September 8, 2007
"It depends on what the meaning of the word 'illegal' is"
Just to tie up a loose thread from yesterday's news about David Egilman settling with Lilly...
In Pharmalot's first story breaking the news, this comment was reported:
However, Egilman’s attorney, Alex Reinert says that Egilman didn’t admit to anything illegal. A quick read indicates he appears to be correct (although we recognize that other interpretations are possible).
And in the WSJ Health Blog post, there's a similar comment, plus a discussion of what else Egilman admitted to in his affidavit:
Alexander Reinert, a lawyer representing David Egilman, the expert who settled with Lilly, tells the Health Blog that the company mischaracterized his client’s signed statement. Egilman never admitted doing anything illegal and didn’t cherry-pick documents to send the Times. “Lilly has an interpretation we don’t believe is accurate,” Reinert says. While Egilman admitted to violating a protective order, “that’s not saying he did something illegal,” Reinert says.
First, on the question of whether he admitted to doing something illegal, I suppose it depends on what counts as illegal. I generally think of federal court orders as having the force of law, being, you know, oh, what's that phrase? Oh, right -- the basis for the rule of law. Here, Egilman unambiguously admitted [PDF] under oath to violating the protective order duly issued by a federal judge ("I violated Case Management Order No. 3 ('CMO-3'), which is in force in the Zyprexa MDL.").
The CMO (2004 WL 3520247; also available in a big PDF here: Download CMO3.pdf) provides in the endorsement certain acknowledgments about the force of signing. You can see Egilman's signed endorsement here: Download cmo_endorsement_egilman.pdf. In that document, Egilman agreed:
I further agree and attest to my understanding that, if I fail to abide by the terms of the Order, I may be subject to sanctions, including contempt of court, for such failure. I agree to be subject to the jurisdiction of the United States District Court, Eastern District of New York, for the purposes of any proceedings relating to enforcement of the Order.
So he's acknowledged (again under oath) that violation of the Order can result in sanctions, including contempt. This is, of course, not surprising, but bolsters the idea that violation of the order is illegal.
Black's defines "illegal" in a pretty straightforward way: "illegal, adj. Forbidden by law; unlawful." By that or any ordinary meaning of the term "illegal," it seems to me that admitting violation of a court order (remember: court orders = force of law) constitutes admitting an illegal action. (Added: This is consistent with Judge Weinstein's repeated use of the terms "illegal," "stolen," and "conspiracy" in his order, incidentally.)
And even if one were to limit the term to only include acts that are clearly criminal, recall that Egilman was at least concerned enough about potential criminal liability to invoke the Fifth Amendment right against self-incrimination, something he expressly acknowledges again in the affidavit. (See also this post.) That said, if "illegal" is in fact defined in such a constrained way as to only include clearly criminal conduct, it would be at least semi-credible to say that he didn't admit to acting illegally.
As for the second argument -- that he didn't admit to cherry-picking documents -- that seems plainly contradicted by the affidavit itself, which is worth excerpting at some length:
That seems to be at odds with his attorney's statement: "Reinert says that’s not the same as cherry-picking: 'He knew there were other documents but he didn’t have them.'" Note that Egilman says in his affidavit that he reviewed documents and released a set of documents -- i.e., not all of what he had reviewed. Even if he no longer had them at hand, he undoubtedly could have obtained them; to call what he did anything other than cherrypicking would seem to give cherrypickers an unusual definition, to say the least.
--BC (who, as noted repeatedly before, does some consulting work for companies who are or have been adverse to parties for whom Egilman has served as an expert witness, but not including Lilly)
September 7, 2007
Updated: Egilman "Accepts Responsibility," Settles with Lilly for $100K
Pharmalot broke the story of David Egilman settling his part of the document leak with Lilly to the tune of $100,000 (to be donated to charity). The stipulation is available here: Download EgilmanSettlement.pdf, and his affidavit is here: Download EgilmanAffidavit.pdf. (You will note that it indicates that it is page 1 of 80; I am not posting pages 2 through 80, as they are simply Judge Weinstein's order.)
The affidavit is short; in it, Egilman explicitly acknowledges that he released documents that would help the plaintiffs and that there was an alternative perspective he intentionally avoided providing:
Given number 5, this comment from Egilman's attorney (to Pharmalot) is intriguing at least:
However, Egilman’s attorney, Alex Reinert says that Egilman didn’t admit to anything illegal.
Violation of a federal case management order is not necessarily criminal, and in that (narrow) sense, I suppose it's not the admission to "anything illegal," but he explicitly acknowledges violating a court order.
It appears that James Gottstein (the Alaska lawyer who subpoenaed the documents from Egilman and provided them to media) is still in the mix, though I'm still digging through the filings.
Updated again: I've now looked through the dockets of both the district and circuit courts and see nothing that indicates definitively that any of the other parties have settled. That leaves not just Mr. Gottstein but many of the enjoined entities.
Yet another (minor) update: In case you're new to the site and want some background, I've done a number of posts about Zyprexa, most about the document dispute; they're here. Also, I forgot to mention initially that I perform a small amount of consulting for pharmaceutical clients. Lilly is not one of my clients (nor has it been in the past), but I am involved in litigation in which Egilman is or was an expert for plaintiffs.
And another one: Welcome, WSJ Health Blog readers. If others haven't seen the post there, do so; it's a good one. I'm hoping to get a bit more up about the case this weekend.
Our HealthLawProf neighbors post today about two new studies relating to errors in hospitals, exploring the surprising findings that reducing resident hours did not seem to reduce errors.
That's a Heck of a Waiver
You may have heard about the forthcoming CBS series Kid Nation, in which kids are dropped in an isolated location and videotaped while they form a society, etc. Defamer and many other sites have coverage of the waiver required to be signed by participants' parents. The form itself is at The Smoking Gun.
September 6, 2007
$13M Settlement in Rhode Island Nightclub Fire
CNN has more on the settlement, tentatively reached between the plaintiffs and some of the multiple defendants. The settling defendants include the maker of soundproofing material, the pyrotechnics maker and vendor, the company that leased the building, and an alarm company. The parties have recommended that Francis McGovern (Duke) oversee the distribution of the money as a special master.
A number of defendants remain, including concert promoters and Home Depot.
NEJM Editorial on FDA Response to IOM Report
(That's a lot of acronyms.)
Sheila Weiss Smith has an editorial in the new New England Journal of Medicine regarding what the FDA has done since the Institute of Medicine's recommendations regarding improving drug safety last September.
(My usual disclosure: I do a small amount of consulting for for pharmaceutical companies involved in products liability litigation.)
"A Dialogue on Prescription Drug Safety"
American University has announced a series of events "seeking common ground on prescription drug safety." The participants so far are impressive; it's worth watching.
September 5, 2007
Plugging the Pump Handle
I believe I've posted once or twice about "popcorn lung," a horrific condition evidently caused by a product in artificial flavoring used in microwave popcorn. Until recently, the evidence suggested (inconclusively) that the danger was only to workers (bad enough!). But now there appears to be a case in a person whose only exposure to the product was by way of eating a great deal of microwave popcorn.
Clearly the best coverage has been done by SKAPP's The Pump Handle blog. I don't agree with SKAPP on everything, certainly, but they've been on top of this issue for a long time. It's worth a read, both on this issue and daily.
Twerski on the Relevance of Legal Scholarship
The National Law Journal has an essay by Aaron Twerski on the relevance of legal scholarship. Twerski takes on the charge that "the academy is out of touch" and urges professors to connect with the bench and the bar:
Law schools and the law reviews need to do some serious soul searching. Even when writing about the influence of other disciplines, they need to insist on clear and understandable scholarship that judges and lawyers can utilize in their work. Moreover, the academy needs to aim for greater balance and recognize that there is room for true doctrinal scholarship. Academicians can address different audiences in their writings so that the isolation of the legal academy from the legal profession will diminish.
Ohio Tort Reform Law Goes to Voters
LegalNewsline reports that the Ohio Supreme Court has authorized use of a public referendum on the validity of a bill that prevents public nuisance claims in products liability cases. A copy of the decision is available here. Last December, the Ohio General Assembly passed the law, which the Governor attempted to veto. In early August, the Ohio Supreme Court held that the Governor's veto was invalid. (Prior post here). However, "Attorney General Marc Dann is considering a state-backed public nuisance lawsuit against several paint companies," which is why Ohio Secretary of State Jennifer Brunner sought permission for the special referendum.
September 4, 2007
Katrina Insurance Disputes Two Years Later
The New York Times reports on the Katrina-insurance mess:
Insurance companies may have paid out $11 billion to Louisianians in the two years since Hurricane Katrina, but they have also become a new villain in the tales people tell about the slow recovery here. Every neighborhood is full of horror stories about companies that reneged on their promises, offered only pennies on the dollar in settlements, dribbled out payments, deliberately underestimated the costs of repairs, dropped longtime customers and sharply increased the price of coverage.
And it is not just talk. Though, traditionally, relatively few customers sue their insurance companies, about 6,600 insurance-related lawsuits have landed in Federal District Court here; 3,700 of them are pending. Few have gone to trial. Some homeowners have settled; other cases have been dismissed or sent to state courts, which are also handling thousands of disputes.
Thousands of formal complaints have been filed with the Louisiana Department of Insurance, 4,700 of them in 2006 alone. That is just a tiny fraction of the number of people who feel aggrieved, regulators say: for half a year after the storm, calls to the department reached 20,000 a month.
Judge Set Sept. 24th Trial Date for 9/11 Cases
The New York Times reports that Judge Hellerstein has set a 9/24 trial date in the cases filed by victims' families (those who opted out of the compensation fund):
Of the original 95 lawsuits on behalf of 96 victims, 53 cases have been settled, one has been dismissed and 41 cases remain to be resolved, according to court papers. Those 41 cases represent 42 victims, including 10 who were injured. But settlement talks continue, and more cases could be settled before the trials begin.
. . . .
In a reversal of the usual legal procedure, Judge Hellerstein has ordered six trials for damages to take place before any trial for liability, in the hope, he said, that both sides may use those figures as a road map toward settlement. He set dates for two of those damages trials, Sept. 24 and Oct. 15.
September 3, 2007
Spencer Notes Circuit Split on FDA Preemption
Over at SplitCircuits Blog, A. Benjamin Spencer (Richmond, Visiting W&L) notes a new decision by the Northern District of California on whether the Medical Device Amendments to the Food, Drug and Cosmetic Act preempt state law products liability claims. As noted earlier, the Supreme Court has granted cert. on this question.
Greek Victims of Nazi Massacre Sue Germany
The Guardian (UK) reports that Corriere della Sera, Italy's highest appeal court, will hear an appeal this week by the German government over a lower court ruling in favor of Greek descendants of the 1944 massacre in the village of Distomo, Greence:
In 1997, following years of legal wrangling, the supreme court in Athens ruled that the German state should pay the villagers the equivalent of €23m. When the money was not forthcoming, the court gave the plaintiffs a claim on the premises in Athens of the Goethe-Institut, the German equivalent of the British Council.
The Greek authorities blocked the implementation of the court order, but the children of one of the victims took the case to the Florence court after it ruled that the decision could be executed in Italy.
A ruling by Italy's top appeal court would have implications for descendants of the victims of other massacres, particularly in the Balkans.