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With so many executive orders being challenged in many forums, keeping track of the events presents challenges similar to the challenges in tracking events in mass tort litigation. Below, a note on the best resource I know of for tracking the civil rights cases. Guest posts are welcome if others know of better resources.

A University of Michigan law school web site provides open and timely access to the papers from the ongoing State of Washington case against Trump. That’s the case which produced the national  injunction of the executive order on Trump’s Executive Order more commonly known as the Muslim ban.  The web site is called the Civil Rights Litigation Clearing House. See https://www.clearinghouse.net/index.php.

 The group appears to be collecting papers from all the executive order cases. As an Illini, it pains me to say it, but: Go Blue! Hopefully lawyers for all sides agree that open and timely access to information is critical for people to see the true picture instead of having to rely on the media.

This morning, the 9th Circuit refused DOJ’s emergency request to end the national injunction.

The government already filed its paper seeking a stay. The court set a briefing schedule that has a brief being filed tonight (Sunday) by the State of Washington at 1 minute before midnight (perhaps a Cinderella story :)).  Judging by the oral argument before the district judge, the brief may well include some of Trump’s tweet and other statements which were argued as showing racial bias and hatred.

The government replies in a brief due Monday at 3pm Pacific. See https://www.clearinghouse.net/detail.php?id=15606

No time set for a ruling.

Cartoon courtesy of Campaign for Tobacco Free Kids
Cartoon courtesy of Campaign for Tobacco Free Kids.

You knew this well-targeted attack was going to be launched by someone. Kudos to the Campaign for Tobacco-Free Kids for pointing out the absurdity of some group of CEOs giving an award to the US Chamber of Commerce for supposedly being useful in reducing lung cancer. The award by the CEOs reflects an obvious failure of the awarding group to understand that the US Chamber of Commerce is a global lobbying arm for big tobacco, as detailed in a string of articles by the New York Times and others. Thus, the campaign explained, in pertinent part:

“It is incomprehensible that the U.S. Chamber of Commerce has been recognized by the CEO Roundtable on Cancer for its efforts against cancer when the Chamber has helped the tobacco industry fight life-saving and cancer-preventing tobacco control policies around the world, as recently revealed by a multi-part investigation by The New York Times. Far from helping to reduce cancer, the Chamber’s pro-tobacco activities are undermining global efforts to fight cancer.

Because of its pro-tobacco activities, the U.S. Chamber of Commerce is undeserving of the “CEO Cancer Gold Standard” it was recently awarded by the CEO Roundtable on Cancer, a nonprofit organization of CEOs. The Campaign for Tobacco-Free Kids calls on the CEO Roundtable on Cancer to rescind this recognition until the U.S. Chamber of Commerce ceases all activities on behalf of the tobacco industry and against tobacco control policies. We urge the CEO Roundtable on Cancer to realize that there is a fundamental conflict between its worthy mission of combatting cancer and the Chamber’s activities on behalf of the tobacco industry.”

One of the struggles in mass tort litigation arises from the economic conflicts of interest between current and future claimants. The issues can arise in multiple places: class actions, mass tort bankruptcies (which are de facto class actions), and current claims seeking punitive damages that realistically could exhaust the assets of defendants that lack deep enough pockets.

The conflict between future claimants and current claimants, and more, will be central to the NFL concussion class action argument this week in the 3rd Circuit. A cogent summary of the issues is provided by Paul Anderson at the NFL Concussion Blog in a November 15, 2015 post. The issues include a sharp focus on conflicts between the current and future claimants as to the brain injury known as CTE.  Incredibly, the current claimants propose to leave future CTE victims without a remedy. The point is explained as follows in the opening brief of the objectors.

“So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.”

Happily, objecting claimants are 1) pointing out the mistreatment of the future claimants, and 2) arguing the class outcome cannot bind future claimants if it abrogates their rights. If due process means anything, the rights of future claimants certainly cannot be cut off while the science is very new and still undergoing material evolution. To that end, one of the arguments of the objectors is to “keep the science open.” More specifically, the objectors argue, among other things: “the settlement could authorize objective committee of scientists to approve changes and “keep pace with the changing science and medicine.” Georgine, 83 F.3d at 630-31.”  That particular line of argument is towards the end of the opening brief of some of the objectors, at 55-56. The full brief is online and open access.  

Three of the key paragraphs from the brief are pasted below, including the argument to “keep the science open.”

“Exclude future claims from the release

The parties might also narrow the terms of the release to permit class members who develop CTE-related injuries in the future to press their claims and seek compensation. In Super Spuds, Judge Friendly refused to endorse a view of Rule 23 or due process that would allow named plaintiffs to give up different claims of absent class members. 660 F.2d at 17. Here, because the named “futures” representative declined to press a CTE claim, the scope of any release of future claims could be so limited, and future CTE claims could be excluded. See In re Oil Spill by Oil Rig Deepwater Horizon, 295 F.R.D. 112, Case: 15-2272 Document: 003112053952 Page: 62 Date Filed: 08/24/2015 56 125 (E.D. La. 2013) (approving release that would not cover later-manifested physical conditions arising from exposure).
Compensate CTE with evolving diagnostic criteria.

A third option would be to create a CTE qualifying diagnosis. This would allow players who are later diagnosed with CTE to get compensation. To account for the changing science, the settlement could establish a framework for constant reevaluation of the diagnostic criteria related to CTE. And unlike the current settlement—which gives the NFL a unilateral veto—the settlement could authorize an objective committee of scientists to approve changes and “keep pace with the changing science and medicine.” Georgine, 83 F.3d at 630-31.

Provide back-end opt-out rights

Finally, the use of “sturdy back-end opt out rights” has been recognized as a “rational[]” means for future-only class members to protect “distant recoveries,” Amchem, 521 U.S. at 610, and “safeguard their ultimate right to resort to the tort system,” In re Asbestos Litig., 90 F.3d 963, 972-73 (5th Cir. 1996); see, e.g., Bowling v. Pfizer, Inc., 143 F.R.D. 141, 150 (S.D. Ohio 1992). 7 In the recent BP/Deepwater Horizon Medical Settlement, for example, all class members had the right to a back-end opt-out regardless of 7 This mechanism has been embraced by several scholars. See John C. Coffee, Jr., Class Action Accountability, 100 Colum. L. Rev. 370, 433 (2000); Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 Harv. L. Rev. 747, 800-01 (2002); Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 Sup. Ct. Rev. 337, 368-70 (1999); John C. Coffee, Jr., Class Wars, 95 Colum. L. Rev. 1343, 1448-53 (1995). Case: 15-2272 Document: 003112053952 Page: 63 Date Filed: 08/24/2015 57 whether they recovered in the present. There was “no ‘future’ injury released by the Settlement”—and hence no concern that absent class members’ undeveloped claims would be extinguished. See In re Oil Spill, 295 F.R.D. at 140. Because all class members retained the opt-out right, even those with current claims had “every incentive to protect the interests” of futures-only claimants—a point with which Dean Klonoff (who was also an expert there) agreed. Id”

Megan tweet soccerFor organizations indirectly or directly involved with health, the current world can present massive opportunities and risks due to media that can reach around the globe to millions, in a relative instant. A new example? Concussions, research and emerging science, the subject of a new Will Smith movie in theaters at Christmas, as described here and so many places.

Yes, movies like this are a big deal as to public perception. And all should keep in mind that some members of the public end up on juries, some are in legislatures, and some work as doctors or judges. Some also are shareholders. In the article, Will Smith cites his concerns as a “football dad.” For me, certainly concussions were very much on mind the last few years as a “soccer dad” for two daughters who played for their high school teams and on “travel” soccer teams. (Left, my daughter Megan, on corner kick duty.)

Millions of parents around the world share similar concerns as we all want to keep our kids safe, and yet not smother them. After all, life includes some risk at many junctures but we parents sure wish we could put a protective bubble around children, whether ours or the kid next door or on the other team. All parents worry when a kid is prone on the field. And we all will raise heck (to use a polite word) if we think someone is not being honest about the safety of children.

The message here? Research and knowledge matter, and transparency is key.

CBO has published a preliminary estimate of costs related to extension of the 911 (Zadroga) fund. CBO provided the following summary:

“The Congressional Budget Office has completed a preliminary estimate of the effect on direct spending that would result from enacting S. 928, the James Zadroga 9/11 Health Compensation Reauthorization Act, as introduced on April 14, 2015. The bill would permanently extend spending authority for the World Trade Center (WTC) Health Program and the September 11th Victims Compensation Fund (VCF).

CBO estimates that enacting S. 928 would increase direct spending by between $8 billion and $11 billion over the 2016-2025 period. Additional spending would continue after 2025 for several years. This estimate reflects considerable uncertainty about the number of people that will seek compensation from the VCF.

S. 928 would:

  • Permanently extend the health program by providing annual appropriations beginning in fiscal year 2016 equal to the 2015 appropriation indexed to the percent increase in the medical component of the consumer price index for urban consumers;
  • Appropriate such sums as are necessary for the VCF program;
  • Allow claims for compensation under the VCF to be filed indefinitely; and
  • Add the WTC Health Program and the VCF to the list of accounts that are not subject to sequestration.” 

Spending continues apace on judicial elections as defense and plaintiff interests jockey to keep or put judges in office. The overall point is highlighted by the latest study on spending, which is Bankrolling the Bench from the Brennan Center group most would call “liberal,” even if the label is not accurate.  And the money flows the most freely in states with lots of tort litigation. Pennsylvania is one and the spending is large, as explained in a November 3, 2015 post at the Wall Street Journal law blog.

Today, a fact of life is that judges are invited to and do speak at conferences that gather persons interested in a topic. Sometimes the judges show up with a message. Thus, this week’s Perrin conference on asbestos litigation included a panel composed of “asbestos judges” from some of the key venues for asbestos litigation. Some plainly had messages they sought to deliver, and the messages were in fact delivered (e.g. you lawyers need to work out more discovery issues). Other judges were relatively more passive, and mainly answered questions. Meanwhile, Delaware Chief Justice Leo Strine was speaking to a conference of corporate directors, as described in a September 30, 2015 article. Judging by the article, he plainly had messages to deliver.

For some years now, I’ve been one of the many people wondering if the presence of judges at conferences is “good,” “bad” or otherwise. The overall answer is still not plain to me, and perhaps there is no one answer. But it is plain the situation is now firmly a part of the litigation process, and it needs to be considered and managed by litigants and their lawyers.

Software and data operate in binary code that changes very little, if at all, for borders (excluding homeland security issues for some software). Therefore, global problems are generated by defects in data or software. VW is the current poster child for this reality as it now has acknowledged global issues involving some 11 million cars, and billions in new reserves. VW’s share price also is down some 30-40%.

Consider the possibilities ahead for this and other, future global scale failures in software and/or data. And in thinking about data, keep in mind the massive amounts of data associated with drugs, diagnostics. As for software, keep in mind the amounts of software and information now imbedded in other manufactured goods; think especially about future self-driving cars from Google, Apple, Tesla or others.  Think also about the ever-growing volume of communications between devices via the Internet of things.

Shareholder lawsuits could be filed in many nations. Recalls may be ordered by regulators in many nations. D&O claims could be made around the world. Directors and officers of affiliate entities may disclaim any knowledge of actions that perhaps took place only at world headquarters, and may seek indemnities or other remedies. Criminal sanctions also may be proper. Suppose one country wants to jail the guilty for life (VW’s CEO  has said “grave errors” were made by a few); what happens to civil cases around the world if the guilty cannot be called to testify at trial because they are in jail outside the US?

In a fine irony, VW’s woes arise at the same time Justice Breyer is promoting his new book: The Court and the World. VW’s woes prove his point; the US is not an island and the Justices of SCOTUS must be cognizant of and willing to seriously consider and respect legal rules enunciated by other nations.

Some naive lawyers (e.g. me) long ago thought civil litigation was about truth, justice and the American way. Not so; the University of Chicago law and economics focus plainly is correct; civil litigation is about money. Therefore, it’s not a surprise that Delaware Chancery judges now issue opinions with warnings about their thoughts on future lawsuits. Alison Frankel covers the latest set of Chancery Court warnings and opinions  in a September 18, 2015 blog post.  As is detailed in her post, the Chancery Court comments and warnings are so blunt they almost feel like public company guidance on future earnings. Ms. Frankel wraps up with the paragraphs below; note the overt focus of all commenters on economic drivers for corporate litigation. Civil litigation is indeed all about money and predictability, in many ways.

“If Delaware won’t approve settlements with these “intergalactic” releases, might corporations prefer litigating in a forum where they can still buy cheap deal insurance? Corporationsfought hard to tame multijurisdictional M&A shareholder litigation through forum selection clauses in charters and bylaws. Most of those provisions, at least for Delaware corporations that have adopted them, require shareholders to litigate in Delaware. It’s up to defendants to enforce the provisions, though, so if corporations decide they can’t get what they want from Chancery Court, they could presumably choose not to move to dismiss shareholder M&A suits in other jurisdictions where they can obtain broad releases in exchange for just disclosures and fees for plaintiffs’ lawyers.

I ran that hypothesis past a couple of very wise corporate defense lawyers. They were of the mind that Chancery Court judges are aware of that possibility – and are going to give defendants a reason to continue funneling cases to Delaware. Chancery Court can do that by becoming more aggressive about dismissing unfounded M&A class actions early and being stingier about expediting dubious cases.

Delaware judges have been saying since the M&A litigation boom began that they will reward plaintiffs’ lawyers who bring strong cases, as we saw most recently in Laster’s $148.2 million judgment against Dole’s CEO and former general counsel. But if they want defendants to keep exercising forum selection clauses, they have to be willing to discourage shareholder firms from pursuing dubious cases. In the long run, plaintiffs’ lawyers won’t sink money into litigation that doesn’t pay.”

 

Advocates of damages caps in medical malpractice cases seldom, if ever, confront the gross unfairness of leaving on one person the economic burden of a medical error. That risk instead can and should be spread to many since actuaries say they can predict the general patterns of medical treatments and error rates, and can provide even more precise predictions  if provided with more detailed information.  See, for example, this 2009 article in  Contingencies (ISSN 1048-9851), which is published by the American Academy of Actuaries, 1100 17th St. NW, 7th floor, Washington, DC 20036. One of the authors is “Kevin L. Bingham, a senior manager at Deloitte Consulting LLP in Hartford, chairperson of the Medical Malpractice Subcommittee and an official spokesperson for the American Academy of Actuaries in Washington.” The other author is John Lucker, , who “is a principal at Deloitte Consulting LLP in Hartford and national co-leader of Deloitte’s Advanced Quantitative Services Practice (Data Mining & Predictive” [Services]).

In view of those realities, occasionally I publish examples of high value medical malpractice verdicts and/or settlements. Here’s a new example from Cook County from the July 1, 2015 issue of the Chicago Daily Law Bulletin (paywall). In light of the educational point of this post, I take the “fair use” liberty of republishing the full article in case anyone wants to cite it or fact check it with the involved lawyers.

“$23M settlement for childbirth injuries

By John Flynn Rooney
Law Bulletin staff writer
A suburban hospital and doctor will pay $23 million to the estate of a mother who suffered a stroke after childbirth and is now a quadriplegic.

The settlement is a record in Illinois for a birth-related injury to a mother.

Cook County Circuit Judge James N. O’Hara entered an order on Friday approving the settlement — the bulk of which will be paid by Westlake Hospital in Melrose Park — and dismissed the lawsuit involving the estate of Faviola Ochoa.

On June 21, 2010, Ochoa, then 34, was admitted to Westlake in labor.

Following blood testing performed shortly after Ochoa’s admission, she was diagnosed with HELLP syndrome, a severe form of pre-eclampsia — a dangerous pregnancy complication consisting of high blood pressure and high levels of protein in her urine.

HELLP syndrome causes ruptured blood cells, elevated liver enzymes and low platelet levels.

As Ochoa’s labor progressed, she developed hypertension. After delivering a healthy baby boy, Ochoa continued to experience periodic severe hypertension, and her platelet levels fell to below normal.

She received an anti-hypertensive medication. But she suffered a stroke early on June 22.

She was then transferred to Rush University Medical Center for surgery to relieve bleeding on the brain.

Ochoa suffered brain damage due to a lack of oxygen and was rendered a quadriplegic, said Thomas G. Siracusa, a Power, Rogers & Smith P.C. partner who represented Ochoa’s estate with fellow partner Joseph W. Balesteri. She’s unable to speak, relies on a ventilator to breathe and can only eat using a feeding tube.

“She suffered a hypertensive bleed that could have been avoided with adequate management of her blood pressure,” Siracusa said.

At the time of the delivery, Dr. Joseph J. Furlin was Ochoa’s obstetrician.

In 2011, a lawsuit was filed on Ochoa’s behalf in Cook County Circuit Court. The hospital and Furlin were named as defendants.

The complaint alleged that the hospital’s staff nurses and nursing supervisors failed to follow the chain of command to ensure that Ochoa receive the proper medical care she required.

Furling allegedly failed to administer the proper doses of anti-hypertensive medication and failed to address Ochoa’s decreasing platelet levels.

Marilee Clausing and Charles C. Bletsas, partners at Hall, Prangle and Schoonveld LLC, represented Westlake Hospital. Clausing could not be reached for comment.

Furling was represented by Mark M. Burden and Michael J. Borree, both partners at Donohue, Brown, Mathewson & Smyth LLC. Neither could be reached for comment.

Attorneys for the hospital and doctor argued that Ochoa’s blood pressure never reached the levels that required treatment or placed her in danger of bleeding.

The parties settled the case in early April after two mediation sessions with Donald P. O’Connell, the former chief judge in Cook County.

Westlake Hospital will pay $22 million toward the settlement with a combination of self-insurance money and proceeds under an insurance policy. Furling will pay $1 million — his insurance policy limit.

The settlement is a record for a mother injured in childbirth, said John L. Kirkton, editor of the Jury Verdict Reporter, a division of Law Bulletin Publishing Company. The previous high settlement for a birth injury to a mother was $15 million last year in a Cook County Circuit Court wrongful-death case.

Ochoa, her husband, Jose, and their four children live in an apartment building in Melrose Park. Ochoa’s husband and her sister are her current primary caregivers.

The settlement will allow Ochoa to receive 24-hour care and regular physical therapy sessions, Siracusa said. The family plans to move into a handicapped-accessible home.

“This (HELLP) is a syndrome that requires intensive monitoring and aggressive management,” Siracusa said. “A wait-and-see approach can have devastating consequences.”

The case is Jose L. Ochoa, et al., v. Joseph J. Furlin, et al., 11 L 3900.