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A Milkaholic Settlement

     Is the glass of milk half empty or half full. It’s hard too tell.  As a follow- up to a previous blog, Lindsay Lohan and E-Trade have settled the lawsuit that had been brought by Lohan.  

     If you’re keeping score at home, it seems that Lindsay got little more than embarrassment. The case of Lindsay Lohan versus E-Trade was filed in March, because of an E-Trade ad that had  a baby named “Lindsay”. While Lindsay has never been associated with investing, she apparently thought that they were taking aim at her by calling the baby, named Lindsay, a “Milkaholic”.

     Well, this riveting litigation has been settled, with Lohan receiving “a little money out of the deal”. It’s hard to believe that I devoted two blogs to this lawsuit but the combination of the E-Trade ads, and this subject matter just keeps pulling me back for more. No word yet on whether the local Italian restaurant is being sued for their menu item “Lohan Bourbon Lasagna”.

Point of View Attacks

     I stood proudly on my toes as the song leader directed us to a hymn of praise. Unfortunately, I was too young to read the words but it didn’t stop me from pretending. As loud as I could, or at least as loud as could be expected of any 4 year old, I sang “Lead on o kinky turtle, the month of March has come”.

     Hopefully, I was blending in with the rest of the congregation. I certainly wasn’t trying to be disrespectful to the song. However, that’s how the words, “Lead on O King Eternal, the day of march has come“, sounded to me.  From my point of view, with head barely at eye level to the pew, I was seeing and hearing and singing it, with great determination.

     I am now going to tackle a controversial topic that involves the allegations of child abuse and the Catholic Church. Normally, I don’t dip into tremendous controversy, but in my eyes, it is really hard to see any defense for any of that conduct. Usually, the reason that I read the articles on these events really relates to my questions of “Who knew what and when?” In addition, was there an intent of cover-up, from those in high places.

     As a law firm, we have not been involved in any of these claims or litigation. In that context, I was interested to read a CNN article that identifies one specific lawyer as the driving force behind this litigation. Based on the article, it is thought that he is responsible for a big chunk of the $2.5 billion dollars, that has been paid by the US Catholic Church, to date, to settle sex abuse cases.

     Here is where I am fascinated by the point of view. Those defending the church as spokesmen or lawyers, attack this lawyer. They basically say that he is more interested in publicity than justice. As the President of the Catholic League for Civil Rights put it,  that lawyer “has sued the Vatican many times and never won”. The Vatican’s lawyer says that Jeff Anderson, the lawyer responsible for these lawsuits and the ones now proceeding against the Vatican directly, says that Anderson lawsuit has no merit and is just a publicity stunt to rehash old claims. (Associated Press) I guess “winning” is not the same as making them pay settlements. Another point of view.   

     I have condensed these articles into a brief blog. I think it’s something worth thinking about. On one hand, there is a lawyer that has made it his practice, since the early 80’s, to hold the Catholic Church accountable for the actions of Priests such as the Massachusetts Priest, James R. Porter, who admitted to having molested some 50-100 children. On the other hand are those who believe that this lawyer is nothing but a publicity hound whose motives have no good basis in fact, because he is attempting to blame the Vatican for things for which there is no responsibility.

     In the play “King Henry VI”, William Shakespeare penned the words that that have been repeated, almost as a joke, to clean up society by “The first thing we do, let’s kill all the lawyers”. In fact, the context of the scene and lines was Dick the Butcher adding to the promises of   the traitor, Jack Cade.   What was really being said is not to clean up society by getting rid of all the lawyers; but this was a method, to make sure that tyranny would rule.

     I have seen many surveys on what the general public thinks of lawyers. Usually, the statistics show that lawyers are thought of in line with politicians and used car salesmen. Many people, though, will say that they don’t like lawyers but they like their lawyer. In the context of this story, it seems that this one lawyer, Jeff Anderson, has made a difference. He has made a difference in accountability and, I don’t think that attacks or him, his motives or his methods, carry much weight when it involves these horrific allegations of child abuse.  I hope you’ll let me know your thoughts from your perspective.

Hormone Therapy Ruling

Yesterday I posted a quick blog on testimony of a defense expert. Wyeth (now owned by Pfizer) had called an expert to attack the medical testimony for the global hearing regarding all upcoming hormone therapy trials in Philadelphia. Since our firm has one starting in April, with the jury being selected in March, this ruling would have a direct impact on this upcoming trial.  

As set forth by a news story in "The Legal Intellligencer", Dr. Lewis A. Chodosh, a professor of cancer biology at the University of Pennsylvania, testified for the defense. Chodosh said that differential diagnosis "is the heart and soul of what it means to be a physician." But Chodosh said that the typical breast cancer has many different pathways stimulating its growth, and differential diagnosis cannot isolate which growth pathway is the cause of a patient's cancer. He said more than 95 percent of breast cancers have unknown causes.

Analyzing this drug company's defense is sometimes like eating dry cereal, it's just hard to get through. However, in the context of what they are trying to do, they keep "running out" a defense to try, to see if it might work. For several trials, they had an expert who testified that she found cancer in each of the women at trial, before any hormone therapy was taken. She found cancer, contrary to any other medical testimony or treating doctors in each case. Those juries did not find her very persuasive, so I guess, that we will continue to hear new stories as a defense. Fortunately, the Judge did not find this testimony persuasive either. 

Salt Harms

Last week, as the snow was descending on the house and yard, it looked beautiful. I was out in it with my "camera phone", taking pictures. It was a white Christmas and I could almost hear Bing Crosby singing in the backyard.

This morning, the snow wasn't as fun. As I drove out of my driveway, I got stuck. I spent the next half hour turning, reversing and driving forward, to escape the ice. I even got the amazing idea of using the other car to push it out of the rut. Of course, I was only to blame because I had not done any shoveling. I've always heard that snow shoveling is really worse on your heart than eating lard. I'm staying with that idea, too.

It shows how things have changed. I remember people strapping on chains to the tires. Now, everyone has fancy tires that are supposed to dig in the snow. Many cars have all wheel drive. Truck drivers are not the only ones going the speed limit now, in the winter.

I also remember all the salt that was spread on the highway. Road salt was always supposed to make it easy for the snow plows and helped to keep the roads from freezing. According to the Environmental Protection Agency, 15 million tons of salt was used in the USA last year. Plus, since it's "natural", shouldn't we feel good about it?

Well, of course, it makes the blog because we now know that it causes problems. A Google search brings articles on salt harm; some more than 10 years old. We now know that melting snow and ice causes the salt to run off on to vegetation, soil, streams and rivers. The runoff kills fish and vegetation and has even been found in residential drinking water. Fortunately, some other alternatives are being used and Scientists are working on new ideas.

In the practice of law, you sometimes find out information in litigation that might not be helpful, but is interesting. For instance, when someone broke into a Tylenol manufacturing plant and added poison to some of the bottles, deposition questioning showed that the cotton in those bottles, served no purpose. It was only there because consumers would not buy the tylenol without it. People thought that cotton kept them fresh. So, every bottle was manufactured with "fake fresh cotton". Of course, good also came out of that litigation, because safety caps were installed.

   Knowledge that someone could break into a medicine bottle caused changes. Knowledge that salt can cause harm that is long term, is also now instituting change. What has been acceptable for years does not make it right. Now, I just need to learn how not to get stuck in my own driveway!   


Year End Negotiations

Louis "Satchmo" Armstrong used to tell the story about a scare that he had in his dressing room, one night. "This big hood crashed into my dressing room in Chicago and instructs me that I will open in such and such a club in New York, the next night. I tell him I got this Chicago engagement and don't plan traveling. I turn my back on him to show that I'm cool and I hear SNAP! CLICK!"

Armstrong continued, "I turn around and he has pulled this big revolver on me and cocked it. It looks like a cannon. I look down at it and it looks like death. Then I say, 'maybe I do open in New York tomorrow.'"  In describing that story in the "Secrets of Power Negotiating", the author links it with a quotation from Al Capone. "You can get much farther with a kind word and a gun than you can with a kind word alone."

Yesterday, my wife Jackey was baking cookies. I became the official taster. I would run down during the football games and grab another. This morning, I weighed myself and had lost some weight over the weekend. So, I negotiated with myself and ate a few more cookies at work. I think I won that negotiation. It also shows that life is about a negotiation. Obviously, it doesn't have to be about violence, but there are pressure points in every negotiation and the year end can have some of that.

Recently, an adjuster remarked that she was taking some time off that day, to take her daughter shopping. I had to bite my tongue because sometimes I wonder if these adjusters have a human side to them. Just as I probably get biased against insurance companies and their methods, I see adjusters who have become so feisty, that they lose sight of the human loss. It seems, to me, as though it's just another file. Especially when they joke about the injuries.

My email "in box" is filled with cases that are in litigation. Some resolve through settlement. Drug Company Schering-Plough agreed to settled a claim that was brought by the State of California, that the drug company deliberately inflated its wholesale price for the drug Albuterol, causing Medicaid to overpay millions in in pharmacy reimbursements.(Bloomberg) . A gun didn't cause the settlement but, I'm sure, possible prosecution may have had leverage.

Teddy Roosevelt said, "Speak softly and carry a big stick". In the world of law, about the only thing that is a threat is a possible verdict that exposes that defendant/insured to personal asset responsibility, that would be above the coverage amount. In South Carolina, if the verdict is well in excess of the offer, the presumption is on the insurance company to prove that they evaluated and negotiated in good faith. In Virginia, there is very little threat of that. In addition, politicians have been reticent to enact any kind of meaningful bad faith laws. They just remind that Virginia was picked 1st in business by Forbes Magazine.

For now, some companies do want to settle claims to close them out in this year end push. Others are seemingly avoiding any attempt at settlement. As one adjuster put it after offering 14K on a 13K medical bill/clear liability case, "it's just what I think it's worth". When I pushed her on why she thought it was only worth one thousand above medical bills on a crash that totaled the vehicles, she had no answer. It was obvious that our negotiations had come to an end. And so it is, year end negotiations. I'm still looking for Teddy Roosevelt's big stick.   

Wyeth Verdicts

On October 26, a Philadelphia jury returned a punishment damage verdict in the case of Barton v. Wyeth. This, on the heels of a 3.7 million compensatory verdict that had been entered against Wyeth Pharmaceuticals, for the actual damages that Mrs Barton had suffered, from taking the Wyeth hormone therapy drug, Prempro. Because another hormone therapy trial against Wyeth was going on a few doors down in the same courthouse, the Judge sealed the punitive damage verdict until the conclusion of the other pending case.  However, as of today, that verdict has been unsealed to reveal a $75 million dollar punitive verdict.

On Friday, in the case of Kendall v. Wyeth, the jury returned a verdict of $6.3 million with Wyeth being responsible for 60% of the verdict and Upjohn Pharmaceutical, responsible for 40%. (Story) Today, the jury returned a punitive verdict to be added to the $6.3, in an amount of $16 million against wyeth and $12 million against UpJohn for a total punitive verdict of $28 million, making the sum total verdict in Kendall to be $34.3 million.

Under our hormone therapy update section, I am also providing a listing of the verdicts that have been compiled in the hormone therapy cases. (Download Jury Verdict List) As previously blogged, Wyeth has listed a "scorecard" that did not sync with this listing. However, I think that it is difficult for them to ignore the last three verdicts that have been significant findings of fault against them. In addition, I am attaching a short video (5m:15sec) that also gives a news type update that is being sent to news stations. It's true that a picture is worth a thousand words; so this video is certainly worth more.


The Krispy Kreme Invitational

My next jury trial is right after Thanksgiving. With the holiday coming up, that means that I make sure that all depositions are completed, all exhibits, jury instructions and verdict forms are finalized and I review the upcoming testimony. Time to get "all the ducks in a row".

On Friday, I received a phone call from the defense attorney on this upcoming trial. He advised that his client was "going to admit liability". Unfortunately, this is the course of conduct for most cases now. The course of conduct is that, despite the facts, defense lawyers deny everything throughout the litigation process.

I started this blog out with a title that, I thought, might be an attention grabber. On Saturday, in Virginia Beach, the 2nd Annual Krispy Kreme Invitational took place.(Story).  The four mile event required each runner to eat at least a half dozen donuts. Each additional doughnut that was eaten along the way, deducted three minutes from a runner's time. Each pint of milk drank deducted five minutes.

On Friday, I was also in Richmond Circuit Court opposing a defense attorney's request for a continuance. Similar to the upcoming trial previously mentioned, this case has a defendant driver who also received ticket and pled guilty. In opposing the continuance, I reiterated the facts of fault and that this defendant was not admitting responsibility.

The Judge said to the defense attorney, "You are going to admit liability, aren't you?" "Well Judge, I'm not sure that my client will let me do that", said the sheepish lawyer. The continuance was granted but the trial was only moved one month, so the pressure stays on the insurance company for the defendant. I'm guessing that I will receive a similar call on this case, about one week before trial, to also admit liability.

I am connecting the "Donut Run" with the reality of today's litigation. It doesn't make a lot of sense to run 4 miles and eat donuts at the same time but the story does make me chuckle. In the same way, I watch the defense lawyers get up and explain why they have just admitted liability. However, they seem to quickly add that they don't admit responsibility for the injuries. With that, the issue of damages is still a jury question.

In these upcoming trials, my hope is that the jury will compare these defense arguments to the story of the Donuts. Running on a sugar high is probably not part of a successful recommended fitness regimen. As such, how do you wait to admit liabilty for more than two years, when the facts haven't changed? Then, how do you you say that you caused the crash, but none of the injuries? Well, at least this blog gave me a hunger for these upcoming trials.

A Misdemeanor Wiener

A Wall Street Journal story that involves food, marketing and controversy. Plus, how can you beat the title of this blog, that this story created. I had to write about it but my abbreviated mention hardly does it justice, so I hope you'll click to it as well.

A hot dog stand has opened in Chicago called Felony Franks. The 64 year old owner thought he was doing a community service by opening a business that would hire ex-convicts. Instead, he has the neighborhood in an uproar. Members of the community have vowed to stay away until the name of the place is changed.

The owner, James Andrews, thought he was doing a service by offering those out of prison, a second chance. He said that about three years ago, while driving by a hot dog stand, it just popped in his mind. He spent about 160K to refurbish a shuttered Polish sausage stand and began serving menu items like the Misdemeanor Wiener and the Chain Gang Chili Dog. The restaurant slogan is, "Food so good it's criminal".

City government is trying to make him change the name. They won't grant permission to put up a sign with that name. Plus, a new city ordinance has been proposed that would even prohibit the proposed sign from extending from the building. All this, in an attempt to get Andrews to change the name of Felony Franks. They are also opposing a curb cut that would allow a drive thru.

 How has the free enterprise system of capitalism responded? According to Andrews, he is doing about 30K in business per month, despite the controversy. In addition, he has received more than 1000 job applications from former convicts and is constantly inundated with unsolicited requests to purchase franchise rights to Felony Franks.

The Institute for Justice, a civil rights law firm out of DC, has contacted him about helping him fight the sign ordinance, as a violation of his First Amendment Rights. At this time, Andrews says he has no plans to litigate. However, I'm guessing that the news coverage, plus this article in the Wall Street Journal has been good for business. Hopefully enough to keep the Mustard flowing! 


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