growing wave of independent movements: for racial justice, economic change, rational foreign policy, renewal of democracy, and broad social equality. This is a time to think big. It’s time to comprehensively address climate change, which will get even worse under Trump; to work on making Medicare available to every American; to address the nation’s growing retirement crisis, by increasing Social Security’s benefits; to provide tuitionfree higher education; to guarantee jobs for everyone willing to work; and to begin addressing the other great challenges of the 21st century. The next four years will be painful, especially for the most vulnerable among us. But the struggle for a better future needn’t be. In fact, many people have already found that it gives meaning and purpose to their lives. The Bernie Sanders campaign reminded us that people will fight for a cause. The Democratic Party needs to become a cause more people want to fight for. In the midst of defeat, it has that chance.


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


s

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

Ben Brafman against collateral trustee, Acquittal in Puff Daddy and Peter Gatien trials and dismissal of all charges in Dominique Strauss Kahn (DSK) case. Fantasy job(s): Professional Baseball player, Movie Star, Late Night Talk Show Host, Rabbinic Scholar.  Guilty pleasure: Way too smart to answer. 

First job ever: 6 years old. Waiter’s assistant in Summer Beach Hotel, making 50 cents a meal helping set tables. Proudest moment as a trial lawyer: Too many to pick just one. Maybe when jury asked if they could hear my Summation again! Attribute my success to: Bone crunching hard work and a lot of good fortune. Been blessed! Notable Verdict or Settlement: 70 million dollar Verdict in a civil case

What I like to do in my time off: Read, exercise, hang out with my family attend sporting events and do my homework, which I hate but trial lawyers “always” have homework. One word that describes me: Must be two words. TOUGH and GENTLE What keeps you awake at night? Worrying about my children and grandchildren and replaying all of the many tough decisions I must make every day that impact on so many other people.

What paper do you generally read daily? New York Times, Wall Street Journal New York Post. What is your advice for a young attorney? Work hard and then harder. There are no shortcuts and if you choose Criminal Law, be prepared for a very tough grind every day.   How do you relax? Read, workout, take long steams and behave like a child surrounded by grandchildren! What was your most embarrassing moment in life? Much too embarrassing to share with all of you! Pretty, pretty embarrassing. What do you like most about your profession? Every once in awhile my work makes a difference in the quality of life that someone else and their family get to enjoy! When that happens, all the aggravation and hard work is worth it!

The Trial Lawyer x 85


Joey M. McCall 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 of bias and undue influence, and to protect the American right of trial by jury!

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

First Job Ever: The Gap. I was 15 and I primarily worked on the floor, constantly folding clothes that were in turn constantly messed up by shoppers. The never-ending battle of retail. Proudest Moment as a Trial Lawyer: I think my proudest moment as a trial lawyer was immediately following our successful defense of a college football player by the name of Dalvin Cook. When Dalvin spoke to the media for the first time following the trial, and asked if Dalvin was ever worried that the allegations that were made against him previously were going to result in him never playing college football again, Dalvin said, “I wasn’t worried because I knew I was innocent and I have the best attorneys in the world.” Dalvin was referring to one of my law partners, Ricky Patel, and I. I never could have imagined in law school that a 1L with no lawyers in his family, would be revered by a client with such high regard. It is truly a humbling moment when I reflect back on it. Attribute my Success to: First and foremost I attribute my success to God because without God nothing in my life would be possible. God is the Alpha and the Omega, and is the sole provider for everyone and everything of value that I have in my life. God has blessed me with a nurturing grandmother who supported me with anything I needed throughout law school, a wise mother who is the voice of reason and keeps me sane when things get a little bit crazy and a strong wife who always reminds me to keep my eye on the prize, despite the setbacks I may encounter! With God and a great support system, what else do you need!?

Notable Verdict or Settlement: I am not sure what factors come into play in determining whether a verdict is notable or not, but one case that comes to mind is when we successfully defended another college football player by the name of Mark Walton. I have never seen a case that was so full of holes, contained blatant inconsistencies, and did not fit what was being said in the media by the local authorities, about this young man. His character and reputation was being unjustly damaged on almost a daily basis. Mark was facing a potential indefinite suspension and his future had already been counted out by a multitude of people as a result of the blatantly false allegations against him. Nevertheless, we challenged every allegation and we did our own investigation to uncover every misrepresented statement or fact. In the end, not only were all charges dismissed on the morning of trial, but the police officers involved are currently under investigation by the Florida Department of Law Enforcement due to multiple violations that we believe were committed prior to and leading up to Mark’s arrest. What I like to do in my time off: While in my spare time I can often be found spending time with my family or close friends at dinner, get together, or just having coffee, there is an equally good chance that you can find me binge watching a Netflix original series. One word that describes me: Survivor How do you relax? I ambitiously try to do yoga twice a week and I get weekly massages in order to reduce stress.


TRAVELINGTRIALLAWYER

MARK O’MARA and IRELAND By Cathy Deloney Corbo

Question: You are an accomplished criminal defense attorney and the lead in very high-profile cases with a lot of media attention. As a result of the controversial cases and your composed camera experience, CNN hires you to be its legal analyst. Where do you spend your favorite vacation getaway? Answer: For Traveling Trial Lawyer Mark O’Mara and wife Jen, Ireland is by far their favorite vacation destination spot. “Ireland, first and foremost, is where Jen and I married September 11, 2004. We were accompanied by a party of 35 family and friends who joined us at the Longueville House in Mallow,” Mark begins. “While we were a bit worried at first since we picked it sight unseen from the Internet, it turned out to be a magical setting and was a wonderful memory filled with celebration.” The Longueville House is a four-star hotel on a 500-acre estate. He continues, “Following a centuries old tradition, I

searched through the Irish country side to locate (and cut down) the perfect hickory branch for the ceremony. It also seems to be tradition that angel’s tears visit us (read that as rain) during the vows, so there is a great picture of Jen hiking up her wedding dress running indoors where we finished the fun.” Mark started his career as a prosecutor for the Florida State Attorney’s office but eventually crossed to the other side of the courtroom serving as a defense attorney. This career move enhanced his knowledge and skills of how to defend because The Trial Lawyer x 87


of knowing how to prosecute. As a trial consultant, Mark helps other lawyers perform in trials with complicated legal issues and intense media scrutiny. No stranger to high-profile cases and TV cameras, he first gained notoriety in Florida for defending a man who killed a woman during a high-speed chase which led him to being the legal commentator during the Casey Anthony murder trial. While successfully leading the high-profile legal defense of George Zimmerman, Mark received acclaim for his even-handed management of the controversial case. Mark is using his voice contributing to the national conversation about race, guns, self-defense, the media, the criminal justice system and he frequently speaks on these topics. “We repeated our vows ten years later on September 11, 2014. We had a party of 30 people coming back to Longueville House for another friends and fun-filled weekend. Of course, a conversation about that weekend can’t be complete without mentioning the few very worthwhile hours on the morning of our renewal vows at Jameson Distillery in Cork. I guess it’s also probably a tradition that the bride has a few shots of the best Irish whiskey in her when she gets married or re-married. At least it is now,” Mark jokes. Mark shares, “It is almost impossible to pick a favorite place within the country because it is so beautiful, the countryside so varied and the individual places so enchanting. We love the entire Ring of Kerry (the Southwest coast), particularly Parknasilla Resort just outside of Killarney and the Dingle peninsula. It is the most beautiful and scenic landscape I have ever driven through.” Mark is a member of the Executive Committee of The National Trial Lawyers Top 100, president of Criminal Defense Trial Lawyers Association, and a Trial Lawyers Summit Conference committee member. Mark is an advocate for change in state and national laws that lead to the over prosecution of American citizens. He founded a non-profit organization called Justice Outreach, designed to identify and fix problems with the justice system. He continues, “While most people don’t think of Ireland as having great food, the entire coastline is dotted with picturesque little towns full of phenomenal seafood restaurants. Once you get to the interior of the country, the fare changes to the best beef and lamb you could imagine. Just west of Waterford is

one of Ireland’s best kept secrets: the Cliff House, it is a stunning hide-away on the Southern coast and the only difficulty is determining if the views are the best thing about it or the Michelin-rated restaurant. It is on our list for a return visit as soon as we can break away.” Mark expands on Ireland, “For more of a cosmopolitan flair, Dublin is the place to go. Some of our favorite memories are walking down the River Liffey; wandering through the Temple Bar district; visiting Trinity College to see the ancient books of Kells; relaxing on St. George’s Green and going to St. Patrick’s Cathedral (the original) to stop by Jonathon Swift’s grave.” Mark built a successful practice by being such a workaholic, but eventually he met the love of his life and they married when Mark was in his forties. He is so grateful for the support Jen gives him. Mark describes his appreciation of Ireland, “From the Cliffs of Moher, to the Aran islands, to the barren lands north of Connemara, the countryside is almost difficult to describe as words fail to adequately present how beautiful and varied the shades of green of the landscape and the hues of blue at the shore are. We have thousands of pictures but one visit tells a much more vibrant story of the Emerald Isle. Without question, and far beyond all the sights, great food and fun, the people of Ireland are its greatest asset. I never realized what a connection I have with my heritage and ancestry until I spent time there. The sense of humor, friendliness, sense of inclusion and enjoyment of life is strangely comforting and comfortable.” This Traveling Trial Lawyer highly recommends, “If you ever want a completely relaxing enjoyable vacation with untold beauty in the countryside, great food and warm friendly people, visit our Ireland.”

88 x The Trial Lawyer

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The Trial Lawyer x 89

11/30/16 12:02 PM


RAISINGTHEBAR

Eric Holland A Missouri federal judge remanded an Essure injury case to St. Louis Circuit Court on Dec. 2 — ruling against defendant Bayer Corp.’s motion to dismiss based on federal question jurisdiction and diversity jurisdiction. Judge Henry E. Autrey of the U.S. District Court for the Eastern District of Missouri ruled in favor of 32 women, who filed suit in March in St. Louis against Bayer — the manufacturer of Essure — for serious and permanent injuries as a result of being implanted with the alleged dangerous and defective medical device. The suit was filed by St. Louis attorney and National Trial Lawyers member Eric Holland and Louisiana-based law firms Unglesby + Williams and Baggett, McCall, Burgess, Watson & Gaughan. In his ruling, Judge Autrey asserts, “The Court finds that the federal issues raised in plaintiffs’ complaint are not substantial, and accepting federal jurisdiction would disrupt the federalstate balance contemplated by Congress.” Essure, which is currently still on the market, is advertised and sold as 90 x The Trial Lawyer

a permanent birth control device that consists of two metal coils, which is implanted into a woman’s fallopian tubes. Essure has been issued to approximately 750,000 women globally, according to Bayer. Earlier this year, the FDA ordered Bayer to strengthen its Essure warning label by adding a “black box warning” W. Mark Lanier Wayne Fisher to the label so that patients may have a better understanding of the risks and potential health problems associated with the device. The new warning label, which was approved in November, better addresses the risks of device migration, organ perforation, allergic reactions, persistent pain, and the fact that surgery will be required if the device is to be removed for any reason. Additionally, the FDA is now requiring Bayer to include Richard J. Arsenault Khaldoun Baghdadi a “patient-decision checklist,” which must be received and signed by each patient prior to undergoing the Essure Simmons Hanly Conroy, one of the procedure. The checklist summarizes key nation’s largest mass torts firms, is pleased information regarding the use, safety, to announce that six plaintiffs have won and effectiveness of the device, and also a staggering $1 billion Texas federal addresses the risks and health problems jury verdict in the third bellwether trial that are now associated with the device. involving the faulty DePuy Pinnacle metal-on-metal hip replacement devices manufactured by Johnson & Johnson (J&J). The jurors deliberated for less than a day. The plaintiffs convinced the jury in the U.S. District Court for the Northern District of Texas Dallas Division that J&J sidestepped standard regulatory review and misled doctors to believe that the design of the market-leading DePuy Pinnacle device was safe. The jury awarded more than $1 billion punitive damages and nearly $40 million compensatory damages to the 6 patients who required “revision surgeries” following implant of the faulty artificial hip systems, which have not been recalled.  “This is a significant victory for


the plaintiffs, who have suffered major injuries caused by these devices,” said Jayne Conroy, a shareholder at Simmons Hanly Conroy and co-counsel for the plaintiffs as a member of the Plaintiffs’ Executive Committee for the DePuy Pinnacle multidistrict litigation (MDL). One of the key findings in the plaintiffs’ successful case was evidence that J&J promoted the DePuy device aggressively, including through kickback payments to surgeons, even though the company knew the device was riskier than alternative devices. Also, DuPuy was able to sell a particular version of the Pinnacle hip system — the Ultamet variety, which had a metal socket liner instead of a polyethylene or ceramic liner — without significant testing because it was similar to a variety that predated 1976 regulations mandating premarket review. According to the plaintiffs’ case, the success rate for the DePuy Pinnacle metal-on-metal implants was only 53 percent after 11 years.  “The evidence presented in the testimony against J&J told the deeper story of how the science was manipulated in order to sell the product,” Conroy added.  The trial, which began Oct. 3, dwarfed the result of the second bellwether trial involving the DePuy Pinnacle devices that awarded $502 million to five other Texas plaintiffs in March 2016. Although that earlier award was reduced to about $150 million under Texas law, today’s verdict is governed by California law and won’t be subject to a punitive damages cap.  Both verdicts could be significant influencers for a possible settlement of remaining plaintiffs’ complaints, which all claim the implants were defective and caused metal debris to enter into patients’ bloodstreams, resulting in severe injuries and sometimes leading to revision surgery. In early November 2016, U.S. District Judge Ed Kinkeade selected 10 additional cases for the next bellwether trial. Kinkeade oversees the DePuy Pinnacle MDL that includes more than 8,500 plaintiffs nationwide.  The plaintiffs and cases that were decided today are: Marvin Andrews (Cause No. 3:15-cv-03484-K), Kathleen

Davis (Cause No. 3:15-cv-01767-K), Rosa Metzler (Cause No. 3:12-cv02066-K), Judith Rodriguez (Cause No. 3:13-cv-3938-K), Lisa Standerfer (Cause No. 3:14-cv-01730-K) and Michael Weiser (Cause No. 3:13-cv-03631-K). In addition to Conroy, the lead trial team representing the plaintiffs included National Trial Lawyers member W. Mark Lanier of The Lanier Law Firm, National Trial Lawyers member Wayne Fisher of Fisher Boyd Johnson & Huguenard LLP, National Trial Lawyers member Richard J. Arsenault of Neblett Beard & Arsenault, and National Trial Lawyers member Khaldoun Baghdadi of Walkup Melodia Kelly & Schoenberger.

Michael Pasternak After 10 years of litigation, a defendant finally paid up after backing out of a deal that led to a lawsuit. The case stems from a 1998 agreement between Cranpark, formerly a Youngstown area asphalt contractor and the defendant, Rogers Group, one of the largest producers/suppliers of aggregate in the country based in Nashville, Tennessee. The two parties agreed to join forces and create a rail-fed asphalt/concrete supply yard in Youngstown, Ohio. With complete belief that the deal was going forward, Cranpark incurred millions of dollars in capital costs and changed

its existing model. After Cranpark put all the necessary pieces in place, Rogers backed out of the deal. Rogers’ breach caused Cranpark to hemorrhage money, culminating in a forced sale of the business at a significant loss. Cranpark, a once profitable company, in business since the late 1970’s, was destroyed. In 2004 Cranpark filed its lawsuit in the federal District Court of Ohio Northern District, Eastern Division. After years of litigation and discovery battles, Rogers Group filed a Motion for Summary Judgment, which Magistrate Judge George Limbert of the Federal District Court in Youngstown granted in 2010. Cranpark appealed to the 6th Circuit Court of Appeals, which overturned the trial court’s decision, and remanded the case for trial. Additional discovery and motion practice ensued. Finally, the case was set to be presented to a jury in Youngstown, Ohio in November 2013. As trial approached, Rogers made it clear that no settlement offer would come. National Trial Lawyers member Michael Pasternak and Jon Yarger of Cleveland Ohio tried the case on behalf of Cranpark. Harry Cornett and Tom Baker of Tucker Ellis, Cleveland, tried the case on behalf of Rogers Group. On November 22, 2013 the jury returned a unanimous verdict of $15,600,000 on Cranpark’s claim of promissory estoppel. Cranpark immediate moved for prejudgment interest. Rogers then hired the Cleveland firm of Jones Day that prepared a slew of post-trial motions to have the verdict tossed out, or in the alternative, have the verdict reduced. The trial judge granted Rogers’ motion to dismiss the claim. The defendant’s motion was premised on the argument that our client did not have Article III standing. The jury verdict was erased. Cranpark’s trial team then added David Mills to lead the appeal to the 6th Circuit. In April 2016, in a unanimous decision, the 6th Circuit reinstated the verdict and awarded prejudgment interest. Rogers filed a motion for reconsideration and requested En Banc review, both of which were denied. The 6th Circuit ordered the case remanded to determine the amount of The Trial Lawyer x 91


the prejudgment interest. Rogers began work on a Writ of Certiorari to the U.S. Supreme Court and hired former U.S. Solicitor General Paul Clement to spearhead that effort. Consistent with the 6th Circuit’s mandate, the trial court scheduled a hearing on prejudgment interest. The hearing turned into a mediation, which resulted in the case resolving. After over 10 years of litigation and almost 18 years since the deal was first signed, Rogers agreed to pay Cranpark the $15,600,000 verdict and pay an additional $8,400,000 in interest, totaling $24,000,000. The resolution was a complete vindication for Cranpark and bittersweet for Cranpark’s trial team. Cranpark attorney Jon Yarger, who had been with the case for over 10 years, died suddenly in August of 2015. Jon died before the he could see the final result of his dedication, devotion and superior work. A jury returned a record verdict in Cook County Circuit Court in October for injuries suffered in 2008 by a 26-year-old Chicago woman during a routine surgical procedure while she was a patient at Northwestern Memorial Hospital in Chicago. The jury awarded the Plaintiff, Veranda Williams, $8.7 million in damages for the injuries she suffered during a diagnostic laparoscopy performed by a gynecology resident at Northwestern Memorial Hospital in April, 2008. The case was tried before Judge Debra Dooling over the course of five days and the jury deliberated three hours before reaching its verdict.

92 x The Trial Lawyer

Brian Hurst On April 24, 2008, Veranda Williams was admitted to Northwestern Memorial Hospital (“Northwestern”) with complaints of periodic pelvic pain. Ms. Williams was seen by Dr. Seema Venkatachalam, an attending Obstetrician/Gynecologist on staff at Northwestern. An exploratory laparoscopy was scheduled to help determine what might be causing her pain. An exploratory laparoscopy is a minimally invasive gynecologic surgical procedure utilizing a scope through a small incision in the belly button. The procedure commenced the following day, April 25, 2008. Dr. Irene Moy, who was in the last months of her training, performed the procedure under the supervision of Dr. Venkatachalam. During insertion of the trocar, the instrument used to gain access into the abdomen, the right common iliac artery and vein were lacerated and an emergency surgery to repair the major vascular injury was performed by a team of Northwestern physicians. Ms. Williams lost nearly 8,000ccs of blood, twice the amount of her normal blood volume and required a second emergent surgery while still a patient in the ICU. She required rehabilitative care at The Rehabilitation Institute of Chicago after discharge, lost her job at a local aerospace manufacturer and now suffers from significant abdominal adhesive disease which causes her chronic abdominal pain and puts her at risk for future abdominal

issues including bowel obstruction. The case was originally filed in the Circuit Court of Cook County against Northwestern in 2010 and eventually proceeded to trial in October, 2015 before Judge Elmer Tolmaire III. After a week of trial, however, a mistrial was declared after the jury informed the judge they could not reach a unanimous verdict. Following that trial it was determined by talking to several members of the jury that the jury was split 11–1 in Plaintiff’s favor. A second trial ensued on this matter in the Circuit Court of Cook County, which began in October before Judge Debra Dooling. Northwestern defended the case by arguing Ms. Williams simply suffered a known and recognized injury which was not the result of malpractice. On Monday, November 8, 2016, the jury returned a verdict in favor of Plaintiff in the amount of $8,718,848.05. The plaintiff’s attorneys presented expert witness testimony from two worldauthorities, Dr. Darren Schneider, Chief of Vascular Surgery at Cornell Medical Center, and Dr. Jon Einarsson, head of Minimally Invasive Gynecologic Surgery at Harvard. According to the Law Bulletin Publishing Company’s Jury Verdict Reporter, this verdict is the highest ever reported in Illinois for a common iliac vein or artery injury and the third highest medical malpractice verdict reported against Northwestern Memorial Hospital. The plaintiff was represented by National Trial Lawyers member Brian Hurst and Thomas F. Boleky of Beutel Hurst Boleky, LLC in Chicago. Northwestern Memorial Hospital was represented by Charles Redden and Thomas Lang of Cunningham, Meyer and Vedrine, also of Chicago. Hurst said “What this young woman has been put through by Northwestern, as they’ve denied the undeniable for over eight years, should shock the conscience of anyone who lives in Chicago or considers Northwestern Memorial Hospital for their medical care. Veranda Williams went in for a routine laparoscopy to find out why she was experiencing periodic pain and ended up nearly dying as a result of a major vascular injury. She has fought and persevered and is putting her life back together, but she will suffer the effects of those injuries for the rest of her life.”


Banking on Justice. Esquire Bank stands with you in the fight against tort-reform, and by viewing your cases as assets, we’re able to provide superior lending options to improve your cash flow. Together we can build your business more efficiently and effectively. You don’t have to settle for less.

esquirebank.com | 1.800.996.0213 ©2015 Esquire Bank.


THEGOOD,BAD,UGLY By Farron Cousins

The

Bad

The

Good 2016 was a bad year — there is simply no other way to frame it. From the deaths of beloved entertainers and influencers to the horrifying presidential election results, 2016 will be remembered as a dark and unforgiving year that did its best to destroy our will to carry on. But amid all the horribleness that this year rained down, we managed to miss a large bright spot that provides hope for our future. That bright spot came from federal Judge Ann Aiken in Oregon. Just a few days after the 2016 presidential election, Aiken issued a ruling on a case brought by a group called Our Children’s’ Trust that had been stagnating for about a year. The case was filed by the group on behalf of 21 plaintiffs who ranged in age from nine years old to 21 years old. They were suing the state and federal governments, including President Obama, for their failure to take action on the issue of climate change. The children faced an immense amount of opposition for their suit from both the fossil fuel industry and the Obama administration, as both groups had lobbied for the case to be thrown out. But Judge Aiken understood that this case was not only necessary, but that these young plaintiffs absolutely had the right to bring the suit. In her decision, Judge Aiken wrote: “Although the United States has made international commitments regarding climate change, granting the relief requested here would be fully consistent with those commitments… There is no contradiction between promising other nations the United States will reduce C02 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce C02 emissions.” The case will now make its way forward, and with any luck, will force the government to finally start taking this issue seriously with legislation, rather than just paying lip service to the growing threat that climate change poses.

94 x The Trial Lawyer

On December 1st, 2016, millions of American workers were set to get a raise in the form of an overtime extension rule from the Department of Labor. This new rule would have extended overtime protections to workers making up to $47,000 a year, increasing that overtime threshold from around $23,000. The new rule would have allowed an additional 4.2 million Americans to qualify for overtime pay right before the 2016 holiday season, a great time of year to have a little extra cash. But the day before that rule was set to go into effect, a federal judge in Texas decided that the rule was a little too complicated, and he decided to suspend the rule until the court system had some more time to figure out whether or not it is even legal. That federal judge was Amos Mazzant, a man who was appointed to the bench by President Obama himself. In his ruling, Judge Mazzant said that he believed the Labor Department overstepped its bounds by increasing the overtime threshold by such a large amount, and because of this, they needed more time to really get into the issue to determine the legality of it. Basically, Judge Mazzant decided to kick the can down the road by a few months, which means that the rule will more than likely be struck down by the incoming Trump Administration’s Labor Department before Mazzant spends an ounce of brain power trying to figure out the law. If Obama had been a little more selective in his judicial appointments, he could have avoided this situation entirely. Mazzant came from a corporate defense firm where he represented big businesses and fought against the working class in the courtroom. And there’s no better way to repay the companies that made you wealthy than by telling them they don’t have to give their employees a raise. While Mazzant’s ruling was devastating, the real blame lies with President Obama, who consistently appointed anti-worker, pro-business judges and attorneys to positions of power throughout the country.


The Ugly

I’ve lived in the South for my entire life, and I know how seriously folks down here take their SEC football. Our Saturdays in the Fall are built around college gameday — tailgating, cookouts, inevitable arguments from someone over why their team is being unfairly treated by the officiating crews — that’s just how we operate down here, and we like it that way. Those Monday mornings when you return to work after your alma mater suffers a devastating loss can be brutal, mostly because you likely work around plenty of people who cheer for your rival school. But we’re adults, and we don’t let these losses interfere with our ability to function at work because, after all, it’s just a game. But you’d better not say that to judges in Louisiana, or else you could find yourself behind bars. According to a developing study out of Louisiana State University (LSU) titled “Emotional Judges and Unlucky Juveniles,” judges in the state

of Louisiana tend to hand down harsher sentences to juveniles following losses by the LSU Tigers football team. A pair of researchers have found that judges are often more aggressive in their sentencing after the losses, and that these sentences were not dependent on ethnicity, family income level, religion, or location. In other words, the only factor that changed sentencing for the same crimes were whether or not LSU won their game the weekend before. The intent of this study is not to shame Louisiana judges or highlight the flaws of the juvenile justice system, but rather to show that emotions play a major role in completely unrelated areas of a person’s life. But in the case of judges, who are supposed to leave emotion at the door and remain completely unbiased, it certainly does raise eyebrows, especially considering the fact that the people being punished are children.


The Trial Lawyer, Winter 2016-17