Wednesday, August 28, 2013

New case: Prejudice is Presumed When ESI Destruction is Willful

An interesting read from last week: Sekisui America Corp. was sanctioned for deleting the emails of the former president of a merger target whom it is suing for breach of contract. One of the disputes at issue is whether sanctions were warranted against the plaintiff company for deleting a defendant’s email folder. The fact that the email folder was destroyed was undisputed, but plaintiff claimed it was an innocent mistake to free up space on the server. Defendants sought sanctions.

Here's the case: 

In the Court’s order regarding an adverse inference instruction, Judge Scheindlin found as a matter of law that the destruction took place after the duty arose, but left as a question of fact for the jury to decide whether to presume the evidence was favorable to the Harts

Wednesday, August 21, 2013

New England Compounding Center Litigation Update: Mediation Order Entered 8/15/13

I serve as counsel on the Plaintiffs' Steering Committee in this litigation, currently based in Boston, Massachusetts before Judge Saylor. After submissions, the Court entered an Order on August 15, 2013, which is here:


Friday, August 16, 2013

August News Retinopathy of Prematurity

Lawyer Richard Shapiro investigates cases involving this tragic medical condition. 

During development, blood vessels grow from the central part of the retina outwards. This process is completed a few weeks before the normal time of delivery. However, in premature babies it is incomplete. If blood vessels grow normally, ROP does not occur. If the vessels grow and branch abnormally the baby develops ROP. That may lead to bleeding inside the eye. When the blood gets resolved, it may give rise to band like membranes which may pull up the retina, causing detachment of retina and eventually blindness before 6 months.

Normally, maturation of the retina proceeds in-utero, and at term, the medial portion of the retina is fully vascularized, while the lateral portion is only incompletely vascularized. If a pre-term infant is treated with oxygen, the oxygen may cause constriction of the retinal blood vessels. This vasoconstriction can lead to a lack of oxygen (ischemia) in the retina. This leads to the production of molecules that cause the growth of new blood vessels (VEGF). These blood vessels are abnormal, and negatively affect the normal development of retinal vasculature. Thus, retinopathy of prematurity occurs when the normal development of retinal blood vessels is prevented.

The key disease element in ROP is fibrovascular proliferation. This is growth of abnormal new vessels that may regress, but frequently progress. Associated with the growth of these new vessels is fibrous tissue (scar tissue) that may contract to cause retinal detachment. Multiple factors can determine whether the disease progresses, including overall health, birth weight, the stage of ROP at initial diagnosis, and the presence or absence of "plus disease". Supplemental oxygen exposure, while a risk factor, is not the main risk factor for development of this disease

Read more about this condition at

Saturday, August 10, 2013

New Yorkers Warned about Dietary Supplements Healthy Life Chemistry By Purity First B-50, Multi-Minerals

English: Logo of the U.S. Food and Drug Admini...
English: Logo of the U.S. Food and Drug Administration (2006) (Photo credit: Wikipedia)
 The New York State Department of Health on Wednesday announced that consumers should not use or purchase Healthy Life Chemistry By Purity First B-50, Multi-Minerals, or Vitamin C marketed as dietary supplements, due to the possible presence of potentially harmful anabolic steroids.
The New York State Department of Health on Wednesday announced that consumers should not use or purchase Healthy Life Chemistry By Purity First B-50, Multi-Minerals, or Vitamin C marketed as dietary supplements, due to the possible presence of potentially harmful anabolic steroids.
The U.S. Food and Drug Administration and DOH have received reports of 29 adverse incidents associated with the use of Healthy Life Chemistry By Purity First B-50. Some of these patients were reported to have also taken Healthy Life Chemistry By Purity First Multi-Mineral and/or Vitamin C. These reports include fatigue, muscle cramping, and muscle pain, as well as abnormal laboratory findings for liver and thyroid function, and cholesterol levels. In addition, according to the FDA, females who used these products reported unusual hair growth and missed menstruation, and males who used the products reported impotence and findings of low testosterone.
The Department of Health issued advisories to the health provider community and is working with providers to help characterize symptoms and make recommendations for management of the health effects of use of the product. DOH is providing its support and cooperation, as needed, to assist the FDA's investigation into this matter. 
Preliminary testing by the FDA of the Healthy Life Chemistry By Purity First B-50 product demonstrated the presence of anabolic steroids including methasterone and dimethazine. These ingredients are not listed on the label and should not be in a dietary supplement, the FDA reported. According to Purity First Health Products, Inc, the Multi-Mineral and Vitamin C capsules appear to contain dimethyltestosterone.

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Litigating When You Don't Do Your Homework

Today's blog entry is courtesy of a recent report that a person in California sued New England Compounding Center/Pharmacy, alleging injuries from a contaminated product. That company is known across the USA as NECC.

Problems? Well, the first one is this - The lawyers for the Plaintiff in that case named a bankrupt company. Those same lawyers served the Complaint not on NECC's agent, but on a Plaintiff's law firm in Nashville that represents injured consumers in lawsuits against NECC.

Problem number two - The very same lawyers who served the wrong company then moved for Default.

Problem number three: NECC is bankrupt, and had there been even a basic search done, any person would have known that. In the Removal papers, there is this statement by counsel:

Even if Plaintiff had attempted to serve an appropriate agent for NECC, service of process could not be completed as a result of the bankruptcy stay, and therefore NECC believes that this Notice has been filed within the time period set forth in Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules") 9027(a)(3). 

The State Court Action was purportedly commenced after the Bankruptcy  Proceeding, and no order for relief has been entered in the Bankruptcy Proceeding, nor has any order been entered terminating the automatic stay imposed under 11 U.S.C. § 362(a). 

The Plaintiffs' lawyers in that case are about to learn some potentially painful lessons. As noted in the Removal papers:  NECC reserves all rights including, but not limited to, any and all defenses available to it for violations of the automatic stay pursuant to 11 U.S.C. §362(a).

This is a cautionary tale about sloppiness and the failure to conduct due diligence on a national litigation before filing a case. Had counsel taken a few moments to review pleadings, they would have seen that there are multiple defendants in other cases, and those should have been named.

A related article is here:

Here are the removal papers:

Stay tuned.

8/8/13 Alert: Specialty Compounding Sterile Products, Texas : FDA Alert - Bacterial Infections

More bad news in the compounding industry. Our office is investigating the industry, and we currently serve as one of seven national counsel for consumers in the NECC litigation:

Bacterial infections have been potentially associated with contaminated calcium gluconate infusions produced by Specialty Compounding, Cedar Park, TX.

FDA has received reports of 15 adverse events experienced by patients in two hospitals. The 15 patients received an infusion of calcium gluconate 2 grams in Sodium Chloride 0.9% for Injection, which was supplied by Specialty Compounding. The patients then developed bacterial bloodstream infections caused by Rhodococcus equi. These infections are thought to be related to the infusions. Cultures from an intact sample of calcium gluconate compounded by Specialty Compounding show growth of bacteria that are consistent with Rhodococcus species.

BACKGROUND: Calcium gluconate by infusion can be used to treat conditions associated with low calcium levels in certain circumstances.

RECOMMENDATION: FDA is alerting health care professionals not to use any sterile products supplied by Specialty Compounding, Cedar Park, TX.
Healthcare professionals and patients are encouraged to report adverse events or side effects related to the use of these products to the FDA's MedWatch Safety Information and Adverse Event Reporting Program.

Or use the contact form. 

Tuesday, August 06, 2013

The BP Settlement: How the Lawyers See Their Role

From the NYT:

To the Editor:

Re “Lawyers’ Business Model,” by Joe Nocera (column, July 30)

When corporations act irresponsibly by producing unsafe products, polluting our environment or swindling their employees and shareholders, often the only place for Americans to hold them accountable is in our courts. The civil justice system provides a key incentive for corporations to prioritize safety from the start.

In yet another column attacking trial lawyers in order to defend BP, Joe Nocera disregards the important role that the civil justice system plays in our society.

As the president of the American Association for Justice, I know firsthand how hard our members are working to make sure that Americans can get justice in the courtroom, even when it means taking on the most powerful interests. I also know from my own clients how essential it is to have a strong civil justice system that enables Americans to hold wrongdoers accountable.

When businesses in the Gulf sought to hold BP accountable for the devastating effects of the oil spill, BP’s team of corporate lawyers co-authored, agreed to and sought court approval of the very settlement that Mr. Nocera finds offensive. BP may have underestimated the financial damage it caused, but trial lawyers are not to blame for that. That blame still remains with BP.

Instead of pitying BP and corporations like it, let’s focus on fixing the root of the problem: the dangerous products, negligence and corporate wrongdoings that harm Americans.

Washington, July 31, 2013

Saturday, August 03, 2013

Salon, Lazy Writing, and New Orleans

For those who read this blog, you see that I tend to write about non law subjects like my love of New Orleans, dogs, and football. Today this post is about New Orleans, and how some lazy writer throws out the "fate" of that city in a way that to me suggests he's an idiot, and also suggests how low the bar now is when it comes to supposed journalism.

The title of the  article is:  

Why the right hates Detroit 

How the fates of two great cities, Detroit and New Orleans, symbolize what's gone wrong with America.

What brings up the bile for me is this comment in the Salon writer's piece: "Is it pure coincidence that these two landmark cities, known around the world as fountainheads of the most vibrant and creative aspects of American culture, have become our two direst examples of urban failure and collapse?"

Ah yes. The rise of the 'journalists' who never leave the comfort of their own desks before spouting off at the keyboard. Because had this write done so, he would KNOW -- just from a two day trip -- that while the post Katrina recovery in the past 7-8 years has had its share of tragedy, despair, and frustration, New Orleans today has more than 1100 new restaurants than its' Pre-Katrina calamity. Or that neighborhoods have been rebuilt better, smarter, and safer. Or that musicians have their own new homes. Or that summer festivals like Satchmo fill the streets, and that White Linen night has folks voluntarily walking in the August sun and heat. Or that the Essence Music Festival - held in New Orleans in July for crying out loud - is one of the most important "be seen" events in the music industry. 

Had this lazy piece of crap writer taken a trip to New Orleans, he'd know that Mayor Mitch has done many things in advance of a Super Bowl. Improvement to sidewalks, streets, and trollies. He have known all that. Way back in the 20th century writers used to do that type of research.  Maybe he did take a trip, and forgot to write about it in his piece. But  he didn't visit the city, because he had done so he would have found information first hand not found on page one of Google or on  

Is a  picture worth a thousand words? You bet. Detroit's shot with the piece was this:

Detroit - this year    

Now, a simple phone call or email would have yielded information on New Orleans that would have shown that - horrors! While it takes time to rebuild, it's not a generational purgatory of restoration. Here's a photograph that captures the polar opposite of what NOLA and the Motor City have become:

New Orleans, this August

What the writer completely misses is that post calamity there's this quirkly little thing called the human spirit that seems to take over. Not government. Hell, government's lesson in Katrina was made clear - you are on your own. It's stay out of the way and let the people do it. It's that people make the city - people opening bars and hotel like the Saint. People opening pop up kitchens and restaurants. Lawyers groups like AAJ deciding to come to New Orleans for a meeting,  where 2,000+ people will party and have a good time. It's the Edge, Brad Pitt and others building homes for residents. 

The next time some writer decides to compare New Orleans to any city in America, some 'lawyerly" advice before doing so: Walk the land first.   Katrina will always be a part of the history of New Orleans, as opposed to the present.  I know this sounds crazy, but leave the comfort of your office of loft. Endure the bugs.   

The real shame of the article? It's not the message that right is to blame - whatever the "right" political boogey man might look like - or that the right that hates a city. It's what a city is or might be able to do with itself after it hits rock bottom. I don't mean financial rock bottom, I mean hundeds of lives lost, elderly drowning in nursing homes, animal carcasses floating in the street, whole neighborhoods obliterated rock bottom. 

Come see me during Mardi Gras, Salon writer.  New Orleans made it back. Could Detroit?