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The Trial Lawyer x 3


FROMTHEPRESIDENT

Chris Searcy • President Mark Twain supposedly once said, “The reports of my death have been greatly exaggerated.” However, in a handwritten note, Twain wrote in May 1897, “…the report of my death was an exaggeration.” The difference between the first and second quotes can perhaps be attributed to exaggeration. Either way, I am here to tell you that the death of the trial lawyer is “greatly exaggerated.” 45 years ago, I was researching a paper for a law journal, and I came across a poem written by a retiring trial lawyer. It meant a lot to me, as my father, Hank Searcy, was also a trial lawyer in Jacksonville, Florida. That poem, “The Trial Lawyer,” made such an impression on me that I memorized it. The last line in the poem is particularly appropriate for this subject: “Morituri Te Salutamus” If it seems familiar, it’s because that’s what Roman gladiators said when they went into the arena to fight for their lives. “We who are about to die, salute you.” It reflects the fortitude and confidence gladiators needed for the battle that lay ahead, especially when half of them knew they were going to die. We are the ones in the arena. We are the ones who feel the fear of defeat, who feel the impossibility of controlling all the variables of the courtroom, and yet rise above those fears and doubts and summon the work ethic, the preparation, and the courage to control those fears and walk into the courtroom with selfconfidence and tenacity with the spirit that cries “Morituri te Salutamus! 4 x The Trial Lawyer

That’s really what today’s trial lawyers are facing, up against a wealthy establishment which believes that having the right to address their grievances is too much. Despite that, trial lawyers keep fighting the good fight, and I encourage all of you to keep going into the arena. As I mentioned earlier, “The Trial Lawyer” made such an impression upon me that I memorized it. Here it is in its’ entirety.

THE TRIAL LAWYER By Longstreet Heiskell Memphis, Tennessee

We have loved the romance of the court’s arena! and have answered with gusto it’s every subpoena. There were cases we lost we should never have lost, but we packed up our papers and paid up the costs. There were cases we won we should never have won, though scant was the praise when the contest was done. We’ve bent with the shocks that an active life bears, and remembered delights but forgotten despairs. And now as we near the end of our race, how short grows our time and how tight grows our space. Still, we eagerly await every new day. The unbeatable cause may be coming our way! And when the day’s over, we’ll reminisce, about Judges in error, and juries amiss. And, at last, when the darkness is closing upon us, “Morituri te salutamus!”


The

Trial Lawyer

A MAGAZINE FOR TRIAL LAWYERS & A VOICE FOR JUSTICE

www.thetriallawyermagazine.com

Summer 2017 • Volume V, Number II PUBLISHER Legal Brands, Inc. EDITOR-IN-CHIEF Adair Baine-McDonald EXECUTIVE EDITORS Farron Cousins, Andrew Findley MANAGING EDITOR Brian McDonald SENIOR EDITORS Mike Papantonio, Angela Mason, Keith Givens Harlan Schillinger, Michael Burg, Joe DiNardo CONTRIBUTING WRITERS Arthur Bryant, Gregory A. Cade Farron Cousins, Erin Delaney, Chauncey DeVega, Robert Eglet, Richard Eskow, Andrew Findley, Thom Hartmann, David K. Lane, C. Richard Newsome, William Ourand, Mike Papantonio, Martha Rosenberg, Harlan Schillinger, Donald Tucker, Mollye Barrows Vigodsky, Bernard Walsh, Christina Walsh EXECUTIVE DIRECTOR Michelle Swanner DIRECTOR OF IT SERVICES Jerome Tew ILLUSTRATOR Jerry Byrd BUSINESS MANAGER Chase Givens PRODUCTION MANAGER Hope Crew COPY EDITOR Andrew Findley ADVERTISING OPERATIONS MANAGER Johnnie Hobbs JHobbs@TheTrialLawyerMagazine.com Office 866-662-2852 • Cell 334-803-9159

The Trial Lawyer magazine is published quarterly by The Trial Lawyer, Inc., 430 West Main Street, Dothan, AL 36301. The Trial Lawyer, Vol. V, No. 2, Summer 2017 (ISSN 2159-7413) © 2017, The Trial Lawyer, Inc. — All rights reserved. Reproduction in whole or in part without permission is strictly prohibited. Application to Mail at Periodicals Postage Prices is pending at Dothan, Alabama, and additional mailing offices. POSTMASTER: Send address changes to The Trial Lawyer, Inc., 430 West Main Street, Dothan, Alabama 36301. Produced and printed in the U.S.A.

ADVERTISING SALES EXECUTIVE Cathy Deloney Corbo CDeloney@TheTrialLawyerMagazine.com Office 866-662-2852 • Cell 334-718-1741 FINANCIAL MANAGER Eddie Terrell WEBSITE MANAGERS Carey Henderson, Steve May GRAPHIC ARTIST Jeremy Danzie


CONTENTS

departments

MEMBER SPOTLIGHT 11 Peter W. Burg — Burg Simpson Eldredge Hersh Jardine TOP 40 UNDER 40 12 Nicole Kalakau, Esq. — Leavitt, Yamane & Soldner OUTSIDE THE COURTROOM 13 Todd Romano — CrossFit RAISING THE BAR 14 Brian Denney, Michael T. van der Veen DOWN TO BUSINESS 16 Why Do Lawyers Push Back On Intake, Conversion, Metrics — And Accountability? FROM THE EXPERTS 18 Document Security In The Modern Age Of Technology PRODUCT WATCH 20 Asleep At The Wheel: How Trial Lawyers’ Heads Are Buried In The Ground With Respect To Self-Driving Cars And Transportation Network Companies LEGAL BRIEFS 26 Massachusetts Lab Falsified Data, California Juvenile Justice Reforms, FDA Warning Abbott Laboratories, Invokana And Amputation Risk, J&J Appeals $72 Million Verdict, U.S. Failing To Keep Mothers Alive During Childbirth, The Fairness In Class Action Litigation Act, Another Side Effect From Prilosec And Nexium

features 34

38 42 46 58 60 60 62

THE GOOD, THE BAD & THE UGLY 94 U.S. District Judge David Hittner U.S. District Court Judge Madeline Haikala The 9th Circuit Court of Appeals

66 70 74 76 80 84 90

The National Trial Lawyers Presents The 2017 Hall Of Fame Inductees Unsealed Remington Documents Posted By Public Justice Show Defective Triggers In Millions Of Rifles Could Fire On Their Own Deregulation Paved The Way For Airline Aggression Death Of The American Trial Lawyer The Republican Healthcare Con Is Part Of The GOP Long Game Don’t Fall For Big Pharma’s Scare Tactics Supreme Court Takes Up Cross-Border Shooting Case Republicans Use Psychological Manipulation And Fear To Prevent Action On Climate Change Americans Want More Government, Not Less, But Is Washington Listening? Republicans See Themselves As Heroes. They Are Actually Political Terrorists Hernia Mesh: More Harm Than Good From Defective Surgical Implants Not Safe As Prescribed: An Interview With Lawrence Golbom Zip-Line & Pre-Injury Releases The Implications Of Trump’s Executive Order On Climate Change And Energy Mass Torts Made Perfect Spring Conference Educates And Entertains


Advertising Material

Burg Simpson congratulates

MICHAEL S. BURG on his induction into the

TRIAL LAWYER HALL OF FAME Over 185 Trials | 15+ Verdicts in Excess of $1M $500 M+ in Settlements, Verdicts, and Judgments Lawyer of the Year, Law Week Colorado (2015) Lawyer of the Decade, Law Week Colorado (2000-2010) Named among America’s Top 50 Leading Trial Attorneys by the U.S. Legal 500 (2012-2015) 2013 Clarence Darrow Award Winner 2016 Denver Lawyer of the Year, Product Liability Litigation - Plaintiffs, Best Lawyers® in America Appointed as Co-Lead Counsel in the Yaz®/Yasmin® MDL and the Ortho Evra® MDL Appointed to the Plaintiffs’ Steering Committee in the Zyprexa® MDL Appointed as State - Federal Liaison for the Vioxx® MDL

Michael S. Burg, Founding Shareholder ACCEPTING CO-COUNSEL OPPORTUNITIES IN MASS TORT | CATASTROPHIC PERSONAL INJURY | PRODUCT LIABILITY | CONSTRUCTION DEFECTS COMPLEX COMMERCIAL LITIGATION | “BET-THE-COMPANY” LITIGATION | QUI TAM | CLASS ACTIONS MEDICAL MALPRACTICE | INSURANCE BAD FAITH | LAND USE DISPUTES | EMPLOYMENT LAW

888.895.2080

40 Inverness Drive East Englewood | Colorado | 80112

BURGSIMPSON.com Denver | Cincinnati | Phoenix Cody | Steamboat Springs Advertising Material


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


TOP100TRIALLAWYERS The National Trial Lawyers: Top 100 is an invitation-

only organization 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.

Peter W. Burg First job ever? Working as a laborer on liquor trucks and in a warehouse. Invaluable experience. I remember one of the workers constantly telling me to “work with my mind, not my back in the future” and stay focused on school. Proudest moment as a trial lawyer? Being co-lead of the Gadolinium-Based Contract Agents MDL and being part of the team that not only got meaningful compensation for the unfortunate folks who ended up with Nephrogenic Systemic Fibrosis (NSF), but also helped get an FDA Black Box Warning on the products, which has effectively wiped out the incidence of this insidious, manmade disease. Attribute my success to: Mostly trying to embrace kindness and being likeable. Also, perseverance, creativity, and work ethic, combined with an unusual and amazing culture of collaboration with my brother, Mike, and others at Burg Simpson. A little luck hasn’t hurt either! Notable verdict or settlement: Clearly, the work in the mass tort arena has been incredibly rewarding, especially fighting for those with NSF. But, I think my $4,000,000 verdict against Hertz Corporation last year was particularly rewarding due to the timing of it in my career, and the strong emotional connection with the clients.

Fantasy job? I’ve actually sort of lived my “Fantasy Job,” being able to help others and getting to practice law with family (my brother, son, and nephew), and great friends and amazing lawyers. However, in the context of a true “fantasy,” being a sports broadcaster or hosting “The Voice” wouldn’t be too bad! Guilty pleasure? Really? I have to come clean here? Okay, I confess that I watch “The Voice” and even watch “The Bachelor” with my wife. Does an occasional glass of red wine constitute a “guilty pleasure?” If so — “Guilty!” What I like to do in my time off: Top of the list is time with my wife and family! Staying active and enjoying the outdoors with skiing, hiking, and biking are really important. I also enjoy travel and reading a good book. I still have a thirst for exploring and learning new things. What’s your favorite hobby? Probably skiing, although traveling and chilling with family are gaining ground. One word that describes me: Compassionate

What keeps you awake at night? Demons in my head related to work and pieces of minutia I need to sort out and address. More recently, Trump! What newspaper do you generally read daily? Denver Post. New York Times on the weekends. What is your advice for a young attorney? Work hard to be good at your craft and enjoy the journey! I feel very fortunate to make a living helping injured people and battling for causes and values I believe in and that make a difference. Be passionate and compassionate. Find outlets that bring you joy and find philanthropic organizations and activities to give time, money and your heart to. How do you relax? Reading, exercise, meditation and gathering hugs from people I love and care about. What was your most embarrassing moment in life? Getting my haircut, assuming I had made the high school basketball team, only to learn I had been cut. Good lesson, though, that taught me to not make assumptions and work harder!


TOP40UNDER40

NICOLE KALAKAU, ESQ. Leavitt, Yamane & Soldner

TOP 40 UNDER 40

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

First job ever: Pre-school teacher’s aid

One word that describes me: Loyal.

Proudest moment as a trial lawyer: As a prosecutor, following a difficult trial, seeing a victim cry with relief and happiness because of a favorable result.

What keeps you awake at night? My cases and my children.

Attribute my success to: My supportive family.

What paper do you generally read daily? Star Bulletin (now the Honolulu Star-Advertiser)

Notable Verdict or Settlement: A difficult conviction by jury resulting in a 20-year prison sentence for a domestic violence perpetrator.

What is your advice for a young attorney? As a young attorney myself, I would encourage my peers to find an area of law that they are passionate about.

Fantasy job: First class airline seat tester.

How do you relax? I try to spend as much time with my kids and husband as possible. That is relaxing to me.

Guilty pleasure: Sleeping past 6:00 am. What I like to do in my time off: Take my sons to the park.

12 x The Trial Lawyer

What was your most embarrassing moment in life? It’s too hard to decide which moment is the most embarrassing.


OUTSIDETHECOURTROOM

TODD ROMANO CrossFit

find the time, but I tend to think that we owe it to ourselves, our families, our clients, and our law practices to devote even just a little bit of time each week to physical health and fitness, which also does wonders for one’s mental health.

Tell us about your passion project, talent or hobby outside the courtroom. My wife, Sarah, and I took up CrossFit about 5 1/2 years ago. Why did you choose this particular hobby? Physical and mental health, discipline, challenge, and competition. I played Division I college football and then I was a United States Marine… CrossFit is a great way to still be able to compete and to challenge myself physically despite being in my 40’s. How much of your time are you able to devote to your hobby? Not as much as I’d like, but it depends on the work week, travel, family events, and scheduling. The good news is that you can pretty much do CrossFit (or any fitness for that matter) almost anywhere if you discipline yourself and make the time for some fitness. Believe it or not

you can get in a great CrossFit travel workout in a hotel or in your own garage just using your own body weight and no equipment. Does your hobby have an impact on your legal career, and if so, how? If anything, it helps keep me focused and disciplined, and it forces me to deal with and overcome adversity just like we face in our cases and in our practices. An hour of CrossFit is also extremely cathartic! How does your hobby affect your work/life balance? This is where discipline is key. So many people make excuses about fitness, nutrition, and overall health. It is not always easy to

Who/what inspires you to do it? My wife, Sarah, and our three children, Ava, William, and Mae. We try to lead by example for our children and each other by being passionate about health and fitness and giving 100% effort in everything we choose to undertake, including CrossFit. Have you ever competed/instructed etc. with this hobby? My wife, Sarah, and I have competed many times at various CrossFit events throughout the state of FL over the past few years. We are over 40 now so we are in the “Masters” division, but competing keeps us young and keeps the competitive juices flowing. What’s the most rewarding thing about what you do? Competing! And I must say that I do also find a great bit of satisfaction in occasionally beating the young bucks in the gym! Do you feel this passion makes you a better attorney/person? Undoubtedly. CrossFit helps keeps me focused and disciplined as an attorney, husband, and father, and there’s no doubt that the intestinal fortitude that is sometimes required to get through a prescribed workout carries over to our profession.

The Trial Lawyer x 13


RAISINGTHEBAR

ATTORNEY MICHAEL T. VAN DER VEEN SELECTED TO 2017 PENNSYLVANIA SUPER LAWYERS LIST We are pleased to announce that National Trial Lawyers member Michael T. van der Veen has been selected to the 2017 Pennsylvania Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. It is his 13th year to be so named to this prestigious list. Francis O’Neill, Jr. has been selected to the 2017 Rising Stars list for the third year in a row. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The founder of the Law Offices of Michael T. van der Veen, Michael T. van der Veen represents the rights of people in Philadelphia, Pennsylvania, and its surrounding towns and counties. He focuses his practice on plaintiff’s personal injury, and criminal defense, and handles cases involving auto, motorcycle and truck accidents, construction accidents, slip and falls, medical errors, product liability, murder, sex offenses, white collar crimes, assault, drug offenses, DUI, and vehicular homicide. 14 x The Trial Lawyer

Florida Jury Awards $3.22 Million for Interrupted Cancer Treatments In Addition to Injuries Caused by Tractor Crash In a two-week trial conducted by National Trial Lawyers member Brian Denney and attorney Ed Ricci, a Palm Beach County jury awarded security guard Barry Davis $3,220,000 for damages incurred when his vehicle was struck by a tractor towing a grass mower. The verdict was based not only on Davis’s immediate injuries from the crash, but on his consequent inability to continue timely cancer treatments. Tractor driver Dale Vannelli was hauling a large, heavy commercial grass mower called a bushhog when he hit Davis’s Ford Mustang on the driver’s side as Davis neared an intersection. Davis, who has been traveling 76 miles an hour in a 50 miles per hour zone, was airlifted to a nearby hospital, suffering a left hemopneumothorax, which required a thoracostomy; a splenic rupture, which required exploratory laparotomy and splenectomy; fractures of his left clavicle; and multiple rib, lumbar, and other injuries. He was hospitalized for 22 agonizing days of surgeries, therapy and rehabilitation. Prior to the December 4, 2013 crash, Davis had been undergoing radiation treatment for a squamous cell carcinoma on his left cheek/jaw area, and the cancer had spread to his lymph nodes. For two months after the accident, due to his extensive injuries, he could not undergo critical cancer treatments. Less than two years later, doctors found that the squamous cell carcinoma had returned to Davis’s cheek and had already metastasized to the parotid gland. This diagnosis resulted in extensive surgery to remove the tumor, massive skin grafts from his right arm to repair surgical areas, and additional chemotherapy and radiation.


Because the crash with Vannelli had adversely affected his ability to treat his cancer successfully, Davis asked Board Certified attorney Brian Denney of Searcy Denney Scarola Barnhart & Shipley to represent him in a legal action to hold the tractor driver and his employer, South Florida Bushhog Service, Inc., accountable for the damages. “There was no question that the tractor crash was the catalyst for a one-two punch that resulted in life-threatening injuries and unimaginable suffering for Mr. Davis,” said Denney. “When the defendants refused to accept responsibility, we were forced to take the case to court.” Defendants maintained that Davis was solely liable for the crash because he was exceeding the speed limit, and that Davis’s recurrent cancer was not related to the interruption of treatment caused by the accident. They argued that, since Davis had a history of other superficial skin cancers, the recurrence on his left cheek would have occurred regardless of the crash. They also argued that Davis should not have been driving because he had received cancer treatments the day of the accident. However, in the course of a two-week trial, the Searcy Denney attorneys disputed defense attorneys’ allegations with the sworn statements of a treating oncologist, who testified that the cancer recurrence was caused by the lapse in Davis’s treatments. The jury agreed. Searcy Denney Scarola Barnhart & Shipley is a Florida-based trial law firm with more than 40 years’ experience handling personal injury cases. The firm has been named by U.S. News – Best Lawyers® “Best Law Firms” as a 2017 First Tier “Best Law Firm” in West Palm Beach for six practice areas and in Tallahassee for two practice areas. Have you recently made a notable achievement either inside or outside of the courtroom that you’d like to share with your fellow National Trial Lawyers members? If so, please send it to us at Editor@TheNTL. org or you can submit it through The Trial Lawyer magazine website at this address: http://www.thetriallawyermagazine.com/ contact-us/

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The Trial Lawyer x 15


DOWNTOBUSINESS

By Harlan Schillinger

WHY DO LAWYERS PUSH BACK ON INTAKE, CONVERSION, METRICS — AND ACCOUNTABILITY? If you feel your business is in a place where you don’t need to increase it, please don’t read any further. After 40 years in the legal marketing business, I’m not about to mince words anymore. Lawyers are spending a fortune on advertising, but very few have metrics in place to see what they’re missing. Often attorneys push back on intake, conversion and metrics because they’re blinded by what’s coming at them — and can’t see what’s actually falling through the cracks. You can throw more money at advertising, but unless you can increase your conversion rate, you’re operating in the dark. If you’re serious about boosting your cases and conversions, the first thing you need to do is start paying attention to what’s right in front of your nose and what you do not see. What you don’t know, you don’t know.

16 x The Trial Lawyer


Legal Advertising Is All About Accountability While there are some exceptions, a majority of law offices don’t know enough about how their business actually works and how successful it actually is or isn’t. Astoundingly, only about 350 of 3,000 major law firms that advertise in the U.S. are using a software system — rather than a filing cabinet (case management software) — to account for cases. Attorneys are still behind the times, and still buying their way out of marketing mistakes and bad decisions. So why are lawyers so hesitant about being accountable for intake, conversion and metrics? If you’re prosperous, why not be even more successful? If you’re motivated by money, why not look deeper to find out how to make even more profit — more efficiently — while still providing great service to injured victims? The problem, as I’ve discovered over many years of interacting with major law firms, is that the legal breed is so good at arguing the case — pushing back — that it has lost the point of marketing and advertising altogether. Why would anyone fight against the very tactics that could create more value for their investment and help their business flourish financially? That’s the conflict I want to resolve right here, right now. I would argue that law firms are actually being negligent when they’re too stubborn, afraid or behind the times to look at: • How their intake process is really working (typically the biggest hole in the law-firm bucket). • Whether or not paid leads are really converting to cases. • What metrics are saying about the health of the business. Remember, what you don’t know, you don’t know. It’s not the time to argue. Now is an opportune time to redefine your law firm with a few smart moves:

Ask More Questions To be competitive, you as the owner of your law firm have to stop procrastinating and pushing back — and start paying attention to intake, conversion and metrics. The best way to do that is to employ an approach that every great lawyer is already trained to do: Ask more questions. • What is my true conversion rate? • Where are my leads coming from? • What’s my true ROI on all my advertising? • What is coming to the firm and where is it coming from?

To keep up, lawyers must invest in intake and conversion tracking software. An automated dashboard will allow you to see exactly all the threads of business generation in one location. You won’t believe how this investment alone will pay off over time. Invest In Software Now! If you don’t have a system in place to track all your metrics, you’re kidding yourself. There’s no way to gauge your firm’s level of success with a case management system. That’s just a file cabinet that you put things in and cannot get things out of. If you do it is difficult. Reports? How is that working for you? To keep up, lawyers must invest in intake and conversion tracking software. An automated dashboard will allow you to see exactly all the threads of business generation in one location. You won’t believe how this investment alone will pay off over time. Learn How To Read Metrics Once you have software in place to track everything that comes into your office, you must put someone in charge of drilling down on data. You need to know:

• Where did this lead originate? • How much did this lead cost the firm? • Where can we do better in converting each lead to a case? There’s no point in having a software platform if you don’t commit to using rich and important metrics to boost efficiency, productivity and profitability. Ask yourself, when was the last time, if anytime you looked at and understood your Google Anylitics? Start there! Be Accountable And Open If you’re willing to take the leap into 21st century legal marketing (progressive firms are already thinking about the 22nd century), then you’ve got to be willing to be open to harsh realities and accountable for your actions. That means learning: • How good or bad you’re really doing? • How much you really spend and where you really spend it? • And, most importantly, what’s your return on investment? • Then put your new knowledge to work for your firm. I promise, if you take a moment to stop pushing back and start being accountable for your advertising, profits will flow — right back to your pocket. Oh, by the way, 95% of all lawyers that I have met over my 40 years in legal marketing tell me that they have it under control. They get 94% of everything they want. What does that mean? Are you telling me that your conversion rate is 94% of everything coming at you? Does it mean you get 94% of just the cases you want? I think what they are saying is, they get 94% conversion, if they are sitting face to face with a new prospect. Maybe. I don’t think so. Record every new call that comes into your office and you will clearly see what you do not see now.

The Trial Lawyer x 17


FROMTHEEXPERTS

By Donald Tucker, Esq, Deputy General Counsel

DOCUMENT SECURITY IN THE MODERN AGE OF TECHNOLOGY 4 Tips To Start You On The Right Path To Protecting Sensitive Client And Company Information

Disclaimer: this is intended as a guide only and not as a guarantee to secure your sensitive client and company information. In the modern age of technology and constant communication, attorneys have to worry about things that wouldn’t cross the minds of previous generations. One of the largest concerns currently facing modern attorneys is the ever-evolving issue of cyber document security. Since 2011, 80 out of the 100 biggest law firms in the country have experienced security breaches to some degree. Now, more than ever, law firms of all shapes and sizes are upping the degree of thought and funding that’s applied to protecting sensitive client and company information. The following provides a breakdown of what you need to know: 18 x The Trial Lawyer


1. Usability/Affordability v. Security? Everyone likes a bargain. However, when it comes to your firm’s cyber security, finding the best deal should not be your primary concern. Cyber security is becoming a huge part of the legal profession since maintaining client confidentiality is a cornerstone of the practice of law. With the access we now have to countless devices and media to communicate and share information, it is imperative that security leads between these competing interests. Invest time and money now when it comes to cyber security to avoid having to pay the price (and then some) at a later date. Malpractice claims rose 30% over the last two years pertaining to breaches in client confidentiality. One option is Sync. com for your document security needs. According to Cloudwards.net, it ranks #1 in security for all cloud-based services used by lawyers.

USB Drives: Again, using a USB drive may seem like a convenient way to save data, however most IT professionals will tell you that USB drives are one of the worst forms of storage due to the sheer fact that they are physically small and tend to get lost easily. In fact, 68% of IT respondents reported that they had likely experienced a theft or loss of data stored on a USB drive. Therefore, it is highly advisable to refrain from using any such device when it comes to client or confidential documents.

2. Be Wary of Email and USB Drives. When it comes to the use of email and USB drives, it is important to remember that what we’re comfortable with is not always best. Many of us have become very comfortable with sending emails and handling USB drives; however, just because we use these modes of information-sharing regularly doesn’t mean they are always the most secure means of communication. Here are some ways to tighten up security when filesharing in the office:

3. The Cloud Can Be Okay… It’s important to remember that most consumer file-sharing services were not created with security measures to safeguard business-critical files, let alone withstand the confidentiality requirements of law firms. When choosing a cloud service — a choice almost all firms will face at some point — be sure it provides an HSM-based encryption with tamperdetection circuitry for full encryption at rest and in transit, capable of satisfying even the strictest regulations. Since the Cloud’s genesis, countless new algorithms and software have been fortified to meet the needs of users from all walks of life, making it exponentially more secure for confidential documents and for law firms to use. For lawyers, state of the art “zero-knowledge” technology is pivotal when choosing an online data-storage service. A zero-knowledge algorithm does not allow the data host (i.e. Sync) to know of or have access to any of its clients’ content, and it also encrypts data in transit (uploads/downloads) and at rest (in storage). The downside to the airtight security that such cryptography generates is a decrease in usability. What would normally take seconds to access may take several minutes and may require

Email: On a micro level, when communicating with a client via email, explicitly warn the client about the risks involved when exchanging privileged information over this type of medium. It’s important that they are fully aware of any significant risk where a third party may come into contact with their information. If it’s mutually decided to go this route, make sure you’re using the most current version of Microsoft Office or Adobe Acrobat, password protect it with a “strong” password (will be defined later), and then provide the password in another document, or verbally over a secure phone line.

When choosing a cloud service — a choice almost all firms will face at some point — be sure it provides an HSM-based encryption with tamper-detection circuitry for full encryption at rest and in transit, capable of satisfying even the strictest regulations.

a daunting verification process. Security, however, will always reign victorious over usability. 4. How to Create the Perfect Password: One of the biggest errors lawyers can make when it comes to document security is creating their own password. After going through the painstaking process of properly encrypting a document, a password is needed to “officially” lock it. Avoid negating your meticulous work and use a password manager to create one for you. Software like this will create passwords that take hackers and passwordcracking programs up to 66 million years to decrypt, while passwords generated in the human mind take about…six seconds. When tested, the strongest password was comprised of 20 random upper and lowercase letters, numbers and punctuation. While seemingly daunting, by using a password manager to produce a password of this fortitude, you eliminate any anxieties of having sensitive documents breached and you can focus your energy elsewhere while the software does the dirty work for you and your colleagues. Adhering to these guidelines and applying the foundations of document security to your own internal policies can help the threat of a full-on security breach should be exponentially diminished. Remember, the success of your security is in the details: • Choose a secure cloud service • Spend the extra dollar • Lock every single shared document • Generate the most complicated password • Keep information on a strict “need-toknow basis” • Always log out of your work account All are easy provisions to make to work to ensure the safe and secure future of your firm!

The Trial Lawyer x 19


PRODUCTWATCH

ASLEEP AT THE WHEEL: How trial lawyers’ heads are buried in the ground with respect to self-driving cars and transportation network companies By C. Richard Newsome, Esq. and William C. Ourand, Esq. Self-driving cars and transportation network companies will soon converge and bring about a paradigm shift of tectonic plate proportions for the auto industry, auto insurance industry, and lawyers who handle auto crash cases. The industry is already preparing for the upcoming revolution, and is taking calculated political action to create a favorable legal framework and limit legal liability for the auto tort cases of tomorrow. The plaintiffs’ bar, on the other hand, remains far behind, and is in real danger of being stuck with a horrible set of rules and regulations dreamed up by the industry. This article will address the upcoming transportation revolution, will move on to discuss the industry’s political action, the plaintiff bar’s failure to keep up, and will conclude by offering suggestions for next steps. 20 x The Trial Lawyer


The Old Model Will Be Replaced Sooner Than You Think For the past 100 years, the auto industry has been dominated by the Big Three from Detroit and overseas auto manufacturers. That is all changing, now. Newcomer Tesla’s stock has continued to climb sky high — with the companies’ recent valuation of $51 billion surpassing Ford ($35 billion) and General Motors ($44 billion) — despite Tesla being a money losing business to date. Indeed, Ford’s stock recently sunk so low that the company fired its CEO, just two years after the company posted a record-breaking pre-tax profit of $10.8 billion. So how is a money-losing company valued higher than a company posting billion dollar profits? According to Tesla founder Elon Musk, the answer is simple: “Tesla is absurdly overvalued if based on the past, but that’s irrelevant. A stock price represents risk-adjusted future cash flows.” And it’s not just Tesla that is highly valued for being ready for the future. A team of financial analysts from Morgan Stanley recently estimated that Waymo, Google’s self-driving car division, would be worth more than $70 billion by itself, if it were spun off as an independent company. The development of self-driving cars is only half of the story, though. The other half is the continued explosive growth of so-called “transportation network companies” (“TNCs”) — i.e. Uber, Lyft, and similar rideshare businesses. Goldman Sachs has declared that TNCs are part of a new “pay-asyou-go” car era, and that ridesharing will grow eightfold by 2030. To achieve that level of market dominance, Goldman Sachs envisions TNCs managing fleets of self-driving cars, potentially earning a “profit of $14,000 per car over three years, nine times what [a manufacturer] currently makes from selling a car.” And it’s not just today’s TNC companies that will profit from this dynamic. Auto manufacturers themselves are looking to transition toward operating fleets of rideshare vehicles instead of selling and leasing vehicles to individual consumers through dealerships. GM, BMW, and Ford are each currently experimenting with their own versions of on-demand car-sharing in several U.S. cities, with the hopes of laying the foundation for profitable autonomous vehicle rideshare fleets. Make no mistake: the combination of self-driving cars and TNCs will bring about a complete paradigm change in automotive transportation. As explained by Morgan Stanley, “[t]he 100-year-old auto industry business model is … moving from ‘millions of units sold’ annually to ‘trillions of miles traveled annually,” with the new model being marked by “[s]hared, autonomous and electric mobility.” Under the new paradigm, individual car ownership will become a rarity. Think tank RethinkX, cofounded by Stanford instructor Tony Seba, recently predicted that only 20% of Americans will own a personal car by the year 2030, with most other Americans relying upon “autonomous, electric ride-shares” for their daily transportation needs.

Existing Tort Law Would Provide The Best Solution For The New Transportation Paradigm Automotive tort jurisprudence has evolved over the past century to provide a set of sensible, workable liability rules for car crash cases. The common law and statutory frameworks generally attach liability to a vehicle’s owner, operator, and, if a defect can be proven, the manufacturer, dealer, and component part suppliers. When taxi, bus, train, and similar businesses undertake to provide transportation services to the public, courts generally regard them as being “common carriers,” and imbue them with an elevated, non-delegable duty to provide safe passage. There is simply no reason why these rules cannot be applied to the new transportation paradigm. When companies like Lyft or GM offer an autonomous vehicle rideshare service, they will be simply providing transportation services to the public, and should be held to the same standards as a common carrier. TNCs, however, have already fought hard against being treated as common carriers for purposes of tort liability. They initially fought this battle in the courts — arguing that they are not common carriers, but are instead mere “brokers” and “technology companies” — but were soundly defeated in that venue. As explained by one court: Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs, John Deere is a ‘technology company’ because it uses computers and robots to manufacture lawn mowers, or Domino Sugar is a ‘technology company’ because it uses modern irrigation techniques to grow its sugar cane. Indeed, very few (if any) firms are not technology companies if one focuses solely on how they create or distribute their products. If, however, the focus is on the substance of what the firm actually does (e.g., sells cab rides, lawn mowers, or sugar), it is clear that Uber is most certainly a transportation company, albeit a technologically sophisticated one. In fact, as noted above, Uber’s own marketing bears this out, referring to Uber as ‘Everyone’s Private Driver,’ and describing Uber as a ‘transportation system’ and the ‘best transportation service in San Francisco.’ This result also comports with the sound public policy underlying the common carrier doctrine; namely that “the passenger must entrust his or her bodily safety to the care and control of the carrier’s vehicle and employees, and he or she cannot freely or independently walk away, once the undertaking has commenced.” A consumer is no better able to protect themselves once they enter a TNC vehicle than they are when they enter a taxi cab. There is no logical reason The Trial Lawyer x 21


to treat a passenger travelling in a TNC vehicle less favorably than a passenger travelling in a taxi-cab. Disparate treatment between those two individuals, with the TNC passenger receiving less legal protection, would constitute horrific and regressive public policy. The common carrier doctrine would also be particularly important when considering the many hats that auto manufacturers and other transportation providers will wear moving forward. Three separate defendants in a typical auto products liability case of today — the owner, operator, and manufacturer — will likely be distilled down to one entity, or family of entities, in an autonomous, fleet vehicle crash case of the near future. The common carrier doctrine could operate alongside products liability and negligence doctrines to ensure that auto manufacturers and others are held accountable for each of the several hats they will wear under the new paradigm. The Industry Is Working Feverishly To Enact A Framework That Favors Industry And Disfavors Consumers Over the past several years, Florida has enacted or considered several laws that are significant to both self-driving cars and TNCs. We believe these lobbying efforts are emblematic of 22 x The Trial Lawyer

the greater industry strategy to lay a favorable legal foundation for the new transportation paradigm — one that would differ from the traditional common law doctrines discussed in the preceding section. In 2016, under the nose of the sleeping Florida Justice Association (“FJA”), the Florida Legislature passed a radical bill allowing for self-driving cars to be operated on Florida’s roadways with no human physically present in the vehicle. That same year, the legislature eliminated the requirement that an entity testing autonomous vehicles in Florida submit a $5 million bond. As a result, Florida became the state with the laxest laws on the testing and operation of self-driving cars, all without any fight from the Florida plaintiffs’ bar, or any other consumer advocacy group. This year, a coalition of auto industry and TNC players sought to pass an even more aggressive bill in Florida. Specifically, they attempted to add language which would provide that the autonomous vehicle itself would be deemed the “operator” of the vehicle when the vehicle is operating in “autonomous mode.” They also attempted to pass language which would allow anyone in the world to simply push a button and “engage” an autonomous vehicle in Florida. Even Florida’s current laws, as lax as they, require that: (1) a licensed human driver “engage” the autonomous technology,


and in doing so, be deemed the “operator” for purposes of establishing legal liability; and (2) the vehicle have some means to alert the human operator if there is a failure with the autonomous technology. If passed, the industry’s new proposed language would have eliminated those minimal requirements, and allowed for self-driving cars to operate throughout the state without absolutely no human oversight or monitoring, which would be disastrous from both a safety and a liability perspective. When some of us spotted the 2017 proposed Florida legislation, we were shocked to learn that consumer groups initially identified the bill as not being harmful for consumers or the civil justice system. We then explained our concerns to the various consumer groups, and worked to stop the bad language from becoming law. The battle was waged throughout the legislative session this year, with the bill first being killed in committee, only to be revived by an army of industry lobbyists at the last second through a proposed amendment to a larger transportation bill, and killed once again in the last few days of the session. On the TNC front, industry lobbyists successfully pushed a separate TNC bill through the Florida Legislature. This legislation sets out some basic insurance and other requirements for TNC network operators (Uber, Lyft, etc.), and then otherwise attempts to statutorily limit the application of various common law doctrines to those entities. Most notably for purposes of this article, the bill provides that a “TNC … is not a common carrier… .” This new law will take effect July 1, 2017. Thankfully, the definition of TNC in the Florida statute is tied to the use of human drivers, and as such, should not affect the applicability of the common carrier doctrine to rideshare networks operated by autonomous vehicle fleet owners. Industry lobbyists did, however, include a provision specific to autonomous vehicles used by TNCs in their last-ditch effort to get their relaxed autonomous vehicle language tacked onto the larger transportation bill. As discussed above, that late amendment to the transportation bill was defeated — for now — in the final days of the session. Wake-Up Call: The Plaintiffs’ Bar Must Engage The big takeaway from our recent experience in the Florida fight over bad self-driving car and TNC bills is that the plaintiffs’ bar is several steps behind the industry. Industry lobbyists are hard at working laying the foundation for a proindustry legal framework that could result in horrible, anticonsumer tort liability rules. Plaintiffs’ lawyers must be equally involved, with an eye on what transportation will look like tomorrow. The best way to get involved is to take an active role in state and local trial lawyers’ associations, as well as the American Association for Justice (“AAJ”). In doing so, it will be critical to work to leverage the power of those organizations to defend against bad bills. Beyond that, the plaintiffs’ bar should also take appropriate affirmative action where viable. Examples of

pro-consumer legislation solutions that plaintiffs’ organization may consider advocating in favor of include (but are by no means limited to): • Requiring entities and individuals who test, own, and operate self-driving cars to demonstrate and maintain sufficient insurance, a bond, or other means to ensure the ability to answer for civil judgments. > See, e.g., NHTSA, Federal Automated Vehicles Policy, p. 42: “The application should include evidence of the manufacturer’s or other entity’s ability to satisfy a judgment or judgments for damages for personal injury, death, or property damage caused by a vehicle in testing in the form of an instrument of insurance, a surety bond, or proof of self-insurance, for no less than 5 million U.S. dollars.” > See, e.g., Michigan Vehicle Code Section 257.2b(7) (c): Requiring self-driving car manufacturers to obtain and provide “an instrument of insurance, surety bond, or proof of self-insurance in the amount of at least $10,000,000.00.” • Requiring the entity responsible for testing or operating self-driving vehicles to submit a sworn statement to the effect that it has conducted sufficient testing to ensure proper operation under real-world operating conditions. • See, e.g., California DMV, Application for Permit to Deploy Autonomous Vehicles on Public Streets, p. 2: Requiring the applicant to certify that “[t] he manufacturer has conducted test and validation methods and is satisfied that the autonomous vehicles are safe for deployment on public roads in California.” • See, e.g., NHTSA, Federal Automated Vehicles Policy, pp. 41-42: “The application should include the manufacturer’s or other entity’s safety and compliance plan for testing vehicles, which should include a selfcertification of testing and compliance to NHTSA’s Vehicle Performance Guidance for the technology in the test vehicles under controlled conditions that simulation the real-world conditions (various weather, type of roads, times of the day and night, etc.) to which the applicant intends to subject the vehicle on public roadways….” • Requiring that data be recorded in a manner that would ensure self-driving car crashes can be properly analyzed by third-party consultants and experts. • See, e.g., NHTSA, Federal Automated Vehicles Policy, p. 17: “Manufacturers and other entities should have a documented process for testing, validation, The Trial Lawyer x 23


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• See, e.g., California Vehicle Code, Section 387502(2)(G): Requiring that, “[t]he autonomous vehicle has a separate mechanism, in addition to, and separate from, any other mechanism required by law, to capture and store the autonomous technology sensor data for at least 30 seconds before a collision occurs between the autonomous vehicle and another vehicle, object, or natural person while the vehicle is operating in autonomous mode. The autonomous technology sensor data shall be captured and stored in a read-only format by the mechanism so that the data is retained until extracted from the mechanism by an external device capable of downloading and storing the data. The data shall be preserved for three years after the date of the collision.”

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Society is on the precipice of a rapid paradigm shift away from individual ownership of vehicles and towards fleets of self-driving cars operated on a rideshare basis. This cataclysmic change will send shockwaves through corporate America and will upend the auto tort practice as it exists today. The industry is already hard at work attempting to remold the legal system in a way that is favorable for it and unfavorable for injured consumers. The plaintiffs’ bar must be equally engaged in the process to ensure that the courthouse doors remain open in the years to come. Citations available on request

© 2017 Thomson Reuters S049093/6-17

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LEGALBRIEFS

Massachusetts Lab Falsified Data, Imprisoned Thousands One of the most jaw dropping scandals to hit America’s legal system stresses the need for criminal justice reform when it comes to drug labs and evidence testing. Back in 2012, the state of Massachusetts was forced to close the William A. Hinton State Laboratory after chemist Annie Dookhan was caught falsifying drug tests and tampering with evidence. As a result, the state Supreme Court ruled that more than 23,000 convictions of mostly low-level drug offenders be overturned. Dookhan worked at the state lab in Boston for nearly a decade before the tampering was discovered. She served about 2.5 years in prison for her crime before she was released last year. Her motive is unclear, but her co-workers described her as driven to stand out at any cost, even lying, and say she was also friendly with prosecutors, although her was job was to remain neutral. Critics believe Dookhan was able to get away with massive evidence tampering for so long due to flaws in the criminal justice system. Many labs, including the one where Dookhan worked, lack the accreditation and protocols needed to prevent and detect misconduct like this and the result is a misuse of science and wrongful convictions in states across the country. According to the National Association of Criminal Defense Lawyers, lab scandals have 26 x The Trial Lawyer

By Mollye Barrows Vigodsky and The Ring of Fire Network

undermined thousands of convictions in eight states over the past decade. Civil rights advocates say part of the problem is that labs are seen as extension of law enforcement, instead of a neutral part of the evidence gathering process. In fact, even after the tampering was discovered it took five years for the court to rule on what to do about it. Prosecutors fought to keep the convictions and let defendants challenge them. However, the Massachusetts Supreme Court decided to dismiss the mostly low-level drug cases and instead have prosecutors review the cases and focus on the ones they can re-try. Prosecutors will release a list of those cases, which is expected to be in the hundreds. Most of the people Dookhan helped convict have already finished their sentences. Those pushing for reform say Dookhan’s actions are a sign of a bigger problem, and unless these issues are addressed there will continue to be a widespread and expensive toll taken on defendants and the criminal justice system.

California Pushes New Juvenile Justice Reforms Lawmakers in California have introduced a series of criminal reform bills in the hope of keeping more juveniles out of prison. The proposed measure would require minors to speak with attorneys before waving their rights during interrogations, eliminate incarcerating children under 12-years-old and ban life sentences

without parole for anyone under 18, among other measures. If approved, these reforms would change how the court treats juveniles charged with a crime. For example, instead of incarcerating children under 12, lawmakers are suggesting child welfare services handle them in group homes and other settings where they can be held and treated in ways appropriate for their age. The goal is that reforms like this will not keep kids out of jail, saving money and lowering incarceration rates, but they will also give juveniles a chance to reform and makes changes that will keep them from becoming adult criminals. Between 2001 and 2011, youth incarceration in the U.S. actually dropped more than 40% and California was no exception, but of the children who remain behind bars, the vast majority are children of color. A study by the National Council on Crime and Delinquency found that while there has been a big drop overall, the percentage of minority children behind bars actually climbed higher. Authors of the study believe that’s due to a combination of factors including a lack of alternative programs for juvenile offenders, and bias against minority children, since research has shown children of all ethnicities behave much the same way. California especially has seen a dramatic drop in youth incarceration, plummeting from 10,000 kids to 800 in a decade, but of those that are incarcerated more than 90% of them are non-white. The reforms proposed by legislators are proposing to tackle that disparity and make sure children are treated fairly, regardless of race or age. A few other states like Florida, Pennsylvania, and Washington have started to implement more delinquency prevention programs, like diverting first-time offenders from the


justice system to programs that address the root causes of behavior. The result is often lower school dropout rates, drug use, and criminal behavior. Ultimately, lowering incarceration and recidivism rates saves communities money and human capital. The problem in many states is convincing leaders that traditional tough-on-crime approaches, — like trying children as adults — don’t work and only cost more in the long run. In November, California voters approved a different criminal justice reform measure, Proposition 57, meant to reverse many of the policies of the 1980s and 90s that led to exploding incarceration rates. This bill will give thousands of state prisoners an early opportunity to be released, and it would also allow judges to decide if a juvenile accused of a serious crime should be tried in adult court, a decision previously in the hands of prosecutors. Now judges will consider not only the circumstances of the crime a juvenile is accused of committing, but also take into account other factors such as mental development, education, and home life in determining if a minor should be sent to adult court. Supporters of the measure and the other proposed bills hope these steps will reduce jail and prison overcrowding and give low level offenders a better chance to rebuild their lives, including finding work and reducing debt related to bail and court costs. There are a total of eight bills being proposed when it comes to reforming juvenile criminal law and they will require a majority vote to pass. The bills will be heard in their first legislative committees over the next month.

FDA Issues Warning to Abbott Laboratories About Defective Devices In a strongly-worded letter in mid-April, the Food and Drug Administration issued a warning to medical device company Abbott Laboratories regarding defective heart defibrillators and a medical monitoring device with potential vulnerabilities to hackers. The issues are centered around three implantable defibrillators: the Fortify ICD, the Quadra Assura MPTM CRT-D, and the Unify CRT-D. In addition, the Merlin@HomeTM Transmitter, a heart monitor that sends information over the company’s Merlin. NetTM Patient Care Network, was also the target of FDA concern. All of the devices in question are produced by St. Jude Medical, which was taken over by Minneapolis-based Abbott earlier this year. According to the letter, the defibrillators, which won FDA approval in 2010, are subject to premature battery depletion. The FDA issued a warning last October listing several models. These devices, which are implanted under the skin with insulated wires leading to the heart muscle, are designed to regulate heart rate, providing shocks to the heart when needed. They are powered by lithium batteries that were found to have a defect, causing the battery to drain within as little as 24 hours after implantation. So far, these have been responsible for at least two deaths and 47 adverse events. As of the time of that warning, nearly 350,000 of the affected devices had been sold around the world.

St. Jude Medical issued a recall for the affected devices shortly after the FDA warning was published. In January, the FDA identified “cybersecurity vulnerabilities” with both the cardiac devices and the Merlin@Home Transmitter, which could leave them open to intrusions and exploits. This issue has become of increasing concern as modern medical devices are interconnected with health care networks and a range of devices over the World Wide Web.

Invokana Puts Diabetic Patients At Greater Risk For Amputation Last year, the European Medicines Agency (EMA) started an investigation into the possibility that use of the diabetic medication Invokana (canagliflozin) increased a patient’s risk of limb amputation. Although solid evidence of this risk had not yet been found, the EMA chose to err on the side of caution, requiring packages in the EU to carry a warning to that effect. Similar clinical studies were underway in the US, but the Food and Drug Administration as usual refused to go beyond issuing an “advisory.” This week, researchers came to a definite conclusion: Invokana definitely increases the risk that a diabetic patient will lose a lower limb to the disease. The final results from two studies (CANVAS and CANVAS-R) showed that patients taking Invokana wound up having to have foot and leg amputations twice as often as those who were given a placebo. According to the CANVAS study, nearly six out of every 1,000 Invokana patients will suffer complications requiring limb The Trial Lawyer x 27


amputation over a 12-month period. Results for subjects participating in the CANVAS-R were even more grim: the rate of amputation for this group was 7.5 per 1,000. Most amputation involved the loss of toes and the middle of the foot, but leg amputations also occurred. Some patients wound up losing both legs. Invokana packaging in the US will now be required to carry a “black box” warning. Physicians are advised to have patients discontinue the use of Invokana if they begin to experience limb pain, or develop sores, ulcers or infections of the leg or foot. Patients should not take Invokana if they have a history of prior amputations, suffer vascular disease or have experienced diabetic neuropathy (nerve damage).

In Wake Of Brazilian Ban, Bayer Discontinues Essure In Two European Countries In February, the Brazilian health authority Anvisa announced that all imports, distribution and sales of the Essure contraceptive device would be discontinued in that country. Essure has been classified as being of “maximum risk” because of “changes in menstrual bleeding, unwanted pregnancy, chronic pain, perforation and migration of the device, allergy and sensitivity or immune-type reactions.” This month, Bayer AG announced its decision to discontinue Essure marketing and sales in Finland and the U.K., citing declining sales figures. Essure distribution ceased in Finland on June 25th, and will no longer be available in the U.K. after September 1st. According to the Bayer AG website (translated from Suomi): “Bayer has decided to close Essure® preparations

from the sales and distribution in Finland 06/25/2017 [for] business reasons. The demand for Essure® preparations in Finland has been limited and in continuous decline, and there is no expected change in the situation.” In other words, it has nothing to do with safety concerns and everything to do with the fact that Bayer isn’t making any money from a device that is causing severe injuries and doesn’t function as advertised. In response to a recent inquiry, Bayer UK confirmed its plans to “discontinue the sales and distribution of Essure in the UK from the 1st [of ] September 2017.” Tellingly, Bayer emphasizes that the decision “was taken for commercial reasons and that the favorable benefit-risk profile of Essure remains unchanged” (emphasis mine). As is the case in the company’s other decision, none of the stories of women suffering as a result of Essure or the lawsuits facing the company have any impact on Bayer’s marketing decisions — it’s all about profits (or in this case, the lack thereof ). Meanwhile, here in the U.S., the Food and Drug Administration has taken virtually no action toward removing Essure from the market, despite the large number of adverse event reports. In 2015, Representative Michael Fitzpatrick (R-PA) introduced legislation to outlaw Essure sales, and the bill has garnered bipartisan support. Other bills introduced by Fitzpatrick include “Ariel Grace’s Law“ (H.R. 5403) and the Medical Device Guardians Act (H.R. 5405), both of which were introduced last year. The latter two bills are more general in nature, but would have impacts on Essure and other harmful medical devices in terms of holding manufacturers and physicians accountable. Unfortunately, no further action has been taken on these bills. In the end, the only way to rid the U.S. of Essure may be for patients to follow the examples of patients in Finland and the U.K. and just stop using it — since a profit and loss statement is the only thing Bayer understands.

Why Is The U.S. Failing At Keeping Mothers Alive During Childbirth? Despite flaunting advanced science and investments into quality of life, the United States is still woefully behind much of the developed world when it comes to keeping mothers alive during childbirth. As ProPublica notes, while other advanced nations continue to see their maternal mortality rates drop, the U.S. has seen a sharp upswing in deaths and near-deaths between 2000 and 2014: “American women are more than three times as likely as Canadian women to die in the maternal period (defined by the Centers for Disease Control as the start of pregnancy to one year after delivery or termination), six times as likely to die as Scandinavians. In every other wealthy country, and many less affluent ones, maternal mortality rates have been falling.” In Great Britain, the rate is now so low that a woman’s male partner is more likely do die during her pregnancy than she is. Meanwhile, 60% of American women who die in pregnancy and birthrelated deaths die from preventable causes. The most obvious culprit is to blame for some of the death: many of the women who die are low-income and minority. But even the most affluent women are dying as well. They died from cardiomyopathy and other heart problems such as massive hemorrhage, blood clots, infections and pregnancy-induced hypertension (preeclampsia) as well as rarer causes. Many died days or weeks after leaving the hospital. One culprit is a general trend of older mothers in the United States. As women


are choosing when to have children, and many putting their education and career before establishing a family, the number of “geriatric” women attempting to give birth is rising, raising risks as well. Unfortunately, the biggest preventable culprit of these preventable deaths is the way that we view and treat mothers during the birth process. While healthcare providers perform a wealth of tests on newborn babies, mothers are often left to their own devices. As a result, internal injuries and long-lasting side effects of a traumatic birth are often overlooked.

The “Fairness In Class Action Litigation Act” Will Make It More Difficult To Hold Pharmaceutical Companies Accountable Even when companies like Johnson & Johnson, Bayer, Daichii Sankyo and others are found liable for creating and marketing products that cause injury and death, holding them accountable is difficult. First of all, verdicts against such corporate defendants are frequently appealed — and the appellate process can drag on for years. Secondly, when these corporate offenders finally are held accountable and forced to pay up, the fines and judgments usually don’t amount to more than an insignificant portion of their net worth — and they can be written off as part of the cost of doing business. Nonetheless, it is the best way for injured parties to get some modicum of justice. However, if the Trump Administration and the GOP have their way, plaintiffs will find it far more difficult to obtain that justice. A major

step in that direction was taken recently, and the story has been flying under the radar. That step is House Resolution 985, better known by the Orwellian name of “The Fairness in Class Action Litigation Act of 2017.” This bill passed the House of Representatives in March, not surprisingly by a party line vote. It will put severe restrictions on class action lawsuits by requiring proof that “each proposed class member suffered the same type and scope of injury as the named class representative,” and that any certification of said class is based on “rigorous analysis of the evidence.” In short, it will make it almost impossible for plaintiffs who have been injured by the same product to join forces against the corporation responsible for those injuries. Democratic Representative Jaime Raskin of Maryland says that the bill, should it become law, won’t shut down class actions altogether — but it will definitely impose severe constraints. He says, “It’s not the guillotine, but it’s a strait jacket,” adding, “It sends another huge valentine and wet kiss to large corporate tortfeasors, but gives the finger to millions of American citizens who suffer injuries from these defendants.” Naturally, the corporate-friendly Republican Party has a different take on it. To GOP Representative Blake Farenthold of Texas’ 27th District, H.R. 985 is about streamlining the process and putting limits on “excessively broad” class action lawsuits he claims hurt business and force consumers to join litigation they want no part of. Speaking to The Hill, Farenthold said, “The purpose of a class action is to provide a fair means of evaluating similar meritorious claims, not to provide a way for lawyers to artificially inflate the size of a class to extort a larger settlement fee for themselves, siphoning money away from those actually injured and increasing prices for everyone.” The good news is that H.R. 985 is not yet law — and it faces many obstacles. A similar bill, H.R. 1927, the “Fairness in Class Action Litigation Act

of 2015,” was passed by the House, but died in the Senate. Furthermore, a broad coalition of civil rights and consumer rights advocacy groups are gearing up to oppose the bill, along with the American Bar Association. Furthermore, the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States has gone on record in opposition to this ill-considered legislation. According to PredictGov. com, H.R. 985 currently has only an 18% chance of passing both houses of Congress. Considering the current state of the federal government and the chaos that is defining the Trump Administration, it is not time to panic — but we need to remain vigilant.

Yet Another Side Effect From Prilosec And Nexium: Higher Rates Of Pneumonia In Dementia Patients It appears that there is no end to the list of side effects caused by use of proton pump inhibitors (PPIs) such as Prilosec and Nexium. They have been linked to kidney damage, elevated risk of stroke, accelerated aging, colitis, osteoporosis, fluid accumulation in the abdominal cavity and dementia. These medications have also been linked in a number of studies to potentially deadly intestinal infections caused by an antibioticresistant strain of bacteria known as clostridium difficile. Now, researchers in China have found that dementia patients taking PPIs suffer higher rates of pneumonia. The study, which was conducted at the Chung Shan Medical University in Taichung, was an analysis of nearly 1,600 patient data files from the The Trial Lawyer x 29


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Taiwanese National Health Insurance Research Database. Half of the patients had recently started treatment with PPI medications, while the other half had never taken them. The study allowed for independent risk factors such as age, gender, cardioand cerebral-vascular disease, lung disorders, heart problems and diabetes as well as use of psychotropic prescriptions such as anti-depressants. After those were factored out, researchers reached the conclusion that “PPI usage in dementia patients is associated with an 89% increased risk of pneumonia.” Significantly, patients treated with another class of heartburn medications known as H2 blockers had a lower risk of contracting pneumonia. The study was published in the March 21st issue of the Journal of the American Geriatrics Society. It is only the most recent in a series of research studies from around the world that have been associating PPI medications with serious, health-threatening side effects. According to the growing number of lawsuits, the manufacturers of PPIs have long known about these side effects and deliberately withheld this information from healthcare consumers. Plaintiffs also allege that many lessharmful alternatives to PPIs are available for the treatment of conditions such as acid reflux that they would have chosen had they been made fully aware of the risk factors. On the litigation front, the U.S. Judicial Panel on Multidistrict Litigation recently denied a motion from plaintiffs’ counsel to consolidate all federal lawsuits against PPI manufacturers. Nonetheless, the number of lawsuits against PPI makers AstraZeneca and other PPI manufacturers continues to grow as these cases move forward through the courts. If this trend continues (as seems likely), plaintiffs will probably refile the motion for consolidation at a future date.


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The Trial Lawyer x 33 888.961.5495 ● www.belllegalgroup.com


THE NATIONAL TRIAL LAWYERS Presents

The 2017 Hall Of Fame Inductees The National Trial Lawyers wants to take the time to recognize and honor the 2017 inductees in the Trial Lawyer Hall of Fame. Housed at the Beasley School of Law at Temple University, the Trial Lawyer Hall of Fame honors those lawyers who have spent their lives in the service of others. Advocates in both the courtroom and in society, these remarkable individuals exemplify the qualities that all attorneys strive to emulate. At the Spring 2017 Mass Torts Made Perfect conference at the Wynn Resort in Las Vegas, Linda Lipsen, the Honorable David Herndon, Mark Lanier, Peter Perlman, and Harvey Weitz were inducted into the Hall of Fame. Each of these new Hall of Fame members have devoted their careers to leveling the playing field against massive corporate interests in order to preserve the way of life of the American people, and their stories are as unique as their different approaches towards the legal profession: 34 x The Trial Lawyer


Hon. David R. Herndon David R. Herndon, District Judge in the District Court for the United States District Court for the Southern District of Illinois, was confirmed by the Senate on October 21, 1998, pursuant to nomination by President William J. Clinton. His federal tenure followed seven years as an Associate Judge in the Third Judicial Circuit, Madison County, Illinois. Prior to that, Herndon worked as a trial attorney, specializing in plaintiff’s personal injury cases, with an emphasis on FELA litigation, for 14 years. An undergraduate degree from Southern Illinois University Edwardsville preceded his law degree from Southern Illinois University Carbondale. Judge Herndon served as Chief Judge from October of 2007 through September of 2014 and currently serves as Chair of the Judicial Conference Committee on Judicial Security. He is a member of the Federal Judges Association, serving on the Security Committee there as well. Herndon serves as member of the Seventh Circuit FELA subcommittee to the Pattern Civil Jury Instruction Committee. Notable cases that Judge Herndon has presided over in state court include: Best v. Taylor Machine Works (ruled Illinois’ new tort reform law unconstitutional in its entirety). Notable cases that he has presided over in federal court include: MDL 1275 MCI Phone Rate Litigation (multiple class action consolidated; resolved within 24 months); USA v. Arther Hawkins, Douglas Pearson, and Alan Gauthier with pretrial diversion agreements for Exide Corporation and Sears Roebuck. (Three month criminal trial against the top three corporate officers of the Exide battery company for defrauding the public in manufacture of the Sears Die Hard battery) ; Wilfong v. Rent-A-Center (class action alleging gender discrimination resolved in 25 months with agreement that chairman of the board would be replaced and a number of corporate policies changed and new ones implemented); MDL 2100 In Re: Yasmin and Yaz (Drospirenone) Marketing Sales Practices and Product Liability Litigation (involves an oral contraceptive; at one time during the litigation, the largest MDL pending in the nation); and MDL 2385 In Re: Pradaxa (Dabigatran Etexilate) Products Liability Litigation (involved a blood thinning medication; resolved in 22 months).

Mark Lanier Attorney, Author, Teacher, Pastor and Expert Story Teller, Mark Lanier is no stranger to the public platform. Since he founded The Lanier Law Firm in 1990, Mark has earned international recognition as one of the top trial attorneys in the United States with firm offices in Houston, New York and Los Angeles supporting his work for clients across the country. Mr. Lanier’s courtroom experience is significant and diverse. In December 2016, he earned a $1 billion combined jury verdict in a products liability case over defective hip implants against defendant DePuy Orthopaedics Inc., a subsidiary of health care giant Johnson & Johnson. In March 2016, he secured a multi-million dollar verdict in the same federal court in the initial bellwether trial against DePuy and Johnson & Johnson over the metal-on-metal hip implants. This verdict was recognized by the National Law Journal as the “Outstanding Medical Device Award” for 2016 and as one of the Top 50 Verdicts of the Year. He scored another headline-grabbing verdict in April 2014 against Takeda Pharmaceutical Co. Ltd. and Eli Lilly & Co. over the diabetes drug Actos. Mr. Lanier’s verdicts are too numerous to name — he has a formidable list of record-setting verdicts and settlements that is one of the most prolific in the legal profession. His peers and the media consistently recognize him among the country’s leading legal minds. Here are just a few of his long list of awards: Trial Lawyer of the Year by The National Trial Lawyers and The Trial Lawyer magazine; as well as the Lawdragon Top 500; The American Association of Justice’s Lifetime Achievement Award; and the Clarence Darrow Award, awarded to Mark by Mass Torts Made Perfect. He is regularly named in Chambers USA: America’s Leading Lawyers for Business, where he also received special recognition as a national leader in product liability and mass tort cases. Mark has been listed in The Best Lawyers in America list for more than a decade, including previously being named the 2013 Top Class Action Attorney in America. Mark’s additional professional honors include his recognition as a Litigation Star by Benchmark Litigation; and The Trial Lawyer magazine’s America’s 100 Most Influential Trial Lawyers. Mark’s courtroom work has resulted in feature articles in The Wall Street Journal, The New York Times, Los Angeles Times, The Boston Globe, Bloomberg News and the Houston Chronicle, among many others. He also is a frequent guest on news shows such as CNBC’s “Squawk Box” and Fox News’ “Your World with Neil Cavuto.” Mark also is a regular co-host and contributor to Fox Business News’ highly rated “Varney and Company.” Mark also is the founder of the Lanier Theological Library, one of the nation’s largest private theological collections. He graduated from Texas Tech University School of Law. The Trial Lawyer x 35


Linda A. Lipsen Ms. Lipsen was named Chief Executive Officer of the American Association for Justice (AAJ), formerly known as the Association of Trial Lawyers of America (ATLA), in April 2010. She joined the organization in 1993 to direct AAJ’s Public Affairs department. Ms. Lipsen has led the trial lawyers’ highly regarded Washington lobby team and successfully fought back efforts that would limit access to America’s courts and make it impossible for the victims of negligence or willful wrongdoing to be fairly compensated for harm. She has directed countless legislative campaigns on behalf of a host of issues including patient, worker, and investor protections. Ms. Lipsen has received prominent recognition and numerous awards for her advocacy on behalf of injured Americans, including, among others, the “Senator Paul Wellstone Award” from U.S. Action, the “Esther S. Weissman Eternal Optimism Award” from Workers’ Injury Law & Advocacy Group (WILG), and the Marie Lambert Award. She is regularly recognized in leading Capitol Hill and legal publications such as The National Law Journal as one of Washington’s most influential women lawyers, The Hill as a top lobbyist in recognition of her outstanding professional achievement and Roll Call as one of Washington’s most effective lobbyists. Following the tragedy of September 11th, she led the fight for enactment of a compensation program for the victims of the terrorist attacks on the World Trade Center and the Pentagon. The September 11th Victims Compensation Fund established by Congress allowed thousands of families to recover compensation for the loss of their loved ones. Following enactment of the Fund, Ms. Lipsen’s leadership helped ATLA establish Trial Lawyers Care, the nation’s largest-ever pro-bono legal representation program. Prior to joining AAJ, Ms. Lipsen directed the legislative advocacy program for Consumers Union, the publisher of Consumer Reports. In that capacity, she represented consumers on Capitol Hill on a host of issues including antitrust, insurance reform and health care. Ms. Lipsen earned her B.A. from the University of Wisconsin and her J.D. from the Antioch School of Law.

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Peter Perlman During his career, Peter Perlman has worked toward making a safer society by challenging defective and dangerous products. His cases have received national exposure, and he has won more than 60 multimillion-dollar verdicts and settlements on behalf of his clients. He has served as a former president of AAJ, Public Justice, and the Civil Justice Foundation. Peter served as an adjunct professor at the U.K. College of Law for 25 years, and has been inducted into the Law School Hall of Fame. His endowment has provided scholarships for 35 students since 1999. He has also established memorial scholarship funds arising out of successful litigation for the families of wrongful death victims. He has been inducted into many invitation-only professional associations including the Inner Circle of Advocates, International Academy of Trial Lawyers, International Society of Barristers, American Board of Trial Advocates, and most recently, the Melvin M. Belli Society. He also served two terms as a trustee of the National Judicial College. The Southern Trial Lawyers Association has honored Peter with its “Warhorse Award” and with the prestigious “Tommy Malone Great American Eagle Award.” He was the 2015 recipient of the “W. McKinley ‘Mickey’ Smiley, Jr. Lighthouse Award.” He has received the highest awards given by many national trial lawyer organizations including the AAJ “Leonard Ring Champion of Justice;” the Kentucky Justice Association Lifetime Achievement Award (the only person to be so honored); and the Fayette County Bar Association annual Henry T. Duncan Lifetime Achievement Award. He received the “Compassionate Gladiator Award” from the Florida Justice Association. He has written many publications for trial lawyers, including the book Opening Statements Annotated. In his community and state, Peter has been involved in numerous charitable activities. He chaired a fundraising effort to build a specialized playground for handicapped children at Cardinal Hill Children’s Hospital in Lexington. He was president of Junior Achievement, and has served on many civic boards.


Harvey Weitz With over 100 cases resulting in verdicts in excess of $1 million each, Harvey Weitz has concentrated his practice in the areas of civil law, trial practice, medical malpractice, and product liability. A graduate of Brooklyn College of the City University of New York, Harvey received his Juris Doctor from Brooklyn Law School where he serves as an Adjunct Professor of Trial Advocacy. Mr. Weitz served as president of the New York State Trial Lawyers Association, a Dean of the New York State Trial Lawyers Institute, national secretary of the Association of Trial Lawyers of America, and president of the New York State Chapter of the American Board of Trial Advocates. A member of the Inner Circle of Advocates, an organization of the top 100 lawyers in the country, he is also a member of the International Academy of Trial Lawyers, the International Society of Barristers, the New York State Bar Association, and the Association of Trial Lawyers of America. Whether he is being described as “the trial lawyer’s lawyer,” being named Trial Lawyer of the Year, or setting records for the highest verdict wherever he has tried cases, Mr. Weitz’s extraordinary skill as a plaintiff’s advocate is apparent. Mr. Weitz has repeatedly attained verdicts and settlements of several billion dollars. Mr. Weitz was named to 2010 New York Super Lawyers for personal injury plaintiff — general. Only 5% of lawyers in the state of New York are chosen for this esteemed honor each year. In addition to his professional duties, he has authored and coauthored several books, articles, and periodicals. He has served on various committees of the New York State Bar Association, the Association of Trial Lawyers of America, the Association of the Bar of the City of New York, the Society of Medical Jurisprudence and other local bar associations.

The Trial Lawyer x 37


UNSEALED REMINGTON DOCUMENTS POSTED BY PUBLIC JUSTICE SHOW DEFECTIVE TRIGGERS IN MILLIONS OF RIFLES COULD FIRE ON THEIR OWN Gun Owners Need To Claim Free Trigger Replacements ASAP By Arthur Bryant Over 133,000 previously-sealed Remington documents are now available to the public on a new website created by Public Justice, www.remingtondocuments. com. The documents show the company knew for decades the trigger in the Remington Model 700 — the most popular bolt-action rifle in America — and a dozen other Remington models could fire when no one pulled it. Remington denied that fact (and still denies it), hid the truth, and kept selling the rifles. As a result, hundreds of people were maimed or killed — and millions are still at risk. Public Justice won access to these documents by threatening litigation to unseal them. In December 2015, based on the documents, CNBC published an investigative report and aired a one-hour special, Remington Under Fire: The Reckoning, exposing Remington’s conduct and the guns’ dangers. Public Justice launched its new website at www. remingtondocuments.com last November to make the documents available to all. On February 19, 2017, CBS-TV’s 60 Minutes broadcast a report on the Remington 700, citing key documents and demonstrating Remington’s willingness to sacrifice lives to maximize its profits. 38 x The Trial Lawyer

The 60 Minutes report focused on 15-year-old Zachary Stringer, who was convicted of killing his 11-year-old brother, Justin, in 2011 with a Remington 700. Zachary swore that the gun went off on its own, but no one believed him. Remington said the gun could not fire without a trigger pull. Zachary’s conviction was upheld by the Mississippi Supreme Court. He had served five years in prison when his father, Roger Stringer (who had believed in horror that his son Zachary killed his brother Justin) learned that the Remington 700 could fire without a trigger pull. Over 7.5 million Remington 700 and other rifles with this defective trigger are now in gun owners’ hands. A proposed settlement in Pollard v. Remington Arms, a national class action in federal court in Kansas City, MO, would provide free trigger replacements to all owners of Remington Model 700, Seven, Sportsman 78, 673, 710, 715, and 770 rifles who file claims. Everyone who owns one or more of these rifles should stop using them and submit a claim for each rifle. Details about the proposed settlement are provided on Public Justice’s new Remington Rifle Trigger Defect Documents website and on the proposed settlement


website, www.remingtonfirearmsclassactionsettlement.com. U.S. District Court Judge Ortrie D. Smith of Kansas City, MO, approved the proposed settlement on March 14, 2017, but expressed concern that only 22,000 of the over 7.5 million class members had filed claims. Objectors and ten state attorneys general had argued the settlement could not be approved because, among other things, the notice sent to gun owners was inadequate. Judge Smith’s decision is now on appeal. In the meantime, all who own these rifles need to know of their danger — and protect themselves, their loved ones, and innocent others. The proposed settlement does not provide a free trigger replacement for Remington Model 600, 660, or XP-100 rifles, which were recalled in 1979. Their triggers can still be repaired for free. Everyone who owns one or more of

these rifles should stop using them, get them repaired for free, and consider filing a claim for the compensation the proposed settlement provides. Go to www.remington. com/support/safety-center/safety-modification-program/ remington-model-600-660 for the Model 600 and 660 recall info and to www.remington.com/support/safety-center/ safety-modification-program/remington-model-xp-100 for the XP-100 recall info. The proposed settlement also does not provide a free trigger replacement for Remington Model 721, 722, and 725 rifles, which have the same defective trigger, too. Everyone who owns one or more of these rifles should stop using them (unless you get the defective trigger fixed) and consider filing a claim for the compensation the settlement provides.


Public Justice won public access to the documents it posted on the web — and all of the documents in all lawsuits ever filed against Remington over these defective triggers — with the help of the plaintiffs’ lawyers in Pollard v. Remington Arms. Public Justice sought the documents, in part, so Richard Barber of Montana — an NRA member and avid sportsman whose 9-year-old son, Gus Barber, was shot and killed when a Remington 700 fired without a trigger pull in 2000 — could avoid Remington’s threat to sue him for contempt of court if he disclosed what he knew about the trigger’s defects. Public Justice’s Remington Rifle Trigger Defect Documents website includes PowerPoints and timelines highlighting key documents and exposing Remington’s willingness to endanger its customers, their friends, and families to maximize profits. They reveal what Remington knew and what the company did — and didn’t — do, including decisions not to recall the rifles because it would cost too much and to destroy test results. They shine a light on the company’s response to customer complaints, trigger tests that failed, and Remington’s efforts to mislead its customers, the press, and the public. The PowerPoints and timelines were provided by 40 x The Trial Lawyer

Timothy Monsees of Monsees & Mayer, PC, in Kansas City, MO, attorneys experienced representing people injured by the Remington 700 and other rifles with the defective trigger. Elijah Ltd. designed and is hosting the website. Public Justice was not involved in negotiating and has taken no position on the proposed settlement in Pollard v. Remington Arms. We believe strongly, however, that, to the extent that the proposed settlement leads to the replacement of the defective triggers in these rifles — or stops these rifles from being used — it will have performed an important public service. If you own one of these rifles or know someone who does, please visit Pubic Justice’s new Remington Rifle Trigger Defect Documents website and take action, immediately. Arthur Bryant is the Chairman of Public Justice, a national public interest law firm created by trial lawyers and supported by — and able to call on — over 2,500 of the top plaintiffs’ lawyers in the country. Public Justice pursues high-impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability, and challenge predatory corporate conduct and government abuses. For more information or to become a member, see www.publicjustice.net.


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DEREGULATION

Paved The Way For Airline Aggression By Mike Papantonio

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According to airlines’ Contract of Carriage — a document that is several dozen pages long and typically about 40,000 words — the airline has ultimate authority to prevent you from boarding a plane for anything ranging from how you are dressed to a lack of personal hygiene.

United Airlines found itself in the headlines for all the wrong reasons recently, when video emerged of a man being forcibly removed from one of their aircraft after he refused to give up his seat to a United employee. The video footage sparked a national dialogue about the behavior of airlines, and more importantly, it’s helped to drive a conversation about the rights of airline passengers. By now, most people are familiar with the story of Dr. David Dao. We’ve seen the video of him being forcibly removed by an airport security employee from a United Airlines flight; his face bloodied from the encounter, all because he refused to “volunteer,” as the airline put it, to give up his seat for a United employee. Just a few weeks before this incident, two young women were denied entry onto a United Airlines flight because they were wearing leggings. Stories of people being denied entry onboard an aircraft are all too common, but Dr. Dao’s situation was especially appalling due to the fact that he was violently removed from an airplane that he had already boarded — an act that is typically reserved for people who pose a threat to the safety of other passengers. But there’s an uglier side to this story — one that most people don’t realize. And that is that the airline industry is set up in such a way that they can remove anyone, at any time, for virtually any reason. According to airlines’ Contract of Carriage — a document that is several dozen pages long and typically about 40,000 words — the airline has ultimate authority to prevent you

from boarding a plane for anything ranging from how you are dressed to a lack of personal hygiene. And when you buy your airline ticket, you are essentially signing an agreement saying that you accept these terms and will abide by them. The story really begins in the late 1970s, when the airline industry was able to convince Congress and former President Carter to deregulate their industry. When this happened, authority to regulate airlines shifted mostly to the industry itself, with federal laws covering only a few simple items related to air travel. For example, the No Smoking laws for airlines are from the federal government, and the government makes sure that the airlines don’t engage in deceptive practices or fraud and that they honor the No Fly List, but that’s about the extent to which they interfere with the business of airlines. When it comes to denying admission or raising prices or even reducing the width of a seat, those are decisions that the industry gets to make for itself. But one of the biggest gifts that the airline got from deregulation was that they were able to bully smaller airlines out of business, and as a result, there are only four major airlines operating in the United States today. So when you hear people talking about boycotting United Airlines over their behavior, you have to understand that in many instances that simply isn’t an option. The airlines have made it to where they can have a monopoly on air travel, and there’s nothing we can do about it.

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DEATH of

The American Trial Lawyer By Robert Eglet

Thomas Jefferson stated, “I consider [trial by jury] as the only anchor ever yet imagined by man which a government can be held to the principles of its constitution.” Our country’s citizens have fought and died for our right to a trial by jury. The deprivation of the right to trial by jury was of such great concern to our founding fathers that it was specifically listed as one of the grievances against King George III in the Declaration of Independence as justification for going to war in 1775. The right to a jury trial in civil cases is guaranteed by the Seventh Amendment to the United States Constitution, and the constitutions of virtually every state in the union. The right to trial by jury in both criminal and civil cases is deeply ingrained in our sense of justice. But, while these constitutional rights have remained in place since 1791, how civil cases are resolved has and continues to dramatically change.

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The Trial Lawyer x 47


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Over 225 years ago, James Madison observed that, “trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

IF WE STILL BELIEVE THIS TO BE TRUE, OUR LIBERTY IS IN JEOPARDY.


Chief Justice William Rehnquist wrote: “The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign… juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.” Over 225 years ago, James Madison observed that, “trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” If we still believe this to be true, our liberty is in jeopardy. The civil jury trial is disappearing and appears to be rapidly approaching extinction, and with it will bring the extinction of the American trial lawyer.

The Trial Lawyer x 49


PERCENTAGE OF CIVIL CASES RESOLVED BY TRIAL

20.0%

20%

18.0% 16.0%

15.2%

14.0% 12%

12.0% 10.0%

9.1%

8.0% 6.1%

6.0% 4.0%

3.5%

2.0%

1.8% 1%

0.0% Mid 1930's

1940

1952

1972

1982

1992

2002

THE NUMBERS We have witnessed a near century-long decline in the ratio of civil cases resolved by trial, and a 30-year decline in the absolute number of civil jury trials in this country. Since the mid 1930s, the proportion of civil cases concluded by jury trial has declined from 20 percent to well below one percent in both our state and federal trial courts. While that 20 percent was a minority of cases, it was nevertheless a substantial minority, and a significant amount of a civil practice was trial practice. By 1940, the ratio of civil cases resolved by jury trial had fallen to 15.2 percent. By 1972, it was only 9.1 percent. Two decades later, the percentage of civil cases being resolved through jury trial was only 3.5. By 2002, the ratio of jury trials to civil case resolutions had decayed to a dismal 1.8 percent. In 2005, jury trials as a proportion of civil case dispositions waned below 1 percent where they continue to decline toward an effective rate of 0 percent.

“Since the mid 1930s, the proportion of civil cases concluded by jury trial has declined from 20 percent to well below one percent in both our state and federal trial courts.�

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2005

.25% 2016


FEDERAL COURT CIVIL TRIALS

1991

2010

STATE COURT CIVIL TRIALS

1991

2010 Federal Court

Tort case trials have declined at an even more rapid and exponential rate over the past 50 years. In federal court in 1962, one out of every six tort cases filed was resolved by jury trial. By 2002, only one in every 46 tort cases filed went to trial. In 2010, the trial ratio fell dramatically to less than one in every 136 tort cases filed. Today, it is believed to be fewer than one out of every 200 tort cases filed in federal court ever reaches trial. Over the past 50 years, civil actions filed in Nevada state and federal trial courts have significantly increased. Yet, the number of civil actions resolved by jury trial has diminished at an alarming rate and continues to decline, year after 52 x The Trial Lawyer

year, in both the proportion of jury trials to case filings and the absolute number of jury trials. In 1962, there were 5,802 civil trials in our federal courts. By 2002, the number of civil actions resolved by trial dropped by 22 percent to 4,569; despite an overall increase of 514 percent in the number of civil action filings during the same period of time. Between 1991 and 2010, our federal courts saw the absolute number of civil jury trials decline by an astonishing 52.3 percent. State Court The story is the same in our state trial courts, where the overwhelming majority of civil jury trials occur. During the same 19-year period (1991–2010), the absolute number of civil jury trials plummeted 52 percent, as well. In 1992, in our nation’s 75 most populous counties, there were 22,451 jury trials. By 2001, that number had plunged to 11,908, and in 2005 there were only 10,813 jury trials…fewer than half the number from 19 years earlier. By 2002 only 0.6 percent of all civil cases in our state courts were resolved by jury trial. Today, the downward spiral continues toward zero. In 2012, the percentage of civil cases that went to trial in Texas was 0.4 percent. In one of the major counties in Texas, where there are 14 dedicated civil district court trial judges, there were only 48 civil jury trials in 2014 — fewer than four jury trials per judge. In the entire state of Iowa during 2014 there were only 184 civil jury trials, and in 13


Iowa counties there were no jury trials whatsoever…civil or criminal. In 61 of Iowa’s 99 counties there were three or fewer jury trials during the entire year. In Oregon, by 2008 the percentage of civil cases resolved by jury trials had dropped to 0.4 percent. In Tennessee, the number of jury trials in state civil trial courts fell from 2,000 in 1990 to 1,000 in the year 2000, to 384 in 2008. In Florida’s county civil trial courts, from fiscal years 1986–1987 through 2009–2010, the jury trial rate was effectively zero. In 1986–87 there were 776,904 civil case dispositions and only 108 civil jury trials (0.0139 percent). In 2009–10 there were 2,696,314 civil case dispositions, but only 119 by jury trial (0.0044 percent). In Nevada during 2014 there were 49,458 total civil case dispositions, but only 176 civil jury trials, a dismal 0.35 percent jury trial rate. (What is particularly disturbing about that percentage is that it is above the national state average, which hovers around 0.25 percent.) The dwindling number of civil jury trials in this country has been steep and dramatic. Every courtroom lawyer in America knows, empirically, that there has been an

OVER THE LAST 50 YEARS CIVIL ACTIONS FILED IN STATE AND FEDERAL COURTS

YET

CIVIL ACTIONS RESOLVED BY TRIAL

FEDERAL COURT JURY TRIALS 300,000 258,876 250,000 200,000 514%

150,000 100,000 50,000 0

exponential decline over the past 50 years across all state and federal courts in both the percentage of civil cases resolved by jury trial and a significant decline in the absolute number of civil jury trials over the past 30 years. We have gone from a civil justice system where jury trials were routine to one where jury trials have become nearly extinct. THE CAUSES The list of causes responsible for the alarming decline of civil jury trials includes: the rise of alternative dispute resolution (ADR); escalating costs of litigation, particularly the extraordinary expansion of discovery that has added unnecessary costs to trying cases; the adoption of a judicial philosophy of discouraging trial; the enormous increase in granting summary judgments, particularly in our federal courts; the expansion of federal pre-emption; and tort reform, including the capping of damages and attorneys fees, as well as giving certain people or entities immunity, which has lead to a lack of trial skills or experience of the current generation of lawyers. ADR Historically, most civil cases resolve by settlement and will continue to do so; however, the privatization of dispute resolution through arbitration may be the largest contributor to the disappearance of the American jury trial. This has disturbing consequences. In private arbitration, the pleadings, testimony, documents and findings are all hidden from public view. Both the public and the press are barred from the arbitration room. ADR is largely unregulated and in nearly all cases, private. Today, nearly every consumer and employment contract requires the consumer and employee to waive their Seventh Amendment constitutional right to jury trial and to resolve any dispute by private binding arbitration. Our Supreme Court has undermined Americans’ Seventh Amendment right by its erroneous decisions interpreting the Federal Arbitration Act to substitute juries with arbitrators whenever possible. There are important and inappreciable social benefits that result from public trials. Trials effectuate positive change. They engender manufacturers to make safer products. They encourage healthcare providers to provide safer care. They inspire motorists to drive with more caution. Trials force employers and governmental entities to create and implement affirmative policies. Trials bring the light of public scrutiny to what private arbitrations keep hidden in the shadows.

50,320 5,802

1962 Civil Dispositions

4,569

2002 Jury Trials The Trial Lawyer x 53


Litigation Costs and Discovery

FEDERAL TRIALS OF TORT CASES

Pre-trial discovery used to consist 1/6 of receiving a few hundred pages of documents, serving at most 20 interrogatories and taking a couple of one-hour depositions. During my first four years of practice, my boss and mentor Mitch Cobeaga would come into my office on a Friday afternoon about once a month and ask if I had a “clean suit.” My response was always “yes,” although I doubt my response would have mattered. Mitch would then drop a file on my desk (this was back when we 1/46 used paper) and say, “Good. You’re going 1/136 1/300 to trial Monday.” Back then, the file would nearly 1962 2002 2010 2016 always consist of merely the plaintiff’s medical records, answers to 20 stock interrogatories, and a 40–50-page deposition of the plaintiff. Granted these were not large cases, but we did not take the depositions of the healthcare providers, the eyewitnesses or the traffic officer, and the plaintiff’s lawyer did not take the deposition of the IME physician. No one hired an accident reconstructionist, biomechanical engineer or a slew of other experts, and we simply tried the case and learned to think on our feet. Now, discovery consists of receiving multiple disks or an external hard drive with millions of pages of documents (granted, the types of cases I am trying now are much different); multiple experts’ reports; countless volumes of written discovery; and endless depositions of every single person who might have some piece of information that could possibly be relevant to the case. Pre-trial discovery has unfortunately Judicial Philosophy Against Trying Cases and unnecessarily become too expensive, resulting in lawyers trying far fewer cases. Colossal pre-trial discovery is now Many judges in both state and federal courts have embraced the lifeblood of “litigators,” the term adopted by discovery/ a philosophy of discouraging trials and view themselves motion lawyers who do not try cases. The unprecedented solely as case managers. Many judges see jury trial as a cost of discovery discourages clients and their lawyers from burden or a “failure” of the parties to reach a resolution. going to trial. Clients are also pressured into ADR by their Rules, policy statements and judicial expectations in many “litigators,” who are too inexperienced or too scared to go jurisdictions place emphasis on how quickly they dispose to trial. What does it say about the state of the American of cases, resulting in some judges pressuring parties to settle trial lawyer that many partners in litigation firms have never and adopting the view that a case going to trial is a failure of actually tried a jury trial to verdict? the system. They often profess, “a compromised settlement is always better than a great trial result.” Is that really what our country’s founders believed?

FEDERAL TRIALS OF TORT CASES

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The Rise Of Summary Judgment The rise of the use of summary judgment to dispose of cases by our judiciary has added to the decline of jury trials. There is an argument that some trial judges utilize summary judgment to manage their docket and regularly take triable cases away from juries. In the federal courts, more cases today are disposed of by summary judgment than through jury trials. Only two decades ago jury trials occurred at twice the rate that summary judgment was granted. Federal Pre-emption For centuries, federal pre-emption was narrowly construed. Today, however, it is applied broadly, stripping state court juries of their traditional areas of jurisdiction and replacing them with federal standards that provide scant, if any, protection for people, especially in the area of mass torts and product liability cases. Today, cases of injured consumers are swept into multidistrict litigation (“MDL”), which is managed by the federal courts. The MDL structure, while not without benefits in some cases, usually results in extensive delays that cause most consumers to choose (or be essentially forced) to settle cases without a jury trial. Tort Reform For decades, big business and the insurance industry have demonized our civil juries while most lawyers and the judiciary did little to defend our Seventh Amendment right. Many civil defense lawyers propagated the myths manufactured by the chamber of commerce and their allies of the “litigation explosion” and “run-away juries.” It is no coincidence that the steep decline in the absolute number of jury trials started during the same years these myths gained wide acceptance. As a result, Congress and legislatures throughout the states have restricted 75 access of our citizenry to their constitutional right to jury trial through so called “tort reform,” by 25000 placing caps on damages and additional burdens on the ability of tort victims to seek redress for their 20000 injuries. A civil justice system without a jury serves business interests and the elite…at the expense of 15000 the people. THE CONSEQUENCES Civil jury trials have become so rare that most young lawyers have never had the experience of trying a civil case before a jury; and, they never will. It is undeniable that the average lawyer of today has less trial experience than the average lawyer of yesterday. What may be of greater

concern is that within the lawyer population, the absolute number of experienced trial lawyers continues to dwindle. Americans typically (and rightfully) get upset with the prospect of infringement upon their constitutional rights, such as their First Amendment freedom of speech or religion rights, or their Second Amendment right to bear arms. Yet we are witnessing our Seventh Amendment right to a civil jury vanish with imperceptible protest. For those of us who believe that a jury trial is a fundamental and important civil right and that it evidences the very best of our government, this phenomenon is frightening. Trial strategy and cultivation of jury trial skills are quickly and quietly becoming relics of the past. Lack of genuine trial experience increases the probability that a lawyer will make errors in the early stages of a case, because it is difficult to understand the importance of each step of building a case unless you understand the whole picture. It is like trying to put together a jigsaw puzzle without the picture on the box lid. In the absence of trial experience that teaches lawyers to think on their feet, they will be unable to deal with the rare case that is tried before a jury. The failure of young trial lawyers to acquire trial experience essentially guarantees that there will be no next generation of great American trial lawyers. Exacerbating this problem is the practice by most lawyers of making settlement decisions based on historical data from other settlements, creating a closed feedback loop or echo chamber that threatens to move our legal system further away from normative notions of justice amongst its citizens. With a significantly depleted civil jury bar, the valuation of cases is often left to private mediators or arbitrators, most of whom have little to no recent trial experience, giving them no understanding of case values. This is accelerating a downward spiral in which “trial” lawyers with little to no trial experience settle cases with no real experience from which to determine

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the value a jury would place on their case. This produces a system in which cases do not settle for their true value. Instead, they settle for the “going rate” established by past settlements of similar cases in which other inexperienced “trial” lawyers and mediators bargain for settlements that have no relation to how a jury would value the case because they have not seen enough jury trials to tell them how a jury would value the case. This problem will persist if there are not enough jury trials to tell us how juries value certain cases in the community. “Because securities class actions rarely if ever go to trial, settlement judges, like lawyers, have little relevant experience to draw on other than their knowledge of settlements in similar cases … their role becomes not to increase the accuracy of settlements, but to provide an impetus to reach some settlement. In the absence of information about how similar cases fared at trial, settlement judges could be an important force in maintaining a “going rate” approach to settlement.” Janet Cooper, Do The Merits Matter? A study of settlement of securities class action, 43 Stan. L. Rev. 497,567 (1991). There is a startling percentage of cases settling in error. National statistics establish the percentage of error for plaintiffs is 61 percent, versus a defendant’s error rate of only 24 percent, with only 15 percent of civil cases settling for the proper amount. The mean cost of error for plaintiffs is $43,100 per case, representing billions of plaintiffs’ lost dollars… compensation to which they are entitled. Inexperience leads to fear. Fear of going to trial adds pressure to a downward spiral of fewer trials. Add to that pressure the escalating costs of discovery and trial court judges placing far too much pressure, far too often, on parties and lawyers to settle, and the result is the extraordinary crisis of the death of the American trial lawyer. This begs the question, if we are raising a new generation of “trial” lawyers for whom trial is merely a theoretical concept, do lawyers who have little or no trial experience have an ethical obligation to inform the client who is about to hire them as a “trial” lawyer of their lack of trial experience? The vanishing number of jury trials presents a paradox. Lawyers regularly settle cases because they have neither the experience nor the skills to try them. This results in even fewer and fewer cases being tried. With fewer trials, fewer lawyers will gain any meaningful trial experience. What happens when all the lawyers with any meaningful trial experience die off? This alarming trend represents an erosion of the founding principles of our country. As Thomas Jefferson recognized, a jury of our peers is the most effective check against state power and has been the cornerstone in our judicial system since our nation’s birth. It legitimizes the law by providing opportunities for citizens to validate civil statutes and common law, and to apply them to the facts of specific trials, creating a common sense of justice. Additionally, the ever-shrinking number of jury trials limits access to justice for many.

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The disappearance of civil jury trials affects not just lawyers, but affects our clients as well as our citizenry. Fewer trials mean fewer citizens participating in jury service, and jury service is the most meaningful way for people to directly participate in our country’s democratic governmental decision making. For most Americans, jury service is the only opportunity they will have to play an important role in governmental decision making, other than casting their vote in an election. Many citizens feel disenfranchised to varying degrees, feeling they lack adequate representation, and as a result they are distrustful of government and its representatives. The value of having the public involved in our justice system is immeasurable, and jury service educates the public about the justice system, the role of the rule of law, and the juror’s role in the system. U.S. District Judge William G. Young in his “Open Letter to U.S. District Judges” said it best: Our willingness, as a society, to drift from the use of juries reflects a failure in the understanding of the jury’s essential function in our American democracy. The jury system is direct democracy at work . . . . When people recognize that they have been cut off from their opportunity to govern directly through citizen juries, the sense of government as community — as a shared commonwealth — is severely diminished . . . the moral force of judicial decisions — and the inherent strength of the third branch of government itself — depends in no small measure on the shared perception that democratically selected juries have the final say over actual fact-finding. The Federal Lawyer, July 2013, 30, pg. 32

American citizens must remain a part of the judicial process so that they do not lose faith in their community or their country. THE END? Several years ago, the journal of the American Bar Association in its section on litigation published the following obituary: The American Trial Lawyer, who enhanced the lives of so many Americans and made the United States . . . a just nation, passed away recently. Although a precise age is uncertain, the American Trial Lawyer was believed to have been at least 371 years old at the time of death. The cause of death is uncertain . . . but was not sudden. In fact, the American Trial Lawyer had been placed on the endangered species list a decade or so before death. The autopsy determined that the American Trial Lawyer most likely died from a long term, progressive illness that began more than 40 years ago . . . and was exacerbated by a genetic mutation of the civil justice system that came to

be known as arbitration and mediation . . . and the spread of inaccurate information about frivolous lawsuits and verdicts like the McDonald’s ‘Hot Coffee’ case. The disappearance of the civil jury trial poses a clear and present danger to our civil justice system and to our democratic society. We are now falling deeper and deeper into a chasm of privatization of our civil justice system through private arbitration and other forms of ADR. I believe in the jury trial. The jury trial, with all its faults, is our purest form of self-government. I believe jurors work diligently to reach the right decision, and leave feeling good about their service and about the justice system. The loss of that citizen participation in government cannot be measured in dollars. It means fewer and fewer of our citizens will have the opportunity to participate in our American experience of self government that our founders worked and fought so hard to establish. I believe that through the American jury, decisions of justice are vested where they belong: with the governed. If this year’s presidential election has taught us anything, it is that a large segment of the American population trusts neither the current executive in chief nor the legislative branches of our government. If we do not collectively start finding ways to preserve the civil jury trial — not just in right, but in reality — how long will it be before the American people no longer trust the country’s judicial branch and start viewing judges with the same attitude they view the elected members of the other branches of government? This implicates the “bulwark against tyranny and corruption” about which Justice Rehnquist spoke. American citizens must remain a part of the judicial process so that they do not lose faith in their community or their country. Are we witnessing the end? Will we continue to passively watch the ratio and absolute number of jury trials decline to zero? If we do, will there be a need for trial courts and trial judges? Will the loss of jury trials result in the loss of a continuous flow of relevant appellate opinions based on jury trials? Will we allow ours to be the last generation of American trial lawyers? Robert Eglet has tried more than 120 civil jury trials to verdict, including some of the largest personal injury verdicts in the country in 2007, 2010, 2011 and 2013. Eglet was named National Trial Lawyer of the Year in 2013 by the National Trial Lawyers and National Lawyer of the Year in 2010 by Lawyers USA. He has been honored twice by the Nevada Justice Association as Trial Lawyer of the Year (2005, 2012) and in 2013, Eglet received the National Thurgood Marshall Fighting for Justice Award. The National Law Journal has named Eglet’s firm as one the “12 Best Plaintiff’s Law Firms in the Country” and one of the “50 Best Trial Firms in America.” Eglet lectures regularly on trial practice and innovation in the courtroom.

The Trial Lawyer x 57


The Republican Healthcare Con Is Part Of The GOP Long Game By Thom Hartmann

While Democrats are jubilant that the GOP passed a terrible healthcare/tax-cut bill through the House, which they think will cause voters to reject the GOP in 2018, it’s a very, very premature celebration. The Republicans are playing a longer game here, one based on a time-tested strategy first explicated by Machiavelli and fully put into place by Joseph Goebbels in the early 1930s, then fine-tuned by Ronald Reagan through the 1980s. That strategy is not only one the GOP has successfully used many times in the more recent past, from Nixon’s “secret plan to end the Vietnam war” to Reagan’s “reforms” of tax law, but one that they’re clearly betting will continue to work for them (particularly with the help of Fox and right-wing hate radio). Step I is to use the classic Goebbels “Big Lie” technique. That was on full display in the White House PR stunt after the House vote — lie about lowering premiums, lie about expanding availability, lie about preexisting conditions, lie about how Obamacare is “failing.” (Think Bush with Iraq, or the “Clear Skies Initiative,” etc.) To make sure it sticks, Trump had Republican after Republican step up to the microphone and clearly repeat the Big Lies. Step II then becomes clear. The bill goes to the Senate and no matter what happens there, complain that it’s being “watered down.” This sets up the perfect next part of the Goebbels/Machiavelli strategy: claim victimhood, and place blame on those awful (and often racially different from all those white people at the White House ceremony) Democrats. Because the Senate prevents some of the true horrors of the House GOP’s plan from going into law, GOP voters don’t realize (and Fox will never tell them) that it was really all just a hustle to satisfy the GOP billionaire donor class. And because of the Big Lie, every good thing that’s still in Obamacare is thought, by Republican voters, to be the result of GOP efforts, as they now “own” healthcare. At the same time, they’ll claim Democratic obstruction is why whatever “bad” things happen happened. (And Drudge, et al., will be sure to find some horror stories in the fall of 2018.) Step III happens in 2018: go after every Democrat running for the House or Senate for “obstructing Republican improvements and progress” on healthcare. It’s another Big Lie, but like Reagan’s Big Lies about the evils of unions, the benefits of trickle-down economics, the urgency of exploding privatization of the military, not raising the Social Security retirement age, etc., it’ll be believed by enough people to hold onto the House and Senate. The proof that this strategy could work in this case is that it’s already being used, with success, to obscure the true reason Republicans are trying so hard to “repeal and replace” Obamacare. Here’s what’s really driving the GOP: The subsidies

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for middle-class workers in Obamacare are largely funded by an almost three percent tax increase on capital gains income (and a small increase on the ordinary incomes of people in the top one percent). This special 20 percent maximum capital gains tax rate is available only to people who “earn” their money with money/investments (rather than working and drawing a paycheck), and thus is almost exclusively paid at the full 20 percent rate only by the very, very, very rich. And that 3.8 percent top-end rate addition was a functional almost-15 percent tax increase on most billionaires. They are not happy, and they fund the GOP and its various corporate media propaganda arms. But because the corporate media won’t explain this (“it would seem partisan to point out facts inconvenient to Republicans,” they whine), most Americans don’t realize that the whole “healthcare debate” has little to do with healthcare; it’s really about cutting that 15 percent increased Obamacare tax on top-end capital gains income. Because Republicans keep repeating the Big Lie that they’re trying to get “more and better and cheaper” healthcare for Americans, most Americans don’t realize it’s really about a tax cut for the GOP donor class. The success so far of this first half of the Big Lie technique should warn us about the potential for GOP success with phase two, which begins now. Fox News is enthusiastically repeating the Republican lies from the Rose Garden, and right-wing hate radio is falling into line. Republican voters who live in the right-wing media bubble will absolutely believe these lies. The only hope for Democrats to disrupt this process is to challenge the Big Lie and call it exactly that. The message needs to be simple — “It’s a Big Lie, it’s really about cutting taxes on billionaires!” — repeated over and over and amplified by every media available, as most of the corporate TV media won’t report on this in any honest way. The entire agenda of the GOP has been, since the Reagan revolution (and, arguably, since the election of Harding, with the exception of Eisenhower), to exclusively serve the interests of the top one percent, while bringing along the rubes with “god, gays, and guns.” And Democrats, while tacking toward the interest of the working class, need to point that out at every opportunity. “Trumpcare: The Big Lie” could be turned into the political equivalent of a bumper sticker and put everywhere. And the lies from the Rose Garden need to be challenged now, tomorrow, and every single day for the next two years by every elected Democrat in America by pointing out the reality of what’s happening. Otherwise, get ready for another three years of GOP rule.

The Trial Lawyer x 59


DON’T FALL FOR BIG PHARMA’S SCARE TACTICS By Martha Rosenberg

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Long before the Internet and direct-to-consumer advertising, the

medical profession tried to reassure people about their health concerns. Remember “take two aspirins and call me in the morning?” Flash forward to today’s online “symptom checkers” — quizzes to see if someone has a certain disease and exhortations to see their doctor even if they feel fine. Once Pharma discovered that health fears and even hypochondria sell drugs, there seems to be no end to the new diseases, symptoms and risks people need to worry about. In fact, since drug ads began on TV, Americans take so many drugs it inspires satirical T-shirts like the one that says “I take aspirin for the headache caused by the Zyrtec I take for the hay fever I got from Relenza for the uneasy stomach from the Ritalin I take for the short attention span caused by the Scopoderm I take for the motion sickness I got from the Lomotil I take for the diarrhea caused by the Xenical for the uncontrolled weight gain from the Paxil I take for the anxiety from Zocor I take for my high cholesterol because exercise, a good diet and regular chiropractic care are just too much trouble.”

Here are some of the ways Pharma uses fear to keep the public buying drugs. 1. Fear of Aging and Losing Sex Appeal

3. Fear of New Diseases

5. Fear That Your Drug Isn’t Working

Hormone replacement therapy which millions of women took until 15 years ago was officially marketed to stop hot flashes and keep bones strong. But unofficially it was marketed as a way of staying young and sexy and marketed by glamorous models and actresses. Early HRT ads told women they had “outlived their ovaries” and not kept up with their husbands who wanted younger looking women. More recently, “Low T” drug advertising tells men the same thing. According to Pharma, people don’t lose hormones because they age; they age because they lose hormones.

From the aggressive marketing of Shift Work Sleep Disorder and Non-24hour Sleep Wake Disorder to Exocrine Pancreatic Insufficiency (EPI), Pharma raises fears about obscure diseases that are so rare they would never be advertised unless Pharma were trying to create “demand” for them. Humiramaker AbbVie, in addition to raising “awareness” about EPI, warns people their back pain could really be ankylosing spondylitis.

Adding a second or more drugs to a first one maximizes Pharma revenue. But is it ethical? If a first drug is not working why take it? Maybe you never needed it. In past years, campaigns told people to add Abilify or Seroquel to their antidepressant to make it work better. Pharma-funded doctors simultaneously reclassified depression as a life-long and even progressive condition — though it was considered neither before expensive drugs to treat it emerged. Having a progressive condition that is not being treated increases the “fear” sell of course.

2. Fear of Everyday Symptoms Once upon a time people with heartburn took Tums. Alka-Seltzer or Maalox and vowed not to eat so much. They did not worry they really had Gastroesophageal reflux disease (GERD), were on their way to cancer of the esophagus and take proton pump inhibitors like Nexium for the rest of their lives. Similarly, having the blues over problems with marriage, family, jobs or finances was not termed “depression.” Nor were energetic little boys immediately said to be suffering from ADHD.

4. Fear That Your Child Is Not Normal ADHD is not the only way Pharma has medicalized and monetized childhood. Temper tantrums are now called “Disruptive Mood Disregulation Disorder.” Thanks to “pediatric psychopharmacology” children are increasingly diagnosed with oppositional defiant disorders, mixed manias, social phobias, bipolar disorders, conduct disorders, depression and “spectrum” disorders. Children are compliant patients who have no choice but to do what they parents, teachers and doctors tell them. Worse, they stay on the drugs for decades with no way of knowing if they need they them now — or ever needed them.

6. Fear of Silent Diseases According to Pharma ads, just because you have no symptoms doesn’t mean you aren’t suffering from silent conditions. You might be “at risk” of bone loss said ads for anti-osteoporosis drugs like Fosamax, Boniva and Prolia (once the money in hormone replacement ran out). No pill in the history of the world has been as successful as the statin Lipitor with its “Know Your Numbers” TV ad campaign. Yet dietary cholesterol as a strong risk factor in heart disease has recently been questioned. Nor do ads mentions diet and exercise. Such Pharma fear tactics are everywhere and why it is said that the healthiest people are those who do not watch TV drug ads. The Trial Lawyer x 61


REPUBLICANS USE PSYCHOLOGICAL MANIPULATION AND FEAR TO PREVENT ACTION ON CLIMATE CHANGE 62 x The Trial Lawyer

By Farron Cousins


A recent article published in Ars Technica discussed several conservative leaders — ranging from religious figures to former Republican politicians — attempting to convince conservatives that climate change was an issue that needed to be addressed by everyone, not just the liberals in the United States. The article discusses various ways that these conservatives are trying to approach the issue, from citing biblical passages about protecting the earth, to educating conservative voters about the benefits of a carbon tax. The Ars Technica article touched on a very important subject that is too often left out of discussions on climate change: Why is there such a strong divide between Republicans and Democrats about the dangers — or even the existence — of climate change? Polls from recent years have shown that majorities of Republicans, Democrats, and those who don’t describe themselves as either Republican or Democrat all believe that climate change is real. But that’s only based on the question of acceptance of climate science; when you scratch below the surface, party divides become more and more apparent. In fact, as The Atlantic recently explained, pollsters have found that the deeper they get into climate issues, the more likely respondents are to cling to their political party’s ideology: When you start proposing hypothetical policies, the numbers often fall. (50 percent of Americans support or strongly support a carbon tax, according to a study from the University of Michigan and Muhlenberg College.) But when policies aren’t hypothetical — when they’re the status quo — Americans line up behind them. (Almost 70 percent support former President Obama’s Clean Power Plan; roughly the same number want the United States to stay in the Paris Agreement.) If you include a partisan watchword in a question, people start answering through a different frame. They give the answer that matches their affiliation — their societal “team” — even if they may harbor doubts about it. There is a vast partisan disagreement, for instance, on the question of whether scientists near-unanimously agree that human industrial activity is causing global warming. (They do; nearly every study finds unanimity on this issue among scientists. But only 13 percent of self-identified conservative Republicans think that’s the case, as compared to 55 percent of liberal Democrats.) The most obvious, and easiest, answer to the question of why the Republican Party of the United States is more likely to deny the existence of climate change or to acknowledge but ignore it, is the money that the party receives from the fossil fuel industry. According to Open Secrets, the oil and gas industry gave more than $53 million to the Republican The Trial Lawyer x 63


Party in 2016, compared to the $6.2 million that they gave to the Democratic Party. While that money may account for the lack of concern or outright denial of climate change among elected officials, it doesn’t explain the gap between Democrats and Republicans in the voting public on the issue. One possible explanation for why Republican voters are far less concerned about climate change than the rest of the country could be due to the way in which the brain processes fear. Psychological studies dating back to the 1960s have found a link between fear responses and political ideology. They found that children who were more prone to react to fear stimuli versus logical evidence were more likely to grow up and believe in conservative ideals and vote for Republicans. Follow-up studies in the decades since have further supported the theory that typical Republican voters are more likely to respond to fear when voting. This helps explain why 64 x The Trial Lawyer

Republican voters were willing to support George W. Bush in spite of his negative approval ratings in the 2004 general election — they were warned that voting for John Kerry would allow terrorism to thrive. This also explains why many Republicans were against the Affordable Care Act — Obamacare — even though they were the direct beneficiaries of this legislation. They were told by Republican politicians that this legislation would give the government complete control over their healthcare choices and could even lead to the creation of “death panels” to determine which citizens live and die. And Republican politicians are using the same fear tactics when it comes to getting voters to vote against their own best interests on the issue of climate change. For too long, Republican politicians have been feeding the public lies about the need to get rid of “job killing regulations” and reign in “government overreach.” These are phrases that are often used to describe the EPA and the safeguards that are put in place to protect

the environment. When Republican officials frame environmental protections in this way — telling voters that these protections come at the cost of the voters’ own economic security — they are manipulating the immediate fears of voters. If a person is afraid that they may not be able to feed their family next month because they could lose their job due to “government regulations,” they will always place that immediate fear over the “far off” danger of a warming planet. It all comes down to a form of psychological manipulation, where the politicians are trying to play on the immediate fears of the voters — such as economic uncertainty — and getting them to weigh those irrational fears more than the threat of rising sea levels or excessive air pollution. Psychological studies offer a glimpse into how these two fears (fear of a warming planet vs. the fear of economic uncertainty) are at odds: “When we are uncertain … we grab on to anything that answers our


questions, because that sense of knowing affords us a reassuring feeling of control. Control is vital to anyone who is afraid, worried, uncertain … A risk imposed on us feels scarier than when we choose to take it ourselves.” In the example of combatting climate change versus repealing regulations, the “risk” that is put on voters is being put on them by the government, according to politicians, making it more unacceptable than the risk the voter takes by choosing to ignore climate change. Climate safeguards become the bogeyman that conservatives use to manipulate the fears of economic uncertainty, causing voters to vote against their own self-interest. The fact that climate change denying politicians have controlled this narrative is disappointing, considering that the body of available evidence shows that the environmental protections enacted by the government actually create more economic activity compared to removing them, so that economic uncertainty talking point could easily be derailed by opposition using the many studies available showing the net benefit of these safeguards. A recent poll from Yale seems to confirm this theory, as more than half of the respondents said that climate change will harm the country, but fewer than 40% believed that it would harm them personally. So while people may understand that danger is looming, they believe that they are outside of the risk pool. Again, it all comes down to how the issue is framed. While many liberals have been framing the issue as environmental, Republican politicians switched it to an economic issue by claiming that protecting the environment could come at the expense of a voter’s job or their industry, or that it could lead us down a slippery slope of alleged government overreach into our daily lives. There are too few instances where Democrats have attempted to educate the public about the economic benefits of addressing climate change and about the number of jobs that could be created by investing in renewable energy or through increased regulatory needs. The studies back up those claims, there just aren’t enough people making this particular sales pitch to American voters. By allowing climate change denying politicians to hijack the framing of the climate change argument, Democrats have allowed the propaganda to win. Those economic uncertainty fears of the American voters — however wrong they may be — are now cemented into their brains. And as the effects of climate change are beginning to rear their heads on the mainland of the United States, the issue requires a broad coalition of Democrats, Republicans, and everyone in between to band together to fight the misinformation that is being served to us by politicians who are bought and paid for by the fossil fuel industry.

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AMERICANS WANT MORE GOVERNMENT, NOT LESS, BUT IS WASHINGTON LISTENING? By Richard Eskow A recent NBC News/Wall Street Journal poll finds that, in the words of NBC’s Carrie Dann, “a record number of Americans say that the government should do more — not less — in order to solve the nation’s problems.” This is a major change from the 1990s, when most Americans felt that government “does too many things better left to businesses and individuals.” There has even been a significant shift in the last two years alone. In 2015, 50 percent of voters thought the government should do more. Today that figure is 57 percent. Forty-six percent of those polled that year thought government did too much. That figure is now down to 39 percent. More, please The desire for a more active government is, in fact, the highest it’s been since these questions were first asked in 1995. Democratic politicians, take note: As Dann reports, these shifts “have been particularly significant among independents and Republicans.” Contrary to conventional Democratic wisdom, this suggests that moving to the left may not lose these “persuadable” voters at all. They may be more responsive to a well-framed agenda based on an expanded role for government than they would to a ‘split the difference’ centrist approach — one that would also depress turnout among the Democratic base. An activist agenda could help Democrats stay in office, too. A Baylor University study asked the question, “Does more government enhance human happiness?” and concluded, “indeed it does.” “We used four different measures,” the study’s lead author told me in 2014, and “…all four showed the same result: Governments with more intervention in the economy or a larger size of government had happier citizens.” Explaining The Shift There are several possible explanations for government’s growing popularity. First, a rising stock bubble during the 1990s led to an irrational dependence on the private sector to meet social needs. Then, as the Republican Party continued to veer sharply toward the right, most prominent 66 x The Trial Lawyer

Democratic politicians clung to their 90s-era ideological distance from the party’s New Deal orientation instead of making the case for government’s rightful role in society. The financial crisis of 2008 awakened many people to the risks posed by the private sector, and to the need for government services in the wreckage created by Wall Street greed. The Occupy movement triggered an important national dialogue about inequality and the increasing diversion of national wealth to a privileged and powerful few. The Bernie Sanders presidential campaign gave a political voice to this movement during the 2016 campaign. Even Donald Trump was forced to get into the game. He promised to repair American infrastructure and create millions of jobs, said he would renegotiate job-killing trade deals, and insisted that he would not cut Social Security or Medicare. Unfinished Business The Democratic Party’s pre-emptive capitulation to the conservative movement, which began in the 1970s and reached its zenith in the 1990s, left its own social project unfinished. The party’s longstanding goal of providing universal health care was still unmet in 1996, for example, when Bill Clinton prematurely declared that “the era of big government is over.” The United States has fallen far behind other Western democracies on universal healthcare, and on other social programs like family and medical leave and affordable child care. The loss of low-cost or tuition-free public higher education, once available in states like New York and California, has fostered an exploding student debt crisis and a further loss of social mobility for lower-income and middle-class American families. The nation’s infrastructure is collapsing, leading the American Society of Civil Engineers to call for $2 trillion of investment over the next ten years. No wonder Americans want their government to do more. So much more needs to be done. I’m From Your Insurance Company And I’m Here To Help Ronald Reagan spoke of government as if it were the enemy,


rather than a democratic institution reflecting the will of the American people. “The nine most terrifying words in the English language are,” Reagan said sarcastically, “I’m from the government and I’m here to help.” If you want a real taste of bureaucratic hell, try arguing with your insurance company over an improperly rejected medical bill. And, while any large organization needs continuous improvement, decades of Democratic “reinventing government” initiatives amplified the idea that government is inherently inefficient. There are, in fact, many things the government does extremely well. Both Social Security and Medicare, for example, operate at much lower cost and with greater efficiency than comparable private-sector efforts. A Time To Organize The latest NBC/Wall Street Journal findings suggest a context for another recent poll, which found that two-thirds of the American people think the Democratic Party is out of touch with most people’s everyday concerns. One good way to fight that perception is by proposing smart, effective government initiatives to address those concerns. Most people are worried about making a decent living, getting the medical care they need, caring for a sick kid, educating their children for a better life… maybe even taking a family vacation once in a while. Helping them would be good politics, as well as good policy. Democrats like Minnesota’s Rep. Keith Ellison and Washington’s Rep. Pramila Jayapal view elected office from the perspective of activists and organizers. That suggests an intriguing path forward. It is an organizers’ truism that communities are best mobilized by finding issues that affect most people — garbage collection and snow removal are often used as examples at the local level — and building momentum around that. The federal government can be an effective tool for addressing many of the problems that affect people’s lives today. A party can be re-envisioned as a movement. Activist politicians for an activist government: it’s an approach more Democrats should consider. The Trial Lawyer x 67


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By Chauncey DeVega

REPUBLICANS SEE THEMSELVES AS HEROES. THEY ARE ACTUALLY POLITICAL TERRORISTS. As the Republicans voted to steal away health insurance from the sick, children, pregnant women, the poor, elderly, babies and people with pre-existing medical conditions in order to give millionaires and billionaires like themselves more money, they reportedly played the theme song to the movie “Rocky” and found inspiration from George C. Scott’s Oscar-winning performance as Gen. George S. Patton. On one hand, these are just curious details that help to paint a picture of what happened that day in Congress. But they also tell us a great deal about how the Republicans who voted to overturn the Affordable Care Act see themselves in history.

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“Rocky” is the fictional story of a pugnacious ItalianAmerican club boxer from Philadelphia who in “the greatest exhibition of guts and stamina in the history of the ring,” according to the movie, battles to a draw the heavyweight champion of the world, an African-American named Apollo Creed, on Independence Day in 1976. Perhaps the Republican millionaires in Congress believe that they are underdogs? Or maybe they have fantasies of running up the stairs at the Philadelphia Museum of Art, as Rocky does in that movie’s most iconic scene — although, based on their ages and physical appearance it is doubtful that most of the House Republicans could accomplish that feat without collapsing from exhaustion or a heart attack. It seems much more likely that the Republicans and President Donald Trump think they are the Great White Hope who knocks out the “arrogant” and “uppity” black interloper, President Barack Obama — to the cheers of their racist public. If their evocation of “Rocky” is pathetic and humorous, then Republicans’ need to draw inspiration from “Patton” is malicious and frightening. Of course, the comparison is absurd. The real-life Patton commanded the American Third and Seventh Armies in World War II against the Nazis in Europe and North Africa. The Republicans are leading an Ayn Rand, gangstercapitalist, plutocratic-authoritarian crusade against the American people. Nevertheless, what inspiring quotes did the Republicans in Congress look to as they voted to take insurance away from the American people in the name of some perverse and twisted and backward Orwellian Newspeak version of “freedom?” Here are some possibilities. In the 1970 movie, George C. Scott’s version of Patton says: “Now I want you to remember that no bastard ever won a war by dying for his country. He won it by making the other poor dumb bastard die for his country.” Maybe the Republicans believe that they are fighting a war? If so, who is their enemy? There’s also this contender: Now there’s another thing I want you to remember. I don’t want to get any messages saying that “we are holding our position.” We’re not holding anything. Let the Hun do that. We are advancing constantly and we’re not interested in holding onto anything except the enemy. We’re going to hold onto him by the nose and we’re going to kick him in the ass. We’re going to kick the hell out of him all the time and we’re going to go through him like crap through a goose! Are the Democrats the enemy? Are Americans who are sick 72 x The Trial Lawyer

the enemy? If you have a pre-existing condition and need affordable medical care, are the Republicans going to “kick the hell” out of you? Any mention of Scott’s role as Patton would have to include this oft-referenced speech from the beginning of the film: Men, all this stuff you’ve heard about America not wanting to fight, wanting to stay out of the war, is a lot of horse dung. Americans traditionally love to fight. All real Americans love the sting of battle. When you were kids, you all admired the champion marble shooter, the fastest runner, big league ballplayers, the toughest boxers. Americans love a winner and will not tolerate a loser. Americans play to win all the time. I wouldn’t give a hoot in hell for a man who lost and laughed. That’s why Americans have never lost and will never lose a war . . . because the very thought of losing is hateful to Americans. Are Republicans “winners,” while Americans who need health insurance are “losers?” It would seem that “winning” is apparently all that matters for Republicans and Donald Trump: As shown by the House’s healthcare vote, the last five decades of Republican policies and Vladimir Putin’s apparent interference with the 2016 election, their party is more important to GOPers than loyalty to their country, the general welfare or the common good. It is estimated that the Republican Party’s destruction of the Affordable Care Act would kill at least 43,000 Americans a year. That does not include the millions of Americans who will die prematurely from the emotional and physical stress related to the financial ruin that can be caused by a major or chronic illness. Republicans love to wrap themselves in the American flag like a cheap suit. Here the flag is a prop to win over conservative, authoritarian and low-information voters who are swayed by such empty gestures. But such a ploy cannot hide a basic and unpleasant fact. On Sept. 11, 2001, almost 3,000 Americans were killed by Osama bin Laden and alQaida. Yet the Republicans in Congress, at the behest of Donald Trump, voted last Thursday to kill almost 15 times that many Americans every year. Their decision to take away affordable healthcare from some of the most vulnerable Americans is an act of political violence and a form of terrorism. Once again the Republicans are showing their contempt for the “useless eaters.” While the leaders of the ruling political party have convinced themselves that they are heroes, in reality they are villains and enemies of the American people.

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HERNIA MESH More Harm Than Good From Defective Surgical Implants By Farron Cousins Hernias are one of the most common injuries that can only be fixed by surgery. And on top of the enormous risks that patients who elect to have surgery are faced with, they are now having to deal with defective meshes that are coated with chemicals that are not meant to be used in surgery and otherwise are the result of bad designs and a rush to the market. These products fall apart, tear open, adhere to people’s intestines, and one company even eventually pulled their products off the market due to the dangers being posed to patients. Simply put: the damage being caused by these products is far worse than the hernias that these devices are designed to fix.

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Electing to have surgery is not a decision that most people take lightly because they understand how risky any procedure can be. Medical errors are one of the leading causes of preventable deaths in the United States, and most of those occur on the surgical side. On top of that, there are complications that can arise from anesthesia, the possibility of infections, and the amount of pain that patients understand will come along with any surgical procedure. But in some cases, surgery is the only option, and that’s the case with most hernias. Each year hundreds of thousands of hernia surgeries are performed in the United States. There are numerous types of


hernias, but the two For example, a company called Atrium released a product called a bogus design, but the most common hernias C-QUR mesh. The C-QUR mesh was a mesh patch that was coated company itself has been are ventral hernias with Omega 3 acids. Basically fish oil goo. This “goo” causes severe in trouble with the FDA and inguinal hernias. for contamination issues reactions inside the human body and leads to infections, adhesions, A ventral hernia is a surrounding the way it and can even cause a person to die. bulge that occurs at an handles these products. abdominal wall muscle; Then, Ethicon, a and an inguinal hernia is a hernia near the groin. subsidiary of Johnson & Johnson, makes a product called Many years ago, a product came out to the market called Physiomesh that uses a chemical coating on top of its mesh. “Kugel Mesh Patch.” That hernia patch was a horrific product This chemical coating was touted to doctors as something that that was made of a plastic chemical polymer and had a ring would help surgical wounds heal better. Turns out that it did around the patch that would break and dislodge in a patient’s the opposite: it caused healing problems. The problems got so skin, abdomen, or intestines. People suffered debilitating bad that they issued an Urgent Field Safety Notice voluntary injuries and even died from this product. Turns out that was recall in May of 2016. The reason that the company issued only the tip of the iceberg. this recall is because their mesh products were causing an array Since the Kugel Mesh days, medical device companies of problems, which included the mesh beginning to bind have continued to produce devices that supposedly have with other internal organs, or the mesh falling apart causing “innovative” technologies in them that are nothing more than the hernia to reopen and the patient being forced to have marketing ploys that involve little to no science and a whole lot corrective surgery. of experimental medicine. Thanks to the FDA’s medical device And while it isn’t uncommon for hernia patients to have to clearance process, these devices don’t have to be independently have surgeries later on in their lives, as hernias have a tendency verified as to their safety. to reoccur, the failure rates of the hernias repaired with For example, a company called Atrium released a product mesh products was found to be significantly higher than the called C-QUR mesh. The C-QUR mesh was a mesh patch reoccurrence rates of patients who had their hernias repaired by that was coated with Omega 3 acids. Basically fish oil goo. sutures. This “goo” causes severe reactions inside the human body and In fact, these negative side effects became so severe that leads to infections, adhesions, and can even cause a person a clinical study on the product was actually terminated early to die. On top of that — not only does the product employ because it was so dangerous.


NOT SAFE AS PRESCRIBED:

An Interview With Lawrence Golbom About His New Novel About Big Pharma’s Deceit By Martha Rosenberg The pharmaceutical industry has found itself in an undesirable position in the last few years, with its price-gouging becoming one of the hottest issues in the healthcare debate. On top of that, the opioid crisis that it helped create is lighting up the legal arena for a new fight, and their political campaign donations have become the scourge of the American public. So it’s no surprise that their deceit, corruption, and disdain for human life would become the focus of a new thriller by Lawrence Golbom titled “Not Safe As Prescribed.” Author and journalist Martha Rosenberg recently interviewed Golbom about his new novel and how real life events inspired this new thriller.

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Martha Rosenberg: I found Not Safe as Prescribed to be a page-turner. You captured the Pharma marketing apparatus from creating new “diseases,” bribing doctors and duping the FDA to phony patient groups, misleading research and the revolving doors between government officials and industry. You also really showed the connection to today’s heroin epidemic. Did you have to do a lot of research to get so many details right? Lawrence Golbom: Well, really the facts are out there. For seven and a half years I hosted a radio show called Prescription Addiction Radio and we had, as guests, Congressmen, medical experts, addiction experts, policy people, family members and affected patients who all exposed these practices. I am also a pharmacist by profession. In Not Safe as Prescribed, I simply tried to fill in what I imagined drug executives, the people behind these actions, were saying behind the scenes. I never dreamed I would write a book, but in the U.S. our growing drug culture for both legal and illegal drugs is affecting every community, person, family member or a friend. Everybody knows somebody struggling from too many drugs. That was my motivation. Rosenberg: Not Safe as Prescribed is based on actual events that have helped Pharma establish its current dominating influence on Americans’ lives. As a reporter, I certainly knew about how the Sacklers, a New York family of physicians and philanthropists, parlayed their lucrative morphine franchise into OxyContin, which they said they did not want to be “limited” to cancer pain. But the Sacklers, called the Mucklers in your book, also put benzodiazepines — notably Valium — on the map for Mr. and Mrs. Front Porch, which I did not know. Golbom: In Not Safe as Prescribed, Arturo learns the family’s new methods of marketing drugs from his father; in the case of the Sackler family, brothers Raymond and Mortimer learned from their older

brother Arthur. He is credited with finding enough different uses for Valium to turn it into the first drug to make $100 million and creating tit-for-tat, reciprocity relationships with doctors, now the U.S. norm. The three Sackler brothers bought Purdue Pharma, who makes OxyContin, in the 1950s. Rosenberg: Your book shows the insidious but successful transition in the 1960s of prescription drugs for a few to appropriate for everyone — because everyone has stress, frustration, blue days etc. In those days “housewives” and “businessmen” needed psychoactive drugs for their daily stresses. What I found chilling was how the same umbrella


marketing has created the current opioid addiction epidemic.

opener to many because of its spellbinding story and make a difference?

Golbom: Yes. Soon after the launch of OxyContin in 1996, Pharma was able to have pain designated as the “fifth vital sign” to be monitored just like blood pressure. Suddenly almost everyone had pain, and the new field of “pain medicine” staffed by “pain management doctors” was born and monetized. We know what happened then. Estimates say more than 91 people a day are dying from opioids or the heroin they turn to when they can’t get opioid drugs. A part of my book highlights the sad state of the treatment of our veterans from the VA. Last estimates were 22 veterans a day were committing suicide. In my opinion, a direct result of the VA’s penchant for prescribing too many pills.

Golbom: I think the older generation is pretty hopeless. They have been duped into our present drug culture. The baby boomers have bought into the powerful “drugs for everyone” Pharma message whether it’s the use of statins and GERD medicines, mood drugs or opioid-based pain pills. But I hope the younger generation can escape our present day drug culture. For example, the long-term effects of the ADHD drugs millions of children are prescribed are dangerous and starting to emerge. One promoter of ADHD meds recently developed atrial fibrillation, a possible side effect from the powerful amphetamines parents pour down their children’s throats. The effects of the SSRI depressants millions are on are also shocking — they are linked to bizarre homicides and suicides, including among young people in the military. In the last decades, people addicted to drugs no longer go to mental health facilities which have been shut down — they increasingly go to prison.

Rosenberg: After pain became a “vital sign,” the field of “addiction medicine” was born. Golbom: The drugs to treat OxyContin addiction like buprenorphine, sold as Suboxone, are opioid derivatives that are 10 to 20 times stronger than OxyContin. After 8 hours of training, addiction specialists have a wonderful revenue stream. MAT — medication-assisted treatment — has doubled Pharma’s revenue. OxyContin addiction also drives other drug sales. To quote the medical director behind the Muckler opioid marketing in my book, “People are hooked on OxyXR and the psychiatrists are diagnosing them as either depressed or bi-polar. If I took an OxyXR for a month I’d be depressed too. With the diagnosis of addiction as a disease, psychiatrists salivate knowing a five minute office call every month is in the future.” Very early in its marketing of OxyXR, the Mucklers draw a line in the sand between “used as prescribed” and “abuse” to insulate the company from the growing thousands of deaths. By dismissing the overdose casualties and addicts as “abusers,” they are able to maintain that OxyXR is the leading “pain reliever” with no safety issues if used as prescribed. Rosenberg: Do you feel your book will be an eye-

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Rosenberg: The character development in Not Safe as Prescribed is interesting as so much money is made. Some of Muckler’s operatives are without conscience or able to rationalize their deeds. Jeremy, the protagonist of the book, was unable to rationalize his job once his cousin dies from opioids. Early in the book, a skeptic about OxyXR’s safety who the company felt could do harm to its sales is literally killed. Jeremy ends up facing the same risks. Golbom: Yes there is moral tension in the book and a shocking ending that people will enjoy. But sadly, Pharma has money on its side because there is no money in prevention and education. As the kingpin OxyXR marketer, Auturo Muckler sums it up in the book, “I love drugs. Whether you take them, make them, use them, sell them, grow them, arrest people who have them, sentence people who got caught with them or run the jail houses, everyone makes money.” I think I left out the undertaker.


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ZIP-LINE & PRE-INJURY RELEASES By Bernard Walsh and Christina Walsh

There is a significant increase in zip-line accidents across the country resulting in injuries to innocent individuals. Safety is an issue as there are countless ways injury can occur — falls from the platform, failure of braking mechanisms or safety harnesses, getting hands caught in the gears, collisions with other riders or fixed objects (such as trees or structures) — just to name a few. A malfunction with any of the equipment can cause serious injury, most common of which include: traumatic head injury, spinal cord injury, injuries to neck and back, fractured or broken bones, sprained ankles, dislocated joints, torn ligaments or tendons, ripped muscles, friction burns, amputation of digits, and even death.

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According to the American Journal of Emergency Medicine Study, which is the first national look at zip-line injuries taken place from 1997–2012, nearly 17,000 people were treated for zip-line-related injuries over 16 years. But more alarming is the increase in frequency of these injuries that have occurred within the last four years. Of the 1997–2012 study, well over 3,600 people were treated for injuries, averaging nearly 10 per day. Injuries were most common in children and teenagers. The

spike in zip-line accidents is likely attributed to the increase in the number of zip-lines available to patrons. The number of commercial zip-lines rose from 10 to 2001 to more than 200 in 2012 with an additional 13,000 amateur zip-lines in outdoor educational programs, camps, and backyards. An estimated 16,950 non-fatal zip-line-related injuries were treated from 1997–2012, and although deaths were not included within the study, there were over six deaths in 2015 nationwide.

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The Problem Most zip-line rides held on private facilities carry little-to-no insurance. The facility itself is often not required to have any insurance to operate this dangerous recreational activity nor to obtain a permit for such activity. According to Florida Statute 616.242 Safety Standards for Amusement Rides, an “amusement ride” means any building, structure, or mechanical device or combination thereof through which a patron moves, walks, or is carried or conveyed on, along, over, or through a fixed or restricted course or within a defined area for the purpose of giving its patrons amusement, pleasure, thrills, or excitement. Section 5 of the Florida Statute states the requirements of an annual permit, 82 x The Trial Lawyer

which include (A) An amusement ride may not be operated without a current annual permit (B) To apply for an annual permit, an owner must submit to the department a written application on a form prescribed by rule of the department, which must include the following… (3) A valid certificate of insurance for each amusement ride. However, Section 9 of the Florida Statute specifically explains the insurance requirements as (A) an owner may not operate an amusement ride unless the owner has in effect at all times of the operation, an insurance policy in an amount of at least $1 million per occurrence, $1 million in the aggregate, which insures the owner of the amusement ride against liability for injury to persons arising out of the use of the amusement ride and

(B) the policy must be procured from an insurer that is licensed to transact business in this state or that is approved as a surplus lines insurer. Even when a zip-line facility carries insurance, it can avoid liability on claims for injuries and deaths at their facilities. This can be done by making the patron sign a pre-injury release. These can release the owner from claims that arise out of the facilities’ own negligence, when it is written correctly. According to Theis v. J&J Racing Promotions, 571 So.2d 92 (Fla. 2nd DCA 1990), exact language is needed for a presumption of a pre-injury release or exculpatory clause to be upheld. The court found that the pertinent parts of the release/waiver needed are as follows:


1. The release needs to state parties and persons to be released from all liability. 2. It bars claims from the undersigned and anyone who would bring a claim on their behalf. 3. What claims the undersigned is releasing. I.E. from injury, death, negligence, and/or property damage. 4. The duration of the release. 5. An acknowledgement of the risks and dangers of the activity. 6. A statement that the intent of the release is to be as broad and inclusive as the law will permit. 7. A severability clause 8. An acknowledgment that the document has been read and voluntarily signed. 9. A complete integration clause.

common carriers as it violates public policy.

The Courts

3. No agency relation between vessel owner and independent contractor. Cruise ship passenger injured on zipline shore excursion could not establish ship owner’s liability under theory of actual agency; even though ship owner performed all billing, advertising, organizing, and direction of its passengers to independent contractor’s excursions. The contract between ship owner and excursion operator clearly demonstrated that excursion operator was an independent contractor and no agency relation was ever intended or formed.

Generally, pre-injury releases and exculpatory clauses are disfavored to the courts. According to Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108,110 (Fla. 5th DCA 2009), Exculpatory clauses are “by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the part who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” However, the courts are diverse with rulings on pre-injury releases and exculpatory clauses. 1. Releases by common carriers are unenforceable. Plaintiff while riding the zip-line was unable to slow down or stop and hit the tree holding the platform. Plaintiff argued that the release was barred because the zip-line was a common carrier under Illinois law and as such “they cannot exempt themselves from liability from their own negligence.” The court found that the zip-line fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act and held that releases are unenforceable when applied to

2. Owner of a passenger vessel cannot contractually limit its liability for own negligence. This action arose out of the death of Plaintiff’s spouse during a zip-line excursion (provided by a Honduran shore excursion operator and independent contractor Tabyana Tours), which was sold to her onboard the Defendant’s vessel. The court stated the owner of a passenger vessel may not contractually limit its liability for its own negligence; causes for action for negligent selection, failing to warn the Plaintiff of the dangerous condition, and failing to inspect the zip-line on a regular basis is sustained.

4. Zip-Line may qualify as a ‘dangerous condition’ to a ‘public facility.’ The term “public facility” was ambiguous, in the context of determining whether waiver of immunity applied in a premises liability action against a school district for injuries sustained by a 9-year-old when she fell from a zip-line on a playground. The court found that an individual zip-line does not qualify as a public facility, but the entire playground can qualify. The court further found that a condition on a zip-line may qualify as a “dangerous condition” of that facility.

How To Defeat The best two points of attack on a preinjury release or exculpatory clauses are ambiguity and understandability. Through the above case law, it is established that the law requires the material terms and intent of an agreement to be clear and unambiguous to a reasonable person. Therefore, ambiguity or unclear terms, phrases, or inexact language may be attacked to invalidate the agreement. The material terms and intent of an agreement must also be unequivocal enough that an ordinary knowledgeable person would be able to understand at the time of signing exactly what they are contracting away. In Maryland, according to Seigneur v. National Fitness Institute, Inc., 132 Md.App. 271 (2000), unambiguous exculpatory clauses are generally held to be valid. However, three exceptions have been identified where the public interest will render an exculpatory clause unenforceable. 1. When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; 2. When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and 3. When the transaction involves the public interest Although generally products liability is not a successful argument to be made in a zip-line specific case, in Sanchez v. Project Adventure, Inc., 12 A.D. 3d 208; 785 N.Y.S. 2d 46 (N.Y. 2004), the court found the design itself was negligent. Citations available on request

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THE IMPLICATIONS OF TRUMP’S EXECUTIVE ORDER ON CLIMATE CHANGE AND ENERGY By Gregory A. Cade

President Donald Trump’s decision to sign the Executive Order on Climate Chance and Energy has caused significant controversy among politicians and not only them. This disputable action is viewed as a clear rollback from the former administration’s Clean Power Plan. Here is a brief overview of the order that establishes a new set of rules for carbon pollution costs and some of the consequences that most officials foresee.

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Rolling Back The Clean Power Plan: Environmental And Political Implications

The Carbon Cost-Benefit Analysis Issue: Who Will Be The Judge?

Former President Obama’s Clean Power Plan aimed to reduce carbon emissions that are produced by existing utilities such as power plants. The target was to reach a 32% decrease in comparison with the 2005 level by 2030. At the moment, this project is on standby as the EPA is required to review the Plan’s content and rewrite or rescind it. This is going to be a lengthy process that can last for years since the new version of the rule has to be approved in court and be able to face any legal actions brought by environmental groups. Another common concern is the possible impact of the revised rule on foreign policies. Since climate effects can go far beyond the borders of the states, it’s important to consider their position as well. These countries’ climate policies regarding carbon emissions can also influence the US, so the process of establishing new rules has to show mutual respect and consideration. The order has proved to be a bold and risky move regarding international cooperation because it represented a drastic switch from the Paris agreement signed by the US and other 185 countries to reduce carbon emissions worldwide. The bottom line is that the controversial order is perceived as a step back in the international battle for lower emissions.

Carbon pollution has been a grave concern during the past decades and a recurrent topic in EPA’s agenda. It is hard to make predictions that can anticipate the practical long-term impact of carbon emissions on the environment and human health. Obama’s approach to this issue lead to the creation of an interagency group whose aim was to analyze carbon’s social costs and help establish pertaining environmental regulations. President Trump’s order assigns the carbon cost estimation responsibility to individual agencies who will perform this duty according to the principles stipulated in a 2003 guideline provided by the Bush administration. This shift of liability gives rise to general concern because it might make carbon pollution costs seem far less small, both to the detriment of the environment and human health. These agencies are now capable of approving the construction of new pipelines or easing coal leasing. They are required to take into consideration the environmental impact of any new activities they support and account for them. However, they are not responsible for mitigating any possible effects. How Will The Order Impact The Control Over Other Emissions Like Methane? Carbon dioxide is a major source of greenhouse gas and by far the most disputable one. Nevertheless, other substances account for high emissions too, and one of them is methane. This gas is continuously released into the atmosphere during gas or oil extractions. Obama’s target was to lower methane emissions by 40% in comparison with the 2012 levels until 2025. The rules regulating these emissions are now subject to the same EPA review procedure and the subsequent court approval. It is still unclear how President Trump’s order will influence US carbon emission regulations in the future. There is a lot of skepticism toward the president’s stated intentions to revive the coal mining industry and cut electricity costs through this action. In the meantime, environmentalists and climate scientists are increasingly worried about the order’s destructive potential and warn that any impact on the environment will be irreversible. The Trial Lawyer x 87


MASS TORTS MADE PERFECT

SPRING CONFERENCE

EDUCATES AND ENTERTAINS

In late April, more than 1,000 trial lawyers, paralegals and legal services vendors arrived in Las Vegas for the Spring 2017 Mass Torts Made Perfect seminar, making this conference one of the most well-attended in MTMP’s history.

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As one of the largest plaintiff’s lawyer conferences in the United States, MTMP offers a wide array of topics presented by some of the foremost trial lawyers in the country. Speakers including Mike Papantonio, Keith Givens, the 90 x The Trial Lawyer

AAJ’s Linda Lipsen, and Mark Lanier enlightened the crowd with information on the latest mass torts cases, as well as developments in the political arena that have a direct effect on the business of practicing law, both in the single event

arena and mass torts. The Wednesday “Boost Your Business: Financing and Marketing Strategies” program kicked off the Spring MTMP seminar, where those in attendance learned the latest ideas on use


of social media to grow your practice, financing options, using TV for lead generation, and much more. This allday business session was followed by the opening night gala at XS Nightclub, where over 1000 attendees were treated to food and cocktails, and an amazing opportunity to network and connect with old and new friends. The seminar opened Thursday morning with Mike Papantonio discussing the importance of outside organizations — like The American Association For Justice (AAJ) — and how they are providing the necessary support for trial lawyers by fighting back against the corporate lobbyists who seek to destroy the legal profession. Without organizations like the AAJ, trial lawyers would be nearly helpless to fight back against the corporate interests who fight every day to weaken

protections for American consumers and block access to the court system for victims. Thursday’s luncheon included The Trial Lawyer Hall of Fame Induction Ceremony (each inductee is profiled in this issue), along with the presentation of the Young Innovator Award to attorney Aimee Wagstaff of Andrus Wagstaff, who founded the Women in Masse group that meets annually in Aspen and has made major strides in advancing the cause of promoting female lawyers in the mass torts arena. And amid all of the educational opportunities and networking, attendees were treated to an evening of entertainment with comedian Jeff Foxworthy delivering his signature brand of blue-collar comedy that left the crowd wanting even more. If you missed out on the Spring

seminar, don’t fret — the Fall 2017 MTMP conference at the Bellagio in Las Vegas will be here before you know it. With a special performance from world renowned magician David Blane, and a motivational luncheon speech by basketball superstar Kareem Abdul-Jabbar, the Fall seminar is certain to educate, inspire, and entertain all who attend. Abdul-Jabbar will also be autographing basketballs to be auctioned off to raise funds for the Trial Lawyer Hall of Fame at Temple Law School in Philadelphia. You can get all of the information and sign up for the Fall seminar online at MTMP.com. Members of the National Trial Lawyers can get $300 off the registration fee by contacting Hope Crew at Hcrew@ theNTL.org.

The Trial Lawyer x 91


ACTING AS LAWYERS SHOULD

ACTING AS LAWYERS SHOULD

Across 1. Class Act actor. 8. Prosecutor in 2 Down. 13. Trick during cross-examination. 14. Hinder. 15. Top of the head. 16. Doughton Withholding Tax Act (Abbr). 18. Trust Indenture Act (Abbr). 19. Bachelor of Theology. 20. Opposition. 22. Latin legalese for “now.” 23. Reversed promissory notation. 25. Highly probative genetic material. 26. Timid person. 27. Remainder (Abbr). 29. Not applicable (Abbr). 31. Negative vote. 32. Setting for And Justice for All (Abbr), a 1979 Norman Jewison film. 33. Jimmy Stewart’s hapless secretary in 2 Down (First name). 35. Acted as president (Initials). 36. Creditor (Abbr). 38. Common pleas (Abbr). 39. Detective (Slang). 41. Pervasive quality. 43. Seaport in the Philippines. 45. Inclined. 48. Solution to the crime. 49. Military force. 50. Belonging to The Paper Chase star. 52. Morning time. 53. He used a bull whip to teach “attorney” Jimmy Stewart the law of the West in The Man Who Shot Liberty Valence. 54. Gregory Peck had some shining lawyer moments in this 1962 Oscar winner (Second word of title). 55. Preposition. 57. Combining form in nouns corresponding to adjectives. 59. The judge’s ruling. 61. His less than genteel manner caused problems for the court in True Grit. 62. The Dreyfus who was threatened with eviction by The Goodbye Girl.

Down 1. Tried cases against Spencer Tracy in Adam’s Rib. 2. This 1959 film, often called the single greatest courtroom drama in film history, was based on a novel by Judge John D. Voelker (First word of title). 3. Central Standard Time (Abbr). 4. Joint. 5. Official zip code for the state where chopping up your pappa is supposed to be illegal. 6. Last name of 33 Across. 7. A very bad lawyer in The Verdict, a 1982 Sidney Lumet film. 8. Security of Deposit Act (Abbr). 9. Let the buyer beware (Abbr). 10. A term that Tim Robbins regretted using to describe the warden in Shawshank Redemption. 11. Thin tin plates. 12. The judge in Judgement at Nuremberg, a 1961 Oscar winning film that asked the question “Who will judge the judges?” 17. Multiples-of-ten suffix. 21. Cold state’s zip code. 22. Species of media turtle. 24. Slang for identification. 28. Discharge a debt. 30. He represented a rapist judge in 32 Across. 34. This Begley’s anger was second to only to that of Lee J. Cobb in the 1957 juror-deliberation classic Twelve Angry Men (Directed by Sidney Lumet). 36. Screenwriter. 37. Forever king of the television lawyers. 38. Legal Eagles with Robert Redford. 40. She was worth killing for in Suddenly Last Summer. 42. Witness for the Prosecution setting (Abbr). 43. T.V. lawyer show. 44. Stage. 46. Insect appendages. 47. Tennessee zip code. 50. Remedial Investigation (Environmental law acronym). 51. Hyperbolic sine. 54. Korean-American banking club. 56. Newspaper Institute of America (Abbr). 58. A witness spilled the beans in The Verdict after failing to become one (Abbr). 60. Immediate constituent (Abbr).


THEGOOD,BAD,UGLY By Farron Cousins

The

Good As early as 2006, the Pentagon warned that climate change posed an enormous threat to U.S. national security. Before that very clear warning, communications from the White House dating back to the Reagan presidency show that both the president and his advisors were being briefed on the threat that climate change posed to the United States. But in the midst of all of the backroom conversations about the threat of climate change, oil companies and other fossil fuel interests were lining the pockets of politicians who denied the existence of climate change, or who at least were willing to say that the problem wasn’t as dire as the experts tell us. But denying climate change is only part of the deal when fossil fuel giants fund a political campaign; They also want elected officials to look the other way when they pollute the environment with their waste products. And while politicians might be reluctant to go after major polluters, the American court system is still holding them accountable, at least for now. Recently, Exxon Mobil was fined $20 million for more than 16,000 violations of the Clean Air Act over the course of eight years. Do the math and you’ll see that from 2005 to 2013, Exxon was violating the Clean Air Act an average of 5.4 times every single day of the year during this period. U.S. District Judge David Hittner handed down the ruling against Exxon in a case that was brought by The Sierra Club and Environment Texas against the oil giant. Hittner cited Exxon’s “serious” disregard for the Clean Air Act as justification for the $20 million penalty, and noted in his ruling that their actions released an additional 10 million pounds of pollutants into the air. While the majority of the ruling party in Washington, D.C. might view climate change as a hoax and see environmental protections as “unnecessary,” it is comforting to know that, at least for now, the U.S. court system is doing what they can to hold polluters accountable.

94 x The Trial Lawyer

The

Bad There’s no denying that racism seems to have made a comeback in the United States, if for no other reason than the population finally started paying attention to the issue. The election of Donald Trump allowed white supremacist leaders like David Duke to crawl back out of the woodwork to publicly endorse the candidate who he and many others in the white nationalist movement believed represented their ideals. In the American South, many vestiges of the racism that once ruled the land are still quite evident, as we’ve seen with the recent uproar over the Confederate Flag and the removal of Civil War monuments depicting racist secessionists as heroes of the South. But progress has been slow, and in some areas, citizens are actually trying to turn back the clock to return to a time when being white was all that mattered. That’s what happened recently in the town of Gardendale, Alabama. Gardendale wanted to be removed from the school system of Jefferson County, Alabama — a county that includes the city of Birmingham. The city argued that it wanted to create its own school system that wasn’t beholden to the rules and population of Jefferson County. That may seem innocuous enough, but according to the city’s plans, the move was racially motivated. The “new” town would be a nearly all-white community with an all-white school district, something that Jefferson County would have never allowed. This move was deplorable, or at least that’s how U.S. District Court Judge Madeline Haikala described it in her decision. Judge Haikala is the one who pointed out that the move was racially motivated to create a white community with white schools, but she decided to go ahead and greenlight it anyway. The rationale behind Judge Haikala’s decision could not be more mindboggling. She openly admitted that she knew the plan was racist. She called it deplorable. But she said they can go right ahead and create their lily-white community anyway. Not only was the city’s plan deplorable, but Judge Haikala’s decision falls into that category as well.


The Ugly According to the latest studies (as recently as April 2017), women in the United States, on average, are paid only 80% of what a man in an identical field and position are paid. Men in the U.S. make 20% more than women at the exact same job simply based on their genitals — That’s the most succinct way to put the ugly truth about the wage gap in this country. While there have been legislative attempts to rectify this problem and make it illegal, many employers get around the law by coming up with some kind of excuse to justify the sexism that is rampant in their pay scales. But now, thanks to the 9th Circuit Court of Appeals, employers don’t have to come up with phony reasons to justify paying women less than they pay men — as long as that woman’s previous employer also discriminated against her. You read that correctly — the 9th Circuit Court of Appeals recently ruled that it was perfectly acceptable — legal — for a woman to be paid less than her male counterparts as long as her previous employer also paid the woman less than her male counterparts. The 9th Circuit justified their ruling by saying that previous discrimination based on gender was simply an employer basing a new hire’s pay on what they made in a previous position, even if her previous employer had given her less because she was female. What this ruling affirms is that women can be discriminated against as long as they’ve always been discriminated against. Rather than trying to right a wrong that has existed in this country since its inception, the 9th Circuit decided to double down on discrimination and says that once you get discriminated against for your gender you are essentially out of luck.


The Trial Lawyer, Summer 2017  

A magazine for trial lawyers and a voice for justice.

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