Friday Links

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“You have the right to remain silent! Anything you say can and will be used against you!” a law enforcement official advises Superman, who foolishly decides to waive those rights immediately. “I’m guilty!” Superman exclaims. Um, perhaps he should have retained counsel? This scene comes from the cover of Action Comics #556, published way, way back in 1984, but certainly long enough after the Warren Court jurisprudence for Supes to be aware that he shouldn’t make such declarations of guilt. Oh, my.

Well, it appears that a 2012 post made Reddit last week. How about that?

Don’t forget: You can follow Abnormal Use on Facebook here and on Twitter here. Drop us a line sometime, will you?

Our favorite legal tweet of late (dealing with signature lines in lawyer emails):

Pharmaceutical Companies Sued Over Marketing Of Pain Killers

Painkiller abuse has  become a big problem in the past decade, and now, three governmental entities are seeking to hold pharmaceutical companies responsible.  The City of Chicago and two California counties have filed separate lawsuits alleging that “aggressive marketing” by several pharmaceutical companies has purportedly led to addiction and abuse of painkillers by their taxpayers.  The named defendants are Jansen Pharmaceuticals, Purdue Pharma, Actavis, Endo Health Solutions Inc., and Cephalon. The core allegation in these suits is that the companies fraudulently downplayed the known risks of painkiller addiction in their marketing materials, which allegedly misled the public and led physicians to overprescribe the drugs.  This conduct allegedly costs taxpayers and the government millions of dollars in the form of unnecessary prescriptions and emergency medical care.  The City of Chicago’s complaint alleges that in Chicago alone there were over 1,000 ER visits attributable to painkiller abuse in 2009.

These lawsuits are an interesting attempt to regulate, through litigation, what is already one of the most heavily regulated industries in the United States.  Matters relating to prescription drugs typically fall under the jurisdiction of the FDA.  Moreover, federal laws and regulations already require that pharmaceutical promotional materials must be supported by substantial scientific evidence and must reflect a “fair balance” in describing the benefits and risks of the drugs.  See, e.g., 21 U.S.C. 352(a); 21 C.F.R. 201(e)(g).

Not surprisingly, the pharmaceutical companies are already angling to dismiss these lawsuits.  Earlier this month, they moved to dismiss the City of Chicago’s complaint on, among other grounds,  the ground that this matter should be decided by the FDA under the primary jurisdiction doctrine.  The primary jurisdiction doctrine is a judicial doctrine whereby a court tends to favor allowing an agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.

Abnormal Interviews: Actress Roma Maffia from Disclosure and Double Jeopardy

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Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and makers of legal-themed pop culture. As you might recall, we here at Abnormal Use have been fortunate to interview individuals in the entertainment industry who have participated in legally themed television shows and films.  We have interviewed Phil Morris, the actor who played the flamboyant attorney, Jackie Chiles, in “Seinfeld,” as well as the late, great James Rebhorn, who played, among many other roles, the FBI expert witness in My Cousin Vinny. We recently had the opportunity to speak with actress Roma Maffia, who has appeared in a spate of blockbuster films and television series, including Disclosure, Double Jeopardy, ”Nip/Tuck,” “Boston Legal,” “Law & Order,” “Profiler,” and Nick of Time, to name just a few. She has played a lawyer or judge in many of these roles. A fun historical note: Today is the fifteenth anniversary of the release of Double Jeopardy, a film in which she played a jailhouse lawyer dispensing advice to Ashley Judd’s character.  (You remember the crazy premise: If she has been wrongfully convicted of a murder that never occurred, then double jeopardy would prevent her prosecution for later murdering the purported original victim.). Additionally, this December 4 will be the twentieth anniversary of the release of Disclosure, the Michael Crichton sexual harassment thriller in which she played a lawyer advising the Michael Douglas character in his dispute with his employer. The interview is as follows:

ON THE ANNIVERSARIES OF DISCLOSURE AND DOUBLE JEOPARDY

Kyle White: Were you aware that the anniversaries were coming up for those movies?

Roma Maffia: Well, I wasn’t. It’s pretty shocking. No, I wasn’t.

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LEGAL EXPERIENCE PRIOR TO FIRST LEGAL ROLE IN DISCLOSURE

RM: None!  . . . [I]n New York, I didn’t do much television or film, but I acted the role of the character who would be arrested by the police, such as a prostitute or a drug addict, or some kind of felon as opposed to a lawyer.

KW: Interesting.

RM: It’s after I did Disclosure . . . . Well, you know, you get type cast. So, because it was Disclosure, all of a sudden I became the lawyer. . . . . I did do research on the movie, but before the movie? No, I had nothing to do with law.

KW: So, you are saying that Disclosure was the first time you had been involved with acting as a lawyer or a judge?

RM: First time, absolutely, first time!

ASSISTANCE FROM THE LEGAL COMMUNITY IN PREPARING FOR ROLES

RM: On those roles as lawyers, any role, pretty much, I’m sure myself, like a lot of actors, do a lot of research. So, I’ve been very fortunate to have really great people. Also, when I did Disclosure, it was fantastic because it was the big case of the football player that was televised.

KW: The O.J. Simpson trial?

RM: Yes. So, I got to watch all day of the trial. So I got to watch Marcia [Clark], the female lawyer, sort of be my role model for Disclosure. For Double Jeopardy, I also had legal help and advice, [and I] went to a prison in L.A. So, I’ve been very lucky to have lawyers help me or forensic pathologists. Everyone in a specific field is very, very helpful. So, all the lawyers that have helped me have been very generous with their time and have taught me quite a lot.

KW: That’s great. Is there any lawyer in particular . . . who has helped you in preparing for your roles, or have you just sort of talked with a different lawyer each time?

RM: I’ve talked with different lawyers each time.

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KW: That is interesting to know that you dealt directly with the legal community.

RM: Very much so, yes. I actually thought with the amount of lawyers I played, I was going to get some kind of degree or something. Is that possible?

KW: [Laughter] You should, you definitely should!

RM: I should!

IMPORTANT SOCIAL CONTEXT OF DISCLOSURE

RM: Well, I had done The Paper with Ron Howard before, where I played a reporter. But it was my first really large role, and I loved the subject matter because, at the time, it was a big hoo ha that sexual harassment had not been addressed in film. And then that it should be addressed with the man that is a victim caused an interesting stir. But, just that the topic was so – everyone on the set was so impassioned by this topic. It was also a time, when, you know, computers and how they were used in offices, and the mixture of a computer and send[ing] messages in code. It was very exciting. The whole concept of the sexual harassment; and, I think some people were like, “Oh I didn’t even realize man could be sexually harassed, even if he is the boss.” I think it addressed lots of elements that were surprising . . . .

SERVICE ON A REAL-LIFE JURY

RM: . . . I was on a jury . . . [I]t was the first time I really understood, or got an inkling, like I said, about how specific the law is to . . . that it was frustrating.

KW: That’s interesting. I’m curious, on what kind of jury did you serve?

RM: It was a mother who had killed her four year old daughter.

KW: Oh, wow, that’s a tough one to sit through.

RM: Oh, my god, I begged. You know, it was funny because the judge, it was in Los Angeles, and the judge recognized me from wherever. He sort of made fun, like is this the way you imagined it when you do your film or television? I was like, “No, no, no, it’s not!” I didn’t want to do that case, but just in that case, and I guess because it was real life, so the stakes were very different. How we couldn’t get what we wanted for the punishment for the mother to be. So, because of what seemed like minutia, but anyway, I know, it’s no. But that, I found very difficult and frustrating.

KW: . . . [W]hen did that happen in your professional career?

RM: It happened about seven years ago. When I was there, Pat Boone was also serving on a jury.

KW: Really?

RM: Yes, He was in court outside having lunch at the public lunch table. Which was pretty funny, I thought.

ADVICE TO LITIGATORS – “LESS IS MORE”

KW: Any legal roles you have played since your jury duty experience that the experience on the jury has shaped? If so, how?

RM: [T]he one thing is less is more. That’s the one thing I take away from my jury experience and also talking to lawyers about what a witness is to or not to say.

KW: . . . What exactly do you mean there? That sounds like good advice for practicing attorneys.

RM: I just meant that it’s, instead of going on, just answer the question, without leaving room for any interpretation of the answer. No interpretation, just the answer. Simple, “Yes,” “No.” You know, I think it’s human nature to go, “No, but I saw this,” and not realizing you’ve opened up another topic that you weren’t aware that you did. Now we go down another rabbit hole. Does that make sense?

KW: Exactly. And you’ve touched on probably one of our frustrations encountered in the practice of law – getting witnesses to understand that; to simply answer the question.

RM: Yes, I think it’s a thing you think you’re talking to your parents or the principal and the more you talk, the more they are going to understand your dilemma without understanding the more you talk the more you are setting up a dilemma.

HER FAVORITE ROLE

KW: . . . You’ve played, some major characters in some huge television shows and other movies. You’ve been in “Boston Legal.” You’ve been in “Law & Order.” You’ve been in “The Sopranos.” You’ve been in “ER” and recently. You played in the hit series “Nip/Tuck” and played a huge role in that. Which one of your roles that you played in the past has been your favorite role and why?

RM: That’s such an interesting question. I think because. . . Each one has their own uniqueness that I will remember. But definitely, Disclosure, because it was an eye-opener into a whole other world of film. I learned a lot about film, which I had not known or been introduced to. But Liz on “Nip/Tuck” was being an anesthesiologist and learning all those things, a little like people generous to teach me was. That’s what it is. It’s just so fascinating to be able to enter into all these worlds and just learn just a little bit of something. So I have to say, Liz on “Nip/Tuck.” I’d have to say on “Profiler,” my character was a forensic pathologist. And, I loved that. It was fascinating; pathology and crime, and honoring the dead. So many of them. Yet, there are roles that I do that have been plays that are comedies that I enjoy. So, it’s hard to pinpoint because I could go through my resume and go “Oh, no, I love that one, too.” I’ve just forgotten what I did. So, for now, those ones pop out. Oh, and I loved the character in Nick of Time. She was fantastic. So, yes. It’s hard to say.

Lessons Learned in Small Claims Court – Where Real Lawyers are Made

We here at Abnormal Use handle a variety of cases, big and small. While it may be the “bet the company” cases that grab the headlines, we have found that small claims court litigation creates the most memorable experiences. With no discovery, no court is less predictable. As you might recall, we have previously offered some helpful observations during our tireless days in the world of small claims. Always at your service, we would like to share a few more of those maxims with you.

1. Check your motion practice at the door. No explanation needed.

2. When the court begins explaining legal principles to a pro se litigant, just go with the flow. If the court addresses the litigant directly, things are going in your favor. Don’t mess it up.

3. Don’t make light of the experience. While some may argue that the appellate level is where “real” lawyering takes place, those people clearly have never stepped foot in a small claims court. The informality of the process can certainly be challenging, but in no other court can a lawyer learn to think on his or her feet in quite such a fashion. Often times, we get so caught up in the rigid rules of litigation that we lose sight of those skills that drove us into the legal field in the first place – creativity, logical thinking, analytics, public speaking. In small claims court, those core skills are your best friend.

Regardless of your number of years of practice, cherish each of your experience in small claims court. At the end of your career, you will find that those experiences are the ones that developed your skills as a lawyer. And, gave you the stories you will remember.

Worker Injury Reporting Requirements Revised by OSHA

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The Occupational Safety and Health Administration (“OSHA”) has recently issued several rule changes, including the reporting requirements for workplace injuries.  The previous regulation required the employer to notify OSHA “[w]ithin eight (8) hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.” 29 C.F.R. § 1904.39(a). Effective January 1, 2015, employers are required “to report all work-related in-patient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours of the event.” See Occupational Injury and Illness Recording and Reporting Requirements—NAICS Update and Reporting Revisions, 79 FR 56130-01.

The rule revision comes on the heels of the National Census of Fatal Occupational Injuries in 2013 (Preliminary Results) issued by the U.S. Department of Labor, Bureau of Labor Statistics, on September 11, 2014.  The census found that while fatal work injuries were down from 4,628 in 2012, there were still 4,405 fatal work injuries in 2013. Following the census results, the Secretary of Labor, Thomas E. Perez, issued a statement expressing disappointment with the number of fatal work injuries. “We can and must do better. Job gains in oil and gas and construction have come with more fatalities, and that is unacceptable,” said Perez.

Other rule changes for employers to be aware of include:

All employers covered by OSHA, even those exempt from maintaining injury and illness records, are required to comply with the new OSHA severe injury and illness reporting requirements.

OSHA is developing an web-based option for employers to report incidents electronically in addition to the phone reporting options.

Based on the census, the list of industries exempted from the requirement to routinely keep injury and illness records has been updated. The previous list of exempt industries was based on the old Standard Industrial Classification system and the new rule uses the North American Industry Classification System to classify establishments by industry. (Note: Any employer with 10 or fewer employees, regardless of their industry classification, is exempt from the record keeping rule.)

For readers unfamiliar with OSHA, OSHA provides a number of helpful publications, including an “All About OSHA” brochure located here.

(Hat Tip: Claims Journal).

Friday Links

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So, Superman says, “Robots of the jury, you cannot condemn Luthor for a crime against your world. Despite his evil past, he is innocent! And I will prove it with the next witness!” And then Luthor thinks to himself, “Superman must be mad to defend me! All the evidence proves I’m guilty!” So, that’s the dialogue on the cover of Action Comics #292, published way, way back in 1962. Now, perhaps things are different with robot juries on other planets, but considering his history on Earth, why is Supes volunteering to meet a burden of proof here? Doesn’t the robot society value the presumption of innocence? What gives? And by the way, who is Superman’s next witness? Surely, it’s not Luthor himself?

Apparently, according to this tweet, someone at the Conference of Government Mining Attorneys this week dissed the movie Armageddon!

If you’re a reader of this site, you may know that we maintain a Facebook page for this blog. You can find that here. Guess what? We here at Gallivan, White, & Boyd, P.A. have now also established a Facebook account for the firm more generally. You can access that you Facebook page here. We hope you’ll check it out.

Our favorite legal tweet of late:

Fixodent Lawsuit Has No Teeth: Eleventh Circuit Court Affirms Dismissal On Daubert Grounds

On a roll recently, the Eleventh Circuit Court of Appeals has upheld the dismissal of a lawsuit filed against Proctor and Gamble brought by a woman claiming that she suffered from a neurological condition caused by Fixodent, a denture adhesive. The lawsuit was dismissed on the ground that Plaintiff could not prove causation because her experts were not reliable under Daubert

One of the main components of Fixodent is zinc.  Plaintiff alleged that the zinc blocked her body’s ability to use copper, leading to a neurological condition known as copper-deficiency myelopathy.  According to Plaintiff, she started to develop symptoms after using up to four tubes of Fixodent per week for eight years.

Plaintiff sought to prove causation primarily through four expert witnesses (all physicians), who would have testified generally whether Fixodent could cause copper-deficiency myelopathy. However, the trial court refused to allow such testimony, finding that Plaintiff’s experts did not use reliable methodologies because they failed to show any scientific evidence as to how much Fixodent must be used, and for how long it must be used, to cause a purported copper deficiency.  Moreover, the experts in question failed to show how long that copper deficiency condition must last in order to place someone at risk for developing copper-deficiency myelopathy.

The Eleventh Circuit Court of Appeals agreed with the district court’s decision to dismiss the case at the summary judgment stage.

The case is Chapman v. Procter & Gamble Distributing, LLC, — F.3d —- (11th Cir. September 11, 2014).

Seventh Circuit Finds Statute Of Repose Bars Products Action Involving Muzzleloader Rifle Purchased In 1994

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “Seventh Circuit Finds Statute Of Repose Bars Products Action Involving Muzzleloader Rifle Purchased In 1994,” was published by DRI’s “Strictly Speaking” products liability newsletter.

Here’s the first two paragraphs:

Rejecting a Plaintiff’s negligence and strict liability claims in a case involving a muzzleloader rifle, the Seventh Circuit recently affirmed an Indiana federal district court’s grant of summary judgment on statute of repose grounds. Hartman v. EBSCO Indus., Inc., — F.3d —-, No. 13–3398, 2014 WL 3360799 (7th Cir. July 10, 2014). In so doing, the Seventh Circuit analyzed the two exceptions to Indiana’s ten year statute of repose and found that neither allowed the Plaintiff to bring claims involving a 2008 accident involving a LK–93 Wolverine muzzleloader first purchased in 1994.

For fourteen years, the Plaintiff had used his muzzleloader rifle (the somewhat complicated inner workings of which the Seventh Circuit explained in detail). In fact, he estimated he had fired it between 500 and 600 times prior to his November 2008 accident. His father had purchased and given to him the original rifle in 1994, but in 2008, the Plaintiff purchased a Knight 209 Primer Extreme Conversion Kit, an accessory designed to “deliver a hotter spark and thereby ignite Pyrodex pellets more reliably.” Plaintiff installed the kit himself.

To read the rest of the piece, please click here.

Up In Smoke: Eleventh Circuit Affirms Dismissal of Smoking Cases

Big Tobacco scored a big victory when the Eleventh Circuit upheld the dismissal of nearly 750 Plaintiffs’ cases because of defects in the complaint.  See 4432 Individual Tobacco Plaintiffs v. Various Tobacco Companies, Liggett Group, LLC, & Vector Group, Ltd (11th Cir. September 10, 2014). The defect stemmed from the fact that the law firm handling the case filed personal injury complaints on behalf of deceased smokers and deceased family members.  Of course, a deceased person cannot a maintain claim for personal injury.

The dismissed cases were brought in 2008 as part of 4,432 claims filed by a Jacksonville law firm.  The cases were filed individually after the Florida Supreme Court disbanded a state class action lawsuit and gave the plaintiffs one year to file individually.  The firm apparently did not have the time or the resources necessary to contact all of the class members but filed suits on their behalf to meet the deadline. In 2012, it was discovered that 588 of the smokers who had suits filed in their name were now deceased and 160 loss of consortium claims had been filed on behalf of dead family members.   The district court dismissed the cases and denied  leave to amend.  The court’s rationale for denying leave to amend was that the problems would have been avoided if the claims had been properly vetted in the first place.

The Eleventh Circuit upheld the decision not allow leave to amend the complaint.  The court refused to take mercy on the Plaintiff’s firm, who on appeal argued that the mistakes were the result of “unique logistical difficulties” involved in handling so many cases.   In reaching its conclusion, the court noted:

The solution to managing  these types of mass actions is surely not that the standard of care diminishes as the  number of cases grows. If we were to hold that plaintiffs’ counsel are entitled to substitution solely on account of the large volume of cases they filed, we would  invite the same result in every mass tort action.

Since the deadline to file is long gone, these cases are up in smoke.

Iowa Federal Court Issues Sanctions For Unnecessary Deposition Objections

One of the most difficult deposition and trial skills to learn as a young lawyer is the art of the objection. While some may posit the old maxim, “You’ll know it when you hear it,” in practice, knowing the proper time to object to opposing counsel’s question is much more difficult. Over time, every lawyer develops his or her own method of practice. Some lawyers can sit all day through a tiresome deposition without the hint of an objection. Others choose to object, usually to the form of the question, every time opposing counsel opens his or her mouth. Neither approach is sound as not every question is perfect or objectionable. Nonetheless, many lawyers seem to use the objection as a means to prove one’s worth.

Recently, a lawyer appearing before U.S. District Court Judge Mark Bennett in the Northern District of Iowa learned the perils of abusing the objection. In fact, the lawyer in question was sanctioned in a most unusual way. During trial in the matter of Security National Bank v. Abbott Laboratories, No. 11-cv-4017 (N.D. Iowa 2014), a product liability case arising out of an allegedly defective infant formula, Judge Bennett issued a sua sponte order for defense counsel to show cause as to why she should not be sanctioned for the “serious pattern of obstructive conduct” she displayed in defending depositions. Specifically, Judge Bennett questioned the lawyer’s use of hundreds of form objections with no apparent basis. Following trial, a supplemental order was entered, directing counsel to address three issues: 1) the excessive use of “form” objections; 2) numerous attempts to coach witnesses via objection; and 3) ubiquitous interruptions and attempts to clarify questions posed by opposing counsel. In reviewing the depositions at issue, Judge Bennett found that the lawyer’s form objections – often with no stated basis – were found on 50 percent of the transcript pages. While he did not favor form objections with no stated basis, it was the result of the objections – witness coaching and excessive interruption – that drew Judge Bennett’s ire. The objections were said to be used to induce clarification from the deponent, and in many instances, actually coached the witness to give a particular, substantive answer. The attorney objected so many times that her name was found, on average, three times per page of deposition transcript. Based on the record, Judge Bennett found that:

By interposing many unnecessary comments, clarifications, and objections, Counsel impeded, delayed, and frustrated the fair examination of witnesses during the depositions Counsel defended.

Rather than fine the lawyer, Judge Nelson ordered her to create and write a training video explaining the basis of the sanctions and demonstrating how to comply with the rules during depositions in state and federal court. Now, there’s a video sure to be a must-see for all young lawyers. This opinion shouldn’t scare all who may appear in an Iowa federal court in the near future. Judge Bennett was quick to note that a handful of improper objections or comments wouldn’t lead to this type of judicial intervention. However, lawyers should think twice before talking more than their clients at their depositions. If an objection really needs to be made, then you will in fact “know it when you hear it.” Otherwise, the objection is too often just filler.