A noteworthy podcast: I join Dr. Saurabh Jha [@RogueRad on Twitter] for an lengthy discussion of how American tort and medical malpractice law has changed over the past century, similarities and differences with Britain, how ethics in the legal field stacks up against ethical trends in medicine and the pharmaceutical business, contingency fees, the successes and shortcomings of legislated tort reform, trends in the courts, incentives for medical testing, and much more. It’s all part of Dr. Jha’s podcast series, associated with the Journal of the American College of Radiology. You can listen here.
A “web of concealment and highly questionable ethical practices by experienced attorneys who should have known better”: a court has unsealed a scathing report on the conduct in the State Street case of a leading class action firm, Labaton Sucharow, and Garrett Bradley of the Thornton Law Firm in Boston. The court took particular notice of Labaton’s connections through a Houston middleman (to whom it had agreed to pay an undisclosed $4.1 million fee) to the Arkansas Teacher Retirement System, which served as institutional plaintiff [Daniel Fisher/Forbes, Amanda Bronstad/NLJ] Earlier here and here.
- “Egregious” conduct: Fourth Circuit upholds $150,000 sanctions against attorneys who “challenged the authenticity of a loan agreement for two years before revealing that they possessed an identical copy, obtained from their client, before filing the complaint.” [Six v. Generations Federal Credit Union]
- Food bill: Congress seems intent on not letting the public find out how well grocers do from the SNAP program [Jonathan Ellis, USA Today]
- “Why Trump’s Higher Tariffs Now are Unlikely to Result in Lower Tariffs Later” [Coyote]
- After 10 years, Nathan Myhrvold’s patent assertion fund idea hasn’t done so well [Nathan Vardi, Forbes]
- Potential of “cottage food” laws remains unrealized [Baylen Linnekin]
- Why noted regulation critic David Schoenbrod is also critical of the regulatory reform proposal known as REINS [Philip Wallach, Real Clear Policy]
- “A Lawyer Who Helped an Exoneree Blow Through $750,000 Is Under Investigation” [Joseph Neff, Marshall Project]
- Department of State agency accreditation delays help worsen decline in international adoption [Kim Phagan-Hansel, Chronicle of Social Change]
- Fifth Circuit affirms sanctions award against ADA attorney Omar Rosales over “reprehensible misconduct” including “fabricating evidence” and “fraud on the court.” [Deutsch v. Phil’s Icehouse]
- Baltimore’s school mismanagement, GOP delegates cool on beer reform, non-citizen voting, Metro subway decay and more in my new Maryland roundup [Free State Notes]
- Eccentric English judge of olden days: “The Incoherence of Serjeant Arabin” [Bryan A. Garner]
- “L.A. Lawmakers Looking To Take Legal Action Against Google For Not Solving Long-Running City Traffic Problems” [Tim Cushing, TechDirt on controversy over Waze routing of traffic onto steep-graded street]
Citing “falsehoods,” “deceptions,” and “inflammatory evidence” on the plaintiff side, Judge Jerry Smith, writing for a Fifth Circuit panel, has overturned a $151 million hip implant verdict won by prominent attorney Mark Lanier against Johnson & Johnson. Reports the ABA Journal:
The court said Lanier had presented father-and-son orthopedic surgeons as unpaid experts, emphasizing their compelling pro bono testimony while contrasting the “bought testimony” of the defendants’ experts. Yet Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent checks totaling $65,000 to the surgeons after the trial along with thank-you notes.
The pretrial donation check and the post-trial payments “are individually troubling, collectively devastating,” Smith wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that [one of the surgeons] had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”
New York Times deep dive into the ethical morass of pelvic-mesh-suit recruitment, in which lawsuit shops recruit women into often unnecessary and sometimes dangerous surgery to remove implanted material, a step needed for claims to be lucrative. [Matthew Goldstein and Jessica Silver-Greenberg, New York Times] Opening paragraphs:
Jerri Plummer was at home in Arkansas, watching television with her three children, when a stranger called to warn that her life was in danger.
The caller identified herself only as Yolanda. She told Ms. Plummer that the vaginal mesh implant supporting her bladder was defective and needed to be removed. If Ms. Plummer didn’t act quickly, the caller urged, she might die.
And how, in the age of HIPAA, did the recruiter on the phone come to know so very much about the medical history of the woman being pitched? What follows is a story of conduct that is shocking, appalling, unethical — but neither surprising nor unusual to those of us who have been writing about the abuses of the litigation business for many years. Plaintiffs suing over back pain after accidents, for example, are regularly steered into unnecessary back surgery, and plaintiffs in the breast-implant litigation were steered into removal surgeries for which the only indications were legal, not medical. These alas are the incentives of injury litigation: run up the medicals (the higher the bill for testing and therapy, the higher the claim value) and if you’re suing over a drug or therapy itself, maybe disengage from it to show your fears are genuine.
All that said, congratulations to the Times and reporters Goldstein and Silver-Greenberg for an investigation that shines a bright light on the need for reform. More: Beck.
Harvey Weinstein, assisted by the law firm of celebrated attorney David Boies, “hired private investigators, including ex-Mossad agents, to track actresses and journalists.” At least one agent used false names and identities to insinuate herself into accusers’ and journalists’ circles. “Techniques like the ones used by the agencies on Weinstein’s behalf are almost always kept secret, and, because such relationships are often run through law firms, the investigations are theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court.” [Ronan Farrow, The New Yorker]
Would it help to abolish confidentiality in settlements, as some urge? “California State Sen. Connie Leyva… said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.” [Danielle Paquette, Washington Post “WonkBlog”] “Getting rid of NDAs reduces accusers’ bargaining power so they end up with lower money settlements or perhaps no settlements,” notes HLS Prof. Jeannie Suk Gersen on Twitter and at more length in The New Yorker. Might that impair their chance of getting a private lawyer interested in their case in the first place? “[We would be choosing] to impair the ability of private parties to resolve a dispute in favor of the public interest.” [Scott Greenfield]
Federal judges have fined the Jacksonville law firm of Farah & Farah $9.1 million over improperly handled claims against a fund set up after litigation to compensate smokers in the state of Florida [WTLV/First Coast News]:
The judges’ order states 1,250 frivolous tobacco claims were filed by Farah & Farah and the Wilner Firm against the Engle Trust Fund….
…cases filed collectively by Jacksonville attorneys Charlie Farah and Norwood Wilner prompted a U.S. Attorney Special Master seven month investigation into possible misconduct in 2012.
The investigation revealed some cases filed by the attorneys were for deceased clients, non-smokers, those who did not suffer from one of the required diseases, and 572 that did not authorize the attorneys to file lawsuits on their behalf.
More: Glenn Lammi.
“That weekend, she called her parents several times. She also called two hospitals to see if they had been in an accident. She called their landlord, too, and he agreed to visit the house. He reported that there were no signs of them. She told her husband, ‘I think someone kidnapped my parents.'”
Of all the scams and outrages in the legal system that I’ve written about, few get me as angry as does guardianship abuse. Rachel Aviv’s New Yorker report from Nevada shines a light into some dark places of elder law and of the human heart. Earlier here and here (2009 Brooklyn), here (Connecticut), here (North Carolina), here, etc. (Bronx).
“Three partners at the [law] firm and its chief financial officer are majority owners of a mail-order pharmacy in the Philadelphia suburbs that has teamed up with a secretive network of doctors that prescribes unproven and exorbitantly priced pain creams to injured workers — some creams costing more than $4,000 per tube…. These sorts of doctor- and lawyer-owned pharmacies are largely unknown outside of the local workers’ comp industry and are not fully understood even within legal and medical communities, because the lawyers and physicians behind them have kept a low profile or sought to conceal their ownership….Clients who click through to the pharmacy’s website are told: ‘Focus on your recovery. Let us handle the fine print.'” [William Bender, Philadelphia Daily News]