Thursday, November 20, 2014
On Tuesday in Harrisburg, the justices heard arguments over whether informed consent forms should ever be admissible in strict med mal cases (those without allegations of informed consent violations). Plaintiff's lawyer argued the forms could be used in a prejudicial way to insinuate that consent for the procedure included consent to risks caused by negligence. Defense lawyer responded that the form could be relevant depending on the facts of the case. Chief Justice Castille indicated that, for him, the case came down to the fact that a patient cannot consent to negligence. Seven jurisdictions have adopted a blanket ban of informed consent forms in strict med mal cases; Pennsylvania will decide whether to become the eighth. The Legal Intelligencer has the story.
Wednesday, March 30, 2011
On Friday, I mentioned two amusement ride deaths -- one train ride in South Carolina, and another on a roller coaster at the Houston Rodeo. As predicted, the latter has already resulted in a suit. You can see the complaint and answer at my other blog, MassTort.org.
Wednesday, January 19, 2011
More original documents from Kyle Graham (Santa Clara), this time from that famous hunting case, Summers v. Tice.
Summers's Court of Appeal Brief Download Respondents' Brief, Tice's Court of Appeal Brief Download Tice's Appellate Brief (Ct of App), Court of Appeal Clerk's Transcript Download Clerk's Transcript (Ct of App), Application for Hearing to Supreme Court of California Download Application for Hearing.
Wednesday, January 12, 2011
Those of you using Franklin, Rabin, & Green encounter Hammontree v. Jenner as the first case in the book. I happen to be teaching it today. Used to illustrate the choice between negligence and strict liability for unintended injury, the case involves the defendant having an arguably unforeseeable seizure and injuring one of the plaintiffs in her bicycle shop.
TortsProf Kyle Graham (Santa Clara) copied a number of original documents from the case, and has made them available as PDF documents.
Complaint Download Hammontree Complaint; Answer Download Hammontree Answer; Discovery Download Hammontree Discovery; MSJ Opposition Download Hammontree MSJ Opposition; MSJ Minute Order Download MSJ Minute Order; Plaintiffs' Supplemental MSJ Brief Download Plaintiff's Supplemental MSJ Brief; Defendant's Supplemental MSJ Brief Download Defendant's Supplemental MSJ Brief; Jury Trial Minute Orders Download Hammontree Jury Trial Minute Orders; Jury Trial Exhibit List Download Hammontree Jury Trial Exhibit List; Selected Proposed and Given Jury Instructions Download Hammontree Selected Proposed and Given Jury Instructions; Verdict Download Hammotree Verdict; Judgment Download Hammontree Judgment; Defendant/Respondent's Appellate Brief Download 20100714114315758
Monday, July 28, 2008
It took a bit longer than I expected, but my article, When the Bell Can't be Unrung: Document Leaks and Protective Orders in Mass Tort Litigation, is now out in The Review of Litigation (the article is not online there, but available via Lexis and Westlaw). Its citation is 27 Rev. Litig. 565. It will be reprinted later this year by the American Enterprise Institute, and we're working on a panel discussion addressing it.
Tuesday, December 11, 2007
As the documents below make clear, the case was initially filed in arbitration and then in the Southern District of Texas; the arbitration has been stayed pending a decision on the motion to compel arbitration in federal court. The plaintiffs acknowledge that Jones's employment agreement requires arbitration in at least some circumstances; they argue alternatively that the agreement is invalid and that it does not apply to this case.
A few documents of interest:
The complaint: Download leighcomplaint.pdf
The motion to compel arbitration: Download KBRCompel.pdf
Jones's opposition to the motion to compel arbitration: Download LeighOpposition.pdf
As the PIRG blog points out, there's pending legislation that would narrow the scope of arbitration provisions greatly, focusing on arms-length commercial transactions and not (probably) suits like this one.
Update: In the comments, Ted points out that much of the case file is available for free on Justia. I could've avoided the PACER charges! Curses! He also notes that the arbitration complaint's allegation vary fairly significantly from the complaint in district court, and that Jones's lawyer did some fairly transparent forum shopping. And finally, he notes that Halliburton is a defendant though Jones didn't work for Halliburton; she did, however, work for a Halliburton subsidiary. (Halliburton divested KBR earlier in 2007, well after the events in question.) Obviously there may be corporate veil issues, but it doesn't seem crazy to list Halliburton as a defendant.
(Later addition: In a second comment, Ted notes that the complaint merely alleges alter ego and says it won't fly. He may be right; though I've been involved in litigation in which another Halliburton subsidiary was also involved, I don't remember much about how separate its subsidiaries really are. Without knowing more, it's hard to have much of a view besides "still not crazy" on including Halliburton as a defendant. Certainly helps get press.)
Update 2: The third amended complaint (which I somehow missed the first time through the docket) is here: Download Leigh3rdComplaint.pdf
Wednesday, November 21, 2007
The Smoking Gun has posted a number of new documents in the tragic case of Megan Meier, who committed suicide in 2006 after being rejected by a friend she met via MySpace -- a friend who, it turns out, was actually the mother of a former friend pretending to be a young boy. On the last page, the mother (one Lori Drews) reports that she's anticipating civil litigation to be instigated by the girl's parents, which raises various issues of duty and legal cause, among other things (for any negligence claims).
Sunday, July 29, 2007
A couple of weeks ago, a sixteen-year-old girl fell to her death while riding an "Air Glory" ride at a Christian festival in Wisconsin. This ride is somewhat similar conceptually to the popular SkyCoaster rides, but is very different in setup. It appears that the Air Glory ride uses a construction crane adapted to use for the ride's purposes.
The state has now released its inspection report: Download AirGloryReport.pdf [PDF]
The report concludes that the ride itself, though violating code in many ways, had no defect that caused the death. It does not quite reach a conclusion about what did cause it, but hints strongly at operator error:
Mr. Armelin was working on the right side of the platform, and Mr. Ross was working on the left side. Mr. Ross said that Mr. Armelin was a new employee having worked for Mr. Ross only about two weeks. Mr. Ross also said Mr. Armelin also had a tendency not to lock the carabineer after attaching the rider to the ride. Mr. Ross said he always worked on the left side when working with Mr. Armelin so that he (Mr. Ross) could check the carabineer before attaching the safety rope. Mr. Ross stated if the carabineer was locked, there would be no way it could come loose when a person was attached to it. Mr. Ross also said that if the carabineer was locked and if the safety rope was properly attached it would not be possible for anyone to come loose from the ride. This is consistent with the statements that Mr. Ross provided to the Oshkosh Police and with Commerce’s independent investigation.
The state has imposed new restrictions on rides owned by the Air Glory's owner and announced its intention to implement an emergency rule regarding similar rides, and to re-evaluate the ride safety program in Wisconsin. There's been no lawsuit filed (yet).
Tuesday, July 10, 2007
That's suggested by a pleading filed back in May: Download 20070529_extension.pdf
It appears that Egilman was at that time very close to a settlement, while Gottstein was awaiting the resolution of those talks.
(In case you're just joining the story, David Egilman was an expert for plaintiffs in the Zyprexa litigation. In cooperation with Alex Berenson of the NYT, he was subpoenaed by James Gottstein, an Alaska lawyer advocating against forced psychiatric medications. The documents were widely distributed; Judge Weinstein concluded that their distribution violated his protective order and enjoined some parties from further distribution and made noises about contempt. Go here for many more posts. My article about it continues to muddle along.)
Friday, June 15, 2007
I occasionally wondered in practice the origin of the term "Bates numbers." (In case you don't know, Bates numbers are the sequential numbers at the bottom of documents produced in litigation.) Well, hooray for Wikipedia, which notes that the origin is from a patent issued to Mr. Bates and links to a history of the successor entity.
Hey, it was interesting to me, anyway.
Tuesday, March 20, 2007
I was pulling these items together for a presentation I'm making in a couple of weeks, and figured they might be of more general interest. Here's the briefing on the motion to dismiss in the MySpace lawsuit that arose from the alleged sexual assault of a minor girl in Austin, Texas, by someone she met through MySpace:
Wednesday, February 14, 2007
And the story does a pretty good job of giving an overview, including the judge's conclusions about the paper's reporter's conduct. The opening paragraph:
A federal district judge in Brooklyn ruled yesterday that confidential marketing materials belonging to Eli Lilly & Company about its top-selling anti-psychotic drug Zyprexa must be returned to the company by a doctor and a lawyer who, the judge said, engaged in a scheme to leak them to the news media.
The story does later note that Weinstein called Berenson's conduct "reprehensible," but I probably would have included him in the lede.
Tuesday, February 13, 2007
Bloomberg has a story on Judge Weinstein's order. The new stuff is here:
New York Times spokeswoman Diane McNulty noted that Berenson and the newspaper declined Weinstein's invitation to come to court to explain how they obtained the documents.
``Unfortunately, that resulted in an opinion which vastly overstates Alex's role in the release of the documents,'' McNulty said. ``We continue to believe that the articles we published were newsworthy and accurate and we stand by our reporting.''
Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, called the judge's order ``troubling.''
``Any time you have a federal judge finding that a reporter participated in a conspiracy, that's a frightening notion,'' she said. ``This is an area where I don't think the law is crystal clear.''
* * *
Dalglish added that, while Weinstein didn't issue any sanctions against Berenson, ``it's not often that you have a federal judge on the record finding that a reporter engaged in a conspiracy.''
The story adds that Mr. Gottstein is contemplating an appeal and that Berenson is on a leave to write a book.
Meanwhile, the AP story has the plainly inaccurate title, "Court Halts Spread of Lilly Documents," when of course the documents remain easily findable and will stay so; Judge Weinstein made no real effort to prevent their further distribution, so long as the distribution is done by someone other than those to whom they were originally leaked. It also adds this:
Egilman's attorney, Edward Hayes, said: The judge has "told us not to do certain things, and our response is, 'We're sorry, and we'll never do it again.'"
In a statement, Gottstein insisted that his only concern was "patient safety" and that he never meant to defy the court.
"This was not a conspiracy to harm Eli Lilly," he said.
Some overall reactions to Judge Weinstein's order (linked to below):
The basic takeaway is that Judge Weinstein is completely convinced that Dr. Egilman, James Gottstein, and Alex Berenson conspired (a term he uses, along with "conspiracy," thirty-eight times in the order) to avoid the protective order, and he wants to do what is practical to mitigate the effects of that conspiracy. But he recognizes the futility of really preventing the documents' distribution (something I've noted before too). The bottom line result -- enjoining the people who received the documents from Gottstein and have not returned them, refusing to enjoin websites, and presumably scaring the hell out of the "conspiracy" trio -- tracks those conclusions precisely. The actual impact on the availability of the documents will be approximately zero.
I'm a little skeptical of the Court's First Amendment conclusions, but I'm not a con law guy either, so my view is relatively uneducated. And the breadth with which he sees his powers to enjoin seems perhaps enthusiastic, but it's not something I've looked at carefully.
The order points up what is a real problem (one I'm writing about in long form, hopefully to get submitted this spring) -- that past treatment of leaking documents in disregard of protective orders -- hasn't put in place the right kind of incentives to ensure that orders are enforced. When litigants and courts perhaps once could hope to unring the bell, today it's impossible with internet distribution. Judge Weinstein certainly hints in this order that he's going to make at least two of the three involved very uncomfortable, but to my knowledge courts have been if not blase, not particularly enthusiastic about tracking down or punishing those who violate their orders. He expressly acknowledges the need to set up proper incentives:
Conspirators in the instant case who deliberately thwarted a federal court’s power to effectively conduct civil litigation under the rule of law, as well as those in concert with them, should be enjoined to deter further violations of this and other courts’ orders.
* * *
It is not necessary now to decide whether in the long run the public was better served by this conspiracy to flout CMO-3 than by seeking direct and open revelation through amendment of the court’s protective order. Even if one believes, as apparently did the conspirators, that their ends justified their means, courts may not ignore such illegal conduct without dangerously attenuating their power to conduct necessary litigation effectively on behalf of all the people. Such unprincipled revelation of sealed documents seriously compromises the ability of litigants to speak and reveal information candidly to each other; these illegalities impede private and peaceful resolution of disputes.
There's another effect of electronic communication that I don't think I've mentioned before (and that I'll also address in the article), and that's the exponential growth of the number of pages in play. I don't know how many pages have been produced by Lilly; the Order references "millions" of documents. One case I was involved in had, if memory serves, something approaching tens of millions of pages produced, with individual witnesses sometimes having hundreds of thousands of pages of documents on a server. Colleagues who had been involved in pre-e-mail litigation suggested that it would have been uncommon to see even a million pages in one case; perhaps someone else can confirm.
It boggles the imagination to think that a litigant can do a particularly good job of designating documents accurately as to confidentiality, and no doubt it frustrates people like Dr. Egilman to see documents he believes are inaccurately designated as confidential (especially since he is, I think, unlikely to conclude that Lilly's commercial concerns are a reasonable basis for keeping many thinigs confidential). And that frustration -- that view that there is massive overdesignation -- may well make experts, attorneys, litigants, and others more prone to want to disregard protective orders. (It's worth observing that Judge Weinstein concludes that in fact the bulk of the documents were appropriately designated as confidential.)
Of course, neither Gottstein, Egilman, Berenson, nor indeed anyone else (besides apparently some third-party payors) made any effort to follow the mechanism set forth in the protective order to de-designate the documents. As I've mentioned before, if you're looking for a judge who is likely to be friendly to such an effort, Judge Weinstein is a good one. But there was no effort at all.
And of course, the plaintiffs' signing on to keeping the documents confidential may reflect a recognition that keeping the documents secret gives the plaintiffs greater leverage in further settlement discussions (recall that tens of thousands of cases have already settled).
In any event, some money quotes:
A New York Times reporter, Alex Berenson, was aware of the protective order. He discussed with a plaintiffs’ expert, Dr. David Egilman, means of escaping the order’s restrictions and obtaining protected documents in the expert’s possession . . . even though Egilman had agreed in writing to be bound by the order. . . .
Both Berenson and Egilman were cognizant of the fact that paragraph 14 of CMO-3 took account of the possibility that the protected documents could be subpoenaed by courts or executive agencies. So Berenson provided Egilman with the name of an Alaska attorney, James Gottstein, unconnected to the instant litigation, who might be willing to employ a pretense to subpoena the documents and help disseminate them in violation of the protective order. . . .
To carry out the scheme for obtaining and disseminating the protected documents, Gottstein intervened in a state case in Alaska wholly unrelated to Zyprexa. In that case, he then subpoenaed from Egilman confidential documents he knew to be under the protective order which bore no relevance to the Alaska litigation. The subpoenaed documents were sent by Egilman to Gottstein pursuant to an expedited amended subpoena about which Lilly was deliberately kept in the dark so that it would be unable to make a timely objection. . . . Gottstein immediately sent the confidential documents on to Berenson and others. . . . .
None of the three conspirators, Berenson, Egilman, and Gottstein, sought a lifting or modification of the protective order, despite the declassification procedures provided for in paragraph 9 of CMO-3. See In re Zyprexa, No. 04-MD-1596, 2004 WL at *5.
While the order ends up rejecting some of the arguments (presented by the EFF and others) that the breadth of the injunction sought by Lilly would run into constitutional problems, Judge Weinstein does explicitly recognize the First Amendment relevancy:
A perplexing issue is presented by Lilly’s request for an injunction against websites to which the conspirators sent the documents or which might have been used for further dissemination by those to whom the documents were originally sent. . . . The internet, with its almost infinitely complex worldwide web of strands and nodes, is a major modern tool of free speech and freedom both here and abroad. Its reach extends as far as, and perhaps exceeds, that of newspapers and other traditional media. The law is rightly hesitant about allowing government –– including the courts –– to inhibit and restrict the use of such modern instruments of communication. See U.S. Const. amend. I.
I think it was perhaps more significant than was made explicit here that the PSC was on board:
Irresponsible people may exercise their own right and opportunity to speak in a manner abusive and constrictive of the rights of others on the internet, in the press, and in other fora. Those whose rights have been abused by the conspirators in violation of the court’s protective order include Lilly and tens of thousands of plaintiffs and their attorneys who depended upon CMO-3 and sealing orders of the court to effectively prosecute this important litigation without unnecessary breach of the parties’ privacy. It is significant that both the PSC and Lilly support the issuance of the injunction now being issued.
On the notion that the Times's situation is analogous to the Pentagon Papers:
Nor is this a case of a newspaper obtaining, with clean hands, documents provided to it by government employees, whistleblowers, or protestors. See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979) (“[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.”) (emphasis supplied). It is unlike New York Times Co. v. United States, 403 U.S. 713 (1971) (hereinafter “Pentagon Papers”). In the Pentagon Papers case, there was no suggestion that the documents were purloined at the New York Times’ or Washington Post’s instigation. Here, a reporter was deeply involved in the effort to illegally obtain the documents. . . . Affirmatively inducing the stealing of documents is treated differently from passively accepting stolen documents of public importance for dissemination. . . . But see Bartnicki v. Vopper, 532 U.S. 514, 528-29 (2001) (noting that the issue has been left open). The New York Times itself appears to recognize the distinction. See The New York Times, Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments, 9 (Sept. 2004) (“Staff members must obey the law in pursuit of news. They may not break into buildings, homes, apartments, or offices. They may not purloin data, documents or other property, including such electronic property as databases and e-mail or voice mail messages. They may not tap telephones, invade computer files or otherwise eavesdrop electronically on news sources. In short, they may not commit illegal acts of any sort.”).
On what happened after Gottstein started to distribute the documents:
Individuals to whom Gottstein sent the documents began devising schemes to evade court orders to return the documents even before any such orders had been issued. In an email dated December 16, 2006, Robert Whitaker wrote to Gottstein: “I would consider building a website that would, ahem, make all the documents available. What could they do to me? And how could they know how the documents got to me? There are several channels apparently that could be the source. You should proceed now in whatever way makes it easiest for you, and let others worry about getting this information out or making it public.” Pet’r Findings of Fact, supporting ex. 30.
[Time to make dinner for the kids. More later.]
Good heavens, that was fast. Briefing finished yesterday, and here's the order: Download memorandum_final_judgment_order_injunction_07504.pdf
I haven't read it yet, but it appears to conclude that the immediate recipients are still within an injunction, but that secondary (and those further out) are not. A very quick glance suggests that this paragraph is a reasonable summary of what Judge Weinstein thinks about Egilman, Gottstein, and Berenson:
Berenson’s, Egilman’s, and Gottstein’s brazen flouting of this court’s protective order raises serious questions about their responsibility. The court, based on the evidence before it, is not satisfied that they can be counted on to return all copies of the documents they may have in their possession or control. Egilman and Gottstein are therefore being permanently enjoined as noted in Part IV.H.5, supra. Berenson is not being enjoined since no injunction against him has been sought by Lilly. See Part IV.H.4, supra.
More -- much more -- to come, probably this afternoon.
Some new documents of note are noted below. More are available on the PsychRights website; I haven't, for example, gone through all of the battling proposed findings of fact.
- MindFreedom et al.'s brief [PDF] opposing the extension of the injunction as to them;
- David Egilman's brief [PDF] about...something. There hasn't actually been a request to hold him in contempt or to otherwise sanction him that I've seen, though one is no doubt coming. But he instead (and I think wisely) is challenging Lilly's proposed findings of fact that would, if adopted, prejudice his defense of the expected contempt motion.
Among other things, he argues that since the civil findings here would likely impact a criminal contempt proceeding against him, his decision to invoke his Fifth Amendment rights should not be used to create a negative inference (as it could in a civil setting). He also contends that his silence should not be held against the third parties involved in the injunction setting.
Probably the core issue is and will be what a "reasonable opportunity" meant in the CMO and whether Dr. Egilman provided Lilly with that opportunity to object to the production of documents. The problem as I see it is the change in subpoena date - a change that Lilly was never notified of - and the (in my view reasonable) inference that the date was changed to prevent an objection from being made. (As a reminder, the original subpoena for the documents had one date; the date was moved up substantially, but that new date was not given to Lilly.)
And then he also argues that Lilly overdesignated documents (which looks probable from news coverage anyway) and that its potential violation of the CMO should prevent it from invoking its protections now.
- The EFF's brief [PDF] on behalf of various third parties objecting to the extension of the injunction as to them.
- Various third parties brief [PDF] seeking to intervene to challenge confidentiality and the Court's Order [PDF] denying that motion without prejudice, essentially delaying it until after the injunction matters are resolved.
- Terrie Gottstein's opposition [PDF] to extension of the injunction as to her, contending among other things that an e-mail used by Lilly falls within the marital privilege.
- Jim Gottstein's opposition [PDF] to extension of the injunction. He argues, among other things, that the CMO should be voided as being far too easy to abuse through overdesignation of documents. He also makes the argument that Lilly failed to establish that, even if the CMO were valid, that it was violated (much the same argument as Egilman presents).
It also presents for the first time that I've seen an allegation that third-party payors challenged the confidentiality of various Zyprexa documents back in 2005, and that Lilly failed to timely respond, contending that the documents were made non-confidential then. Lilly's reply brief (cited below) seems to deal with this allegation fairly convincingly; the parties involved continue to be dealing with that challenge and nobody involved in it contends that Lilly waived the challenge.
He also presents his arguments that Alex Berenson's involvement was just good old-fashioned reporting, and that finding a case just to use to subpoena the documents was proper public interest litigation.
- Lilly's reply brief.
Thursday, February 8, 2007
The Bazelon Center for Mental Health Law has gotten in on the Zyprexa documents party, filing a motion (press release) on behalf of Consumers Union and several mental health organizations seeking the de-designation of the documents at the center of the document leak dispute.
Of note, none of the groups making the request have had any involvement in any of the dispute to date, and there's been no allegation that they're involved in distributing the documents. They explicitly state that they have not actually seen the documents and are basing their motion on the NYT coverage. Indeed, judging from their affiliations (psychiatric groups, heads of state mental health agencies, etc.), I think it's safe to say that they're generally on the other side on many issues from folks like James Gottstein, MindFreedom, and the like.
The argument centers on what you'd expect it to - the lack of trade secrets in the documents as described in the Times, the lack of countervailing interest in keeping the documents secret, and the public interest. It does not make the bell-has-run-already argument.
It's a well-done brief and worth a read: Download ZYPREXAMOTION.pdf
Tuesday, February 6, 2007
I posted last March about the ongoing litigation relating to a train derailment in Minot, North Dakota. The federal judge overseeing the suits has ruled (Download Lundeen.pdf) that the all of the claims in the state tort cases are preempted by the Federal Railroad Safety Act.
There's nothing earth-shattering but it's an interesting read.
(As I noted last March, I clerked for Judge Rosenbaum.)
Through the NYT's counsel, Alex Berenson has declined the invitation from Judge Weinstein to testify about how Berenson obtained the Zyprexa documents, and in particular his apparent involvement in coordinating their production.
The letter is here: Download NYTLetter.pdf
Friday, February 2, 2007
Some new briefs in the Zyprexa document leak case:
- Lilly's brief (Download 22extendinjunction.pdf) and revised proposed findings of fact (Download 22findingsoffact.pdf) relating to its request to continue the injunction. They are continuing to pursue the secondary recipients/distributors of the documents as well as Gottstein and Egilman, and make clear that they will be seeking sanctions against the primary people involved. Exhibits (which are voluminous) are presently available at Gottstein's site.
- MindFreedom's brief (Download MindFreedom2-1-07Brief.pdf) requesting that the documents be made public.