We are on vacation this week. The aim was to stay in this hemisphere, yet get the feel of being in an old European city. Less air travel, but still with the overcharging and the hard stares in response to our dodgy foreign language skills. So with that hint, guess away as to our present
Anyone interested in what’s wrong with mass torts in today’s litigation landscape should read the recent article in the New York Times, “How Profiteers Lure Women Into Often-Unneeded Surgery,” which ran in the paper on April 14, 2018, and is available online here. Briefly, the article exposes litigation (and pre-litigation) conduct that amounts, at…
Last week we served on a jury in a medical malpractice verdict. To put it mildly, we were surprised that we made it through the peremptory gauntlet. The verdict? It was an enlightening and edifying experience.
The fifth time was the charm. On four prior occasions, we had marched to the…
Like many of you, on Friday mornings we turn to the “Legal Lions and Lambs” section of Law360. It is not only voyeurism. We are constantly working on things in media res (the middle of things), building slowly and gradually to a climax that hardly ever arrives. Ninety percent of cases settle, and that is…
Our weekly search for new drug/medical device cases for 1/13/17 turned up something unusual – not of particular substantive significance, but unusual. Two of the opinions included citations to Wikipedia.
Wikipedia? You mean the comprehensive online encyclopedia that is crowd-sourced, so that anybody – even us – can edit/alter the information contained on the entries (at least, most of them)? That’s it. Since the provenance of the information on Wikipedia is unknown, as lawyers we’ve been taught never, ever to cite to it as authoritative in filed papers (we often cite to it on the blog). After all, given the high stakes of most of our litigation, an attorney citing to Wikipedia could have just added the information to which s/he is citing.
[I]f Wikipedia were regarded as an authoritative source, an unscrupulous lawyer (or client) could edit the Web site entry to frame the facts in a light favorable to the client’s cause. Likewise, an opposing lawyer critical of the Wikipedia reference could edit the entry, reframing the facts and creating the appearance that the first lawyer was misrepresenting or falsifying the source’s content.
Peoples, “The Citation of Wikipedia in Judicial Opinions,” 12 Yale J. L. & Tech. 1, 24 (2010) (quoting Richards, “Courting Wikipedia,” Trial, at (April 2008)). Obviously, that kind of bootstrapping oneself into authority isn’t allowed. If lawyers want to cite ourselves, we should at least have to write law review articles.
So we thought it would be fun to see what we could find in the way of Wikipedia references in judicial opinions involving product liability litigation or prescription medical products, and even both. This post details what we found.
First, courts (or masters) have gotten in trouble for excessive reliance on Wikipedia. In a Vaccine Act case, a special master declined to hold a hearing, and instead relied on internet sources such as Wikipedia. That produced a reversal. As to Wikipedia, the court stated:
[T]he exhibit introduced by the Special Master indicates that its information was drawn from Wikipedia.com, a website that allows virtually anyone to upload an article into what is essentially a free, online encyclopedia. A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.”
Campbell v. Sec’y HHS, 69 Fed. Cl. 775, 781 (2006). But see Keeler v. Colvin, 2014 WL 4394467, at *3 (D. Colo. Sept. 4, 2014) (allowing administrative law judge to cite Wikipedia in vaccine case; “[t]his Court finds no per se prohibition on citing Wikipedia in judicial opinions”).
This is one of those stories you simply cannot make up.
We were using technology to get some ideas about technology. That is, we were surfing around the internet to find descriptions of the successful use of technology in litigation. Our eyes grew weary as we scrolled from screen to screen. There was a lot of same-old-same-old. Then we found an article in the Legal Times from 2005 entitled, “Jurors, Watch the Screen.” You can see the article here. Even as far back as 2005 it was becoming clear that one could use snazzy technology without suffering from the Goliath effect – the perception that your client must have deep pockets. After all, both sides at trials and depositions were using PowerPoints, videos, and arresting graphics. Jurors had come to understand that anyone with a laptop could put on a multi-media show. (Lawyers used to talk about a trial-in-a-box. But by 2005, we went up against a plaintiff lawyer who had a trial-in-a-laptop. He was smooth. He was impressive. He lost.)
Lately, we’ve seen some plaintiffs add gag order requests to their complement of in limine motions in advance of significant trials. Those of us who participated in the Bone Screw litigation remember plaintiffs attempting – and failing − to prevent the defendants from communicating with their customers (implanting physicians) about that litigation. Unfortunately, no order resulted. The first gag order relating to advertising involving civil litigation was entered at about the same time as our Bone Screw brouhaha in a securities-related case. Koch v. Koch Industries, Inc., 2 F. Supp.2d 1409 (D. Kan. 1998). The court gagged both sides equally, and only after both sides agreed. Id. at 1415 (“plaintiffs also ask the court to enter an order prohibiting the defendants from advertising” [and] “defendants apparently agree that the court should preclude both sides . . . from advertising”).
Advertisements published or to be published by the parties in this case, whether selling products or ostensibly serving the public interest, seemingly carry messages directed at swaying public sentiment to that party’s side in this case. In short, this case will tried in the courthouse; any attempt to try this matter in the media ends now. In reaching this decision, the court has considered less restrictive means of preventing unfair prejudice attributable to pretrial publicity. Unfortunately, the court can devise no content-based restriction that will be fairly and equally applied to the parties. In light of the parties’ respective requests for restraint, a total ban on advertising is not only simple and expedient, but seems most equitable.
Id. See also Pfahler v. Swimm, 2008 WL 323244, at *2 (D. Colo. Feb. 4, 2008) (rejecting plaintiffs’ request for civil gag order). Moreover, no matter what the parties might have been trying to communicate to potential jurors in Koch (there had also been a rather questionable opinion “poll” taken by one of the parties), we’re sure that they weren’t discussions of life saving medical products – or even corporate feel-good advertising of the sort seen while watching “Meet the Press” and other similar Sunday talk shows.
For once, our happy birthday wish really has something to do with births, specifically the significance of birth cohorts for litigation strategies and tactics. The actor Paul Rudd is celebrating his birthday today. We like Paul Rudd. We liked him when we first saw him in Clueless. We liked him in all those Judd Apatow and Apatow-esque movies, such as The 40 Year Old Virgin, Knocked Up, Forgetting Sarah Marshall, and I Love You Man. Rudd is likeable even when he is playing a jerk, as in Wet Hot American Summer (both the film and the Netflix series). IMDB lists 100(!) acting credits for Rudd. Rudd usually plays comedy, but we also saw him in a grim Broadway play called “Grace” a couple of years ago. We liked him in that. Pretty much everybody likes Rudd. There’s even a current Bud Light ad campaign where Seth Rogen and Amy Schumer mention how everybody likes Paul Rudd. Rudd seems to have lots of friends in Hollywood. He shows up in projects with the same people again and again, as in the Anchorman films. He has been in five films with Elizabeth Banks, for example. In fact, this ensemble-ness is something we’ve noticed with Generation X entertainers. They seem very collaborative. They show up in each others’ projects, sometimes uncredited, in a free-flowing, generous manner. (Contrast that with the leering booziness of the Rat Pack). Gen X has been defined in various ways, but those definitions seem to cluster around the cohort of people born between 1965 and 1981. Rudd was born in 1969. Ben Stiller was born in 1965. John Cusack was born in 1966. Apatow was born in 1967. Banks was born in 1974. Gen X is a much smaller cohort (approx. 47 million) than the Baby Boomers (80 million) and the Boomers’ children, the Millennials (76 million).
Has there ever been a more maligned generation than X? They were called slackers and whiners. They were deemed the sandwich generation, bitter about the Boomers’ relentless self-centeredness and the Boomers’ seeming determination to keep the seats in corporate America warm for the Millennials. The economy seemed to have no great love for X-ers, and the X-ers returned the favor. These generational generalizations are necessarily wrong almost as often as they are right, but everybody plays this game, so we’ll play along. According to the conventional wisdom, as in a widely read 1990 article in Time Magazine, Gen X-ers are indecisive, have low SAT scores and short-attention spans, and sneer at status. It was also said that a huge chunk of Gen X has been wounded, maybe even scarred, by divorce. Every generation is said to have its big childhood (or ‘emerging adulthood” – a term invented for Gen X) imprint moments. For Boomers, the JFK assassination, Vietnam, and Watergate are the unforgettable events. Gen X’s biggest moment was supposedly sitting in a classroom and watching the Challenger shuttle blow up with a schoolteacher aboard. But the conventional wisdom ( e.g., a 1997 article in Time) has shifted. It’s as if we fogies woke up one day and realized that Gen X cuts a pretty pleasant profile. It’s a stereotype, of course, but Gen X is now viewed as prizing work-life balance, multiculturalism, tolerance, and collaboration. The X-ers still resist snobbery, but express that sentiment by prizing and elevating the quotidian. Is it any accident that Aaron Franklin, the reigning guru of barbecue, is an X-er? Take a stroll through your average downtown, and much of what makes that downtown wonderful is the work of X-ers. Who do you think is responsible for all those microbrews on tap, as opposed to the bad old days where Schlitz was the exotic option?
A little over four years ago we reported on our visit to the Mass Torts Made Perfect conference in Philadelphia. MTMP is a plaintiff lawyer organization. Every year it conducts a conference in Las Vegas, where plaintiff lawyers get together and plot our clients’ destruction (Okay, that was a bit too melodramatic) That Las Vegas…
For the second time in a week we are considering a former professor at our law school, though this occasion swims in sorrow. Before he became a Justice on the Supreme Court, before he became a Judge on the DC Circuit, Antonin Scalia taught at the University of Chicago Law School. Many of the eulogies we are hearing this week highlight things about Scalia that remind us of how well he fit in with that remarkable faculty: the relentless intellectual jousting, where arguments but not the arguers were skewered. There must not have been much lounging in a faculty lounge with Scalia, Posner, Epstein, Easterbrook, Sunstein, Stone, et al. (We cannot overstate our disappointment at reading Epstein’s complaint that when Barack Obama taught at the law school the future president displayed little enthusiasm for the robust intramural debates taking place all around him).
When the pundits discuss Scalia’s legacy, they usually emphasize his decisions on guns or flag-burning, or his sharp dissents in cases involving the death penalty or gay rights. Not all of those opinions were to our liking. But defense drug and device law nerds will always have a soft spot in our hearts for Justice Scalia’s opinion in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), where he held that most tort claims against PMA devices are expressly preempted by a federal statute. The decision is logical. The writing is clear. (It is not surprising that Scalia has co-authored books with Bryan Garner that urge lawyers to be more direct, concrete, and muscular in their writing.)
Let’s honor Scalia in a way he would have liked – by saluting his logic and his prose in the Riegel decision. But let’s first offer a prologue by way of considering Scalia’s concurrence/dissent in the Cipollone (1992) case. That case was about preemption of tort claims against cigarette manufacturers. The court’s opinion was authored by Justice Stevens and was a Brunswick stew. Some of it made sense and some of it was squirrelly. As with so many Stevens decisions, things that at first blush seem relatively sensible become muddy once you wrestle with the real-life consequences down the road. Stevens held some things preempted and some things not, but good luck figuring that out once you’re down to actual cases. By contrast, Scalia’s opinion in Cipollone is crisp and intelligible. One thing he was especially crisp on was the silliness of the presumption against preemption. As Scalia reasoned, the issue is what was the Congressional intent, as manifested by the plain words of the statute. There is no need to indulge in any presumption in making out that intent. Moreover, a presumption against application of a doctrine that can arise in the absence of any Congressional pronouncement whatsoever, such as conflict preemption, makes no sense.