Repko v. Our Lady of Lourdes Medical Center, Inc., 2020 N.J. Super. LEXIS 204 (N.J. Super. App. Aug. 13, 2020), is not a new case, but it was new to us when learned co-counsel brought it to our attention as support for getting rid of a case from a crap-ridden MDL inventory. We say
We are recovering from a near-trial experience. It settled at the beginning of jury selection, and with that settlement came the usual mixture of relief and letdown. Colleagues congratulate you on the resolution, and you’re not sure what to say. It was certainly a good settlement for the client. But our team had worked up…
Over the past seven weeks we have been sports-starved. Back episodes of The Great British Baking Show do not quite make up for missing the start of baseball season and the NBA and NHL playoffs. But two things have ridden in to the rescue: (1) The Last Dance, the ESPN ten-part documentary about the…
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.