Archive for July, 2017

Will Mass Tort change because of SCOTUS’ Plavix Decision?

Thursday, July 27th, 2017

A recent decision reached by the U.S. Supreme Court may change mass tort and class action lawsuits, it would not favor plaintiffs who are injured. The case of Bristol-Myers Squibb (BMS) and Plavix it’s blood thinner. The court reviewed California’s Supreme Court’s decision to grant out of state plaintiffs to file and join the California residents case.

The defendant must have some level of contact with the forum State in order for the court to use specific jurisdiction, which in this case is California. According to Justice Alito, “The non-residents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California — and allegedly sustained the same injuries as did the non-residents — does not allow the state to assert specific jurisdiction over the nonresidents’ claims.”

Justice Sonia Sotomayor had a different opinion and wrote, “The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary.”

According the majority who are supported by those for tort reform the BMS and the SCOTUS say it is necessary. There has always been a long-standing issue for reformers with “forum shopping,” where plaintiffs look for more “plaintiff friendly” venues. For example, Philadelphia is known to have a plaintiff friendly venue and as a result most of their mass tort suits are filed by plaintiffs that are out of the state.

Unless the companies were out of Pennsylvania then the SCOTUS decision in Plavix could be the end of this policy.

Justice Sotomayor, disagrees with the decision with the SCOTUS and they are not the only one.

On the surface, an end to “forum shopping” can seem like a bad decision or an improvement to the system. On the other hand, the limitations that could be placed by BMS’s decision could have those forum shopping instead have no forum.

The BMS decision could “make it very difficult for plaintiffs to band together to pull their resources to bring a single action,” said Robert Peck of the Center for Constitutional Litigation. Also, they could run into an issue in cases with more than one defendant, because plaintiffs would have to file suit in multiple venues.

There are some repercussions such as the multiple venues can become expensive leaving the plaintiff unable to seek justice. The mass torts could be broken into smaller jurisdiction- specific sections and it would make it easier for defendant corporations to blame to each other.

The smaller jurisdictions could cause two negative effects. It could cause contradictions between the courts depending on the jurisdiction. For example, it could mean that a court in Pennsylvania could reach a different decision on liability than a court in the state of Texas. The differences between the states would only be resolved by an appeal and then the appellate court would need to be in the same circuit. The last and not most ideal option would be to seek the involvement of SCOTUS but that would not be a great option given the limited number of cases granted certiorari.

The other theoretically bad effect is injured plaintiffs would have restricted access to justice. Mass tort cases and class actions are usually large, multifaceted and cost a lot to manage. However, the smaller jurisdiction-specific mass torts would not be any less expensive. What it could lead to is less law firms will accept the cases because of a reduction in fees that occurs by the lower amount of plaintiffs involved.

Justice Alito and the SCOTUS majority stood for “greater concern for the burden on corporation[s]” according to Mr. Peck rather than for out-of-state plaintiffs who were injured.

The BMS decision could not answer every question as many precedent setting decisions often ten to do. Supreme Court lawyer, Andrew Pincus, of Mayer Brown state that BMS leaves “two big questions” unresolved.

“How much of a connection does there have to be between the claim and the place the lawsuit is filed? Secondly, will [the BMS] ruling mean that class actions will only be filed in a court that can assert jurisdiction over every single class member?”

The BMS decision brought up a question by Mayer Brown’s Andrew J. PincusArchis A. Parasharami and Matt Waring which was “whether the Fifth Amendment’s due process requirement might apply differently to exercises of jurisdiction by federal courts. But this issue does not arise frequently. For the Fifth Amendment to apply, Congress must provide for expansive personal jurisdiction by authorizing nationwide service of process in a particular statute—and Congress rarely does this, as the Court explained in the BNSF decision last month in rejecting the argument that the federal statute there (the Federal Employers’ Liability Act) expanded federal courts’ power to exercise personal jurisdiction.”

The BMS decision could change the mass tort landscape but only time will tell.

Mother of Fatal DUI Crash Victim Unaware Her Son Consumed Alcohol

Wednesday, July 12th, 2017

On Wednesday, the mother of Stone Hill, one of the 17 year old victims of a deadly car crash took the stand and testified against the woman who is accused of allowing underage drinking in her home.

When Tina Hill took the stand started her testimony by explaining to jurors that her son Stone was her only child.  She also told the jurors he was involved in various sports in high school such as baseball, wrestling and football. He would have been a senior in high school playing on the varsity football team and after graduating Stone was planning on playing College football.

Stone and Nicholas Mankin, 16, were just two minutes from Stone’s house when his Toyota 4Runner crashed while on Slab Road.

The boys were leaving Jodie Tierney’s house, where according to testimony she repeatedly allowed her son and his high school buddies to drink alcohol. Co- prosecutors Tim Barker and Sarah Buhite alleged she would regularly allow the teenagers to consume alcohol with out any consequences and even purchased alcohol three times.

After Stone and Nick were killed in the wreck, Tina Hill informed the jurors that Tierney came to her house.

“She showed up at our house, said she was a nervous wreck,” Tina Hill remembers. “We asked her what happened that day.”

Tierney remembers the teenagers were “happy and laughing,” and she didn’t know what they did after they left her house recalls Tina Hill.

During Tina Hill’s cross examination, Douglas Bare, defense attorney, asked if she had been told by anyone else that the boys were going to Nick’s home before heading to Stone’s house.

She confirmed that Tierney told her the boys had gone to Nick’s house. However, there is no other account or evidence that would propose the teens actually did go to Nick’s house. According to Tina Hill there had never been any mention of the teenagers drinking alcohol from Tierney ever.

In a statement from Stone’s mother Tierney had failed to mention that prior to the fatal car crash another boy’s father had been called due to the teenager becoming ill from the alcohol consumption.

Tina Hill and her husband always locked up their alcohol as a precaution when Stone’s friends were over to avoid any temptation.

“We removed the temptation,” she said.

If she had know that her son along with the other teenagers were drinking at the Tierney there would have been consequences.

She said, “He not only would have had his (car) keys pulled, he would not have been allowed to return there.”

Tammy Heffner, the mother of Cody Heffner, a member of the group of friends also testified on Wednesday.

The son of Tammy Heffner was according to her there “most weekends,” and that she also did not know the teenagers, including Cody were drinking there.

“He would’ve been in a lot of trouble” if Tammy Heffner said had known she added he would have been grounded “for quite a long time.”

“Cody knew how we felt about it,” according to her.

Tina Hill and Tammy Heffner both told jurors they never had given the teens alcohol in the past.

When Tina was testifying she states she used the iPhone “find my phone” function on her iPhone to keep track of Stone’s and where he was since he was expected home just after 7pm that evening.

Power went out when she was walking up the stairs from the basement after doing laundry.

“I got a sick feeling,” she said. Stone’s iPhone was found on Slab road and she told her husband they need to go because something was terribly wrong.

When the Hills arrived they saw smoke coming from the burning SUV, at first Mr. Hill thought of running to the stopped traffic in hopes of finding Stone.

“But I knew it was him,” she stated.

Tina Hill knew Stone was in the accident with Nick when she saw the rescue worker hold up two fingers to the other rescue workers.

Stephen D. Tierney, 46-year-old, on Monday pleaded guilty to providing minors with alcohol minor corruption.

According to the Judge, on Aug 21st the charges of involuntary manslaughter and child endangerment will be dropped at his sentencing.

Stephen Tierney’s plead guilty for allowing the teenagers to drink alcohol at his home and not for the deaths of Stone and Nick.

Wednesday afternoon the testimony will continue.

However, Jodie Tierney is out on bail, she is  only charged with two counts each of involuntary manslaughter and child endangerment, and one count each allowing alcohol and corruption of minors.

True Religion Is Living on a Prayer

Monday, July 10th, 2017

According to court documents submitted by True Religion on Wednesday the maker of designer jeans has filed for bankruptcy. They are planning to do a redo of itself to wrestle with the hundreds of millions in debt including declining sales.

In the court documents the company has liabilities in the amount of $534.7 million and only $243.3 million in assets.

However, there is a light at the end of the tunnel. In a press release from True Religion they said the company has already agreed to a deal with their creditors to reduce it’s debt by $350 million. As part of the agreement the creditors will receive huge stakes in ownership of the company.

The company plans to stay afloat during the Chapter 11 bankruptcy proceedings, True Religion says it expects the court to approve the plan to restructure within the next three to four months.

The jean designer plans to “close or consolidate underperforming store locations, and renegotiate lease terms” in order to help improve the outlook and increase savings.

John Ermantinger, CEO said, “invest in growing our digital footprint” as a plan to restructure the company.

There are many retail companies that have been overturned by the rise of e-commerce, True Religion is not the first or the only retailer struggling.

As digital power houses such as Amazon soar in this digital era many traditional retail department stores or brick and mortar stores struggle.

In this year alone Amazon has hit a record high with their stock. More than 300 other retailers have unfortunately filed for bankruptcy and the entire industry has already experienced many layoffs.

True Religion broke into the fashion industry well before online retail was more popular. It was founded in 2002 in Los Angeles and the designer jeans grew quickly into a pop culture favorite. True Religion as a brand was made popular by hip hop lyrics and appearances in fashion magazines.

Unfortunately, the court documents state that today True Religion’s popularity has collapsed and the sales have been declining every year.

Dalibor Snyder, True Religion’s CFO stated the company has tried to “aggressively cut costs,” they have issued layoffs and store closures but it was not enough to minimize losses.

The next step was restructuring and bankruptcy protection. True Religion hopes to reduce is debt by 72% if the restructuring plan is successful according to Snyder.

Courts Decide Wisconsin’s Medical Malpractice Awards Are Unconstitutional

Thursday, July 6th, 2017

Wisconsin’s $750,000 cap on medical malpractice claims was deemed unconstitutional by an appellate court stating a woman who lost all four limbs and her husband from Milwaukee should be awarded a sum of $16.5 million for their pain and suffering.

“We conclude that the statutory cap on non-economic damages is unconstitutional on its face,” said Judge Joan Kessler in a 19-page unanimous opinion written by the three-judge First District Court of Appeals panel.

Kessler continues by saying “Wisconsin’s cap on non-economic medical malpractice damages always reduces non-economic damages only for the class of the most severely injured victims who have been awarded damages exceeding the cap, yet always allows full damages to the less severely injured malpractice victims.”

In 2011 a 57 year old woman, Ascaris Mayo went into septic shock as a result of an untreated Strep A infection, the same infection that causes strep throat. All four limbs had to be amputated due to the infection. The appeal involves her award of $25.3 million from her medical malpractice case.

The case is suppose to be go to the state Supreme Court to be appealed.

Dan Rottier, the attorney representing Mayo and her husband, Antonio, stated the $8.8 million awarded for economic damages would be set aside for any previous of forthcoming expenses. “That’s not putting money back into her pocket,” said their attorney.

According to Rottier if the Supreme Court were to overturn the decision and the cap remained the same at $750,000 the Mayos would not receive enough money for their pain and suffering, economic damages, and expenses incurred by the legal case. Attorney’s fees are also cap in medical mal practice cases at one third of the first million plus 20 % of the remaining award.

The appellate court from Milwaukee struck down the full cap and went beyond Milwaukee County Circuit Judge Jeffrey Conen, who did not declare the cap unconstitutional instead he claimed it was unconstitutional when in regards to the Mayo trial.

Since 1986 Wisconsin has had many caps on medical malpractice damages. In 1995 a cap was enacted for $350,000 but was replaced in 2005 by a cap of $750,000 due to being arbitrary and a violation of the equal protection provision of the states constitution.

The Journal Sentinel published a few articles in 2014 describing how the insurance fund which is used to finance strong defense against malpractice cases plus the cap on damages combined with other state laws make it incredibly hard for victims to find adequate representation.

The state mandated first step in filing a medical malpractice suit is to request mediation. In 1987 there were 410 mediation requests filed in Wisconsin. As of last year the state records shows 116 mediation requests filed.

Judge William Brash an appeals judge in the Mayo case agreed with Conen’s decision and wrote he agreed with the state’s cap on non economic damages as unconstitutional when applied to the Mayo trial.

“It would be unreasonable for the Mayo’s whose lives have been so drastically altered due to these events to have to bear the brunt of the legislature’s tort reform,” said Brash, quoting Conen’s 2014 decision.

No evidence of negligence on the behalf of the physician or assistant from Columbia St. Mary’s Hospital was found in the Mayo malpractice case. However, the case did note that the doctor Wyatt Jaffe and his assistant Donald Gibson, did not give Mayo “alternative medical diagnoses” which would of helped her search for another form of treatment.

2011 Mayo had gone to Columbia complaining of a high fever and pain in her abdominal. At the time she was not made aware she had a septic infection and that her infection could be treated with antibiotics.

“Instead, Mayo was told to follow up with her personal gynecologist for her history of uterine fibroids,” said Kessler.

The following day she went to another hospital.

“Ultimately, the sepsis caused nearly all of Mayo’s organs to fail and led to dry gangrene in all four of Mayo’s extremities, necessitating the amputation of all of Mayo’s extremities,” according to Kessler.

The Wisconsin Hospital Association and the Wisconsin Medical Society strongly criticized the appeals court decision on Wednesday.

“We disagree with the Court of Appeals conclusion that there is no evidence or rationale supporting the Legislature’s policy decision to protect access to health care in Wisconsin by enacting Wisconsin’s cap on non-economic damages in medical malpractice cases,” Eric Borgerding, association president, stated which foresaw the Supreme Court’s overturned decision.

Elimination of the cap would “negatively impact Wisconsin communities’ efforts to attract physicians to provide accessible quality health care to their residents,” according to the statement.

Caps on malpractice awards have not been proven to improve or protect the quality of medical care or attract skilled Doctors according to Kessler’s decision.

“The number of physicians participating in the (state insurance) fund has increased every year, indicating that the cap increase has had little to no effect on physician retention in Wisconsin,” Kessler stated. “Indeed, data … indicates the existence or non-existence of a non-economic damages cap has no demonstrably consistent effect on physician retention anywhere.”

In 2014, per capita in other states physicians paid more in medical malpractice claims than doctors in the state of Wisconsin according to a Journal Sentinel story.

The general counsel for the Wisconsin Medical Society, John Rather said the data that was being used from 2005 was out dated and not relevant to the case. Illinois state cap on malpractice insurance premiums were struck down in 2010 they have increased by 18%.

The appeals court judges seemed as if they  “didn’t really consider a lot of information provided by … our amicus brief” presented in the case, said Rather. “We  think there is more to the story than that opinion lays out.”