25 Şubat 2013 Pazartesi
Factual Issue Remains In Establishment Clause Challenge To School Board's Outsourcing
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In Kucera v. Jefferson County Board of School Commissioners, (ED TN, Feb. 21, 2013), a Tennessee federal district court allowed two plaintiffs-- a former teacher and the former principal in an alternative school-- to proceed with their claims that a Tennessee school district violated the Establishment Clause when it closed the alternative school in which they were employed and contracted with Kingswood Academy, a Christian school, to provide alternative school services. In denying defendants' motion for summary judgment, the court said that there remains an issue of fact as to whether or not the alternative day program offered by Kingswood is religious in nature in the same way its residential program is. (See prior related posting.)
German Prosecutor Drops Circumcision Prosecution of Rabbi
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Applying Germany's new law enacted in December to confirm the legality of religious circumcisions performed with parental consent by specially trained members of the religious community, a court in the German city of Hof has dismissed charges that had been filed last year against a rabbi. According to the European Jewish Congress, the criminal charges were dropped last Thursday by the prosecutor who said that Rabbi David Goldberg has satisfied all the requirements of the new law.
In Australia, Parliament Debates Scope of Religious Exemptions In Proposed Anti-Discrimination Law Revisions
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The Australian reported last week on the controversy over the scope of exemptions for religious organizations in proposed Australian civil rights legislation. Labor proposed a bill-- the Human Rights and Anti-Discrimination Bill 2012-- to consolidate Australia's five existing anti-discrimination laws. Under the proposal, exemptions for religious organizations were to be largely retained, except for government-funded providers of care for the elderly where there is concern about discrimination against same-sex couples seeking to enter care facilities. However the Senate Legal and Constitutional Affairs Legislation Committee in a report released Feb 21 (full text) has recommended much narrower religious exemptions in the new law. (Full text of recommendations). Opposition members of the Senate in turn, concerned about protecting Church schools, called on the Attorney General to retain current exemptions in the new law.
Scottish Cardinal Resigns Amid Charges Of Inappropriate Sexual Behavior
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Vatican Radio this morning announced that Pope Benedict XVI has accepted the resignation of Scotland's Cardinal Kieth O'Brien. The resignation follows a report Saturday in The Observer that 3 priests and a former priest have charged O'Brien with "inappropriate behavior" involving inappropriate contacts, beginning in the 1980's. According to The Observer:
The four, from the diocese of St Andrews and Edinburgh, have complained to nuncio Antonio Mennini, the Vatican's ambassador to Britain, and demanded O'Brien's immediate resignation. A spokesman for the cardinal said that the claims were contested.
O'Brien, who is due to retire next month, has been an outspoken opponent of gay rights, condemning homosexuality as immoral, opposing gay adoption, and most recently arguing that same-sex marriages would be "harmful to the physical, mental and spiritual well-being of those involved". Last year he was named "bigot of the year" by the gay rights charity Stonewall.According to the New York Times, a statement issued by the Diocese of Edinburgh on O'Brien's behalf yesterday said: "A number of allegations of inappropriate behavior have been made against the cardinal The cardinal has sought legal advice, and it would be inappropriate to comment at this time. There will be further statements in due course."
President of the Few Exaggerates Impact of Sequestration
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Now I know that for many folk, the sequestration is either serious or not. Although I do accept the ramifications of the process, it is hard to get real involved in make believe political nuance. But as such, It is equally as hard not to weigh in on the inside the beltway kabuki theater we surmise as Washington politics. First, what get me is the big deal folk make out of this entire thing per an economic issue. If anything it is an issue of national security first and foremost (42 percent of cuts will come from defense). But I suspect this is what President Obama anticipated when he first proposed sequestration for whatever reason in 2011 (which in itself is another essay). I say this because I think he really believed that Congress would bow down to protect their cash cow “defense spending.” But they have since then taken his player card.
Truth be told from a federal agency perspective, it only $85 Billion (north of $40 billion this year), that they have to cut. I think what is missed mostly in all of this is that our issue really isn’t related to debt or the deficit, but rather credit and borrowing. Yes we spend too much no question, but ours is a credit problem – we borrow too much which makes economics ignore what is essential – that one can address the debt and deficit and encourage economic growth by leasing in on cutting wasted and duplicated spending.
Again it is just $85 billion. AIG got two times as much when the government bailed them out, yet we can find money to bailout Wall Street but not cut from what we already spend? I find that hard to believe because the average individual, family and small business owner, if had to, could cut less than three cents from each dollar earned without going bankrupt or homeless. I know less than 3 percent is possible from history alone. If FDR could cut the federal budget by almost 40 percent at the start of WW II in one year, surely we can locate 3 pennies of each government dollar currently spent.
Maybe this is why the theater. Three cents on the dollar won’t hurt if done correctly (end waste and duplication.) But if it hurt anybody it will be us, the poor folks in America who depend on services like head start and similar provisions. President Obama knew he was taking a risk, but instead of the wealthy he pretends he wants to tax, he put folk on the hook who live pay check to pay check, struggling to survive in poverty and who depend on head start on the hook as bait for house republicans. And they didn’t take it because they only grab on behalf of rich lobbyist (as well as democrats). Now we are back to Washington at its best, seeing that pointing fingers is more important to the administration and the congress than moving pencils and using erasers. The result is all outside in real America being stuck in the weeds on this matter.
In four days we will have Armageddon as the president describes it. Although all parties agreed to it, why is it Armageddon now and it wasn’t then? America outside the beltway isn’t growing fast like Washington, DC and Wall Street. Since looking at what has happened from 2009 to 2011, more than twenty major corporations have paid no income taxes. Including the likes of General Electric, Boeing, Verizon and Amazon [Amazon made billions in sales in 2011, while paying nothing in corporate taxes]. The reality is that since Obama has taken office, corporate taxes in the U.S., at an all-time low in which we see the most profitable companies paying nothing at all. Yet instead of fighting for the payroll holiday to continue President Obama did not fight for it, for these people were on the hook as bait. In 2011, Facebook made billions and paid not taxes yet was given a rebate of more than $400 million dollars the same year.
The fact is all of the above demonstrates that both the present administration and the members on the hill have only corporate interest at hand. Not only is it government for the few, it is also President of the few. Drake almost got it right, but I would say “we started from the bottom and we still here.”
Now I know that for many folk, the sequestration is either serious or not. Although I do accept the ramifications of the process, it is hard to get real involved in make believe political nuance. But as such, It is equally as hard not to weigh in on the inside the beltway kabuki theater we surmise as Washington politics. First, what get me is the big deal folk make out of this entire thing per an economic issue. If anything it is an issue of national security first and foremost (42 percent of cuts will come from defense). But I suspect this is what President Obama anticipated when he first proposed sequestration for whatever reason in 2011 (which in itself is another essay). I say this because I think he really believed that Congress would bow down to protect their cash cow “defense spending.” But they have since then taken his player card.Truth be told from a federal agency perspective, it only $85 Billion (north of $40 billion this year), that they have to cut. I think what is missed mostly in all of this is that our issue really isn’t related to debt or the deficit, but rather credit and borrowing. Yes we spend too much no question, but ours is a credit problem – we borrow too much which makes economics ignore what is essential – that one can address the debt and deficit and encourage economic growth by leasing in on cutting wasted and duplicated spending.
Again it is just $85 billion. AIG got two times as much when the government bailed them out, yet we can find money to bailout Wall Street but not cut from what we already spend? I find that hard to believe because the average individual, family and small business owner, if had to, could cut less than three cents from each dollar earned without going bankrupt or homeless. I know less than 3 percent is possible from history alone. If FDR could cut the federal budget by almost 40 percent at the start of WW II in one year, surely we can locate 3 pennies of each government dollar currently spent.
Maybe this is why the theater. Three cents on the dollar won’t hurt if done correctly (end waste and duplication.) But if it hurt anybody it will be us, the poor folks in America who depend on services like head start and similar provisions. President Obama knew he was taking a risk, but instead of the wealthy he pretends he wants to tax, he put folk on the hook who live pay check to pay check, struggling to survive in poverty and who depend on head start on the hook as bait for house republicans. And they didn’t take it because they only grab on behalf of rich lobbyist (as well as democrats). Now we are back to Washington at its best, seeing that pointing fingers is more important to the administration and the congress than moving pencils and using erasers. The result is all outside in real America being stuck in the weeds on this matter.
In four days we will have Armageddon as the president describes it. Although all parties agreed to it, why is it Armageddon now and it wasn’t then? America outside the beltway isn’t growing fast like Washington, DC and Wall Street. Since looking at what has happened from 2009 to 2011, more than twenty major corporations have paid no income taxes. Including the likes of General Electric, Boeing, Verizon and Amazon [Amazon made billions in sales in 2011, while paying nothing in corporate taxes]. The reality is that since Obama has taken office, corporate taxes in the U.S., at an all-time low in which we see the most profitable companies paying nothing at all. Yet instead of fighting for the payroll holiday to continue President Obama did not fight for it, for these people were on the hook as bait. In 2011, Facebook made billions and paid not taxes yet was given a rebate of more than $400 million dollars the same year.
The fact is all of the above demonstrates that both the present administration and the members on the hill have only corporate interest at hand. Not only is it government for the few, it is also President of the few. Drake almost got it right, but I would say “we started from the bottom and we still here.”
24 Şubat 2013 Pazar
New AFJ resource tracks judicial vacancies without nominations
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In many parts of the country, vacant federal judgeships have languished without nominees for more than two years, according to a new resource from Alliance for Justice.
Much attention has been paid to what happens after someone is nominated to fill a vacancy – in particular the obstruction of nominees by Senate Republicans. But before a nomination ever reaches the Senate it goes through a complex, potentially lengthy process involving the White House and, with few exceptions, a state’s two United States Senators. At every step, a nomination can be delayed. In particular, this resource highlights the little-examined role that senators play in the pre-nomination process.
"This new report shines a spotlight on this often-neglected part of the process,” said AFJ President Nan Aron. “It illustrates the need for a renewed sense of urgency that should begin the moment a judgeship becomes vacant.”
Aron cited examples of unconscionable delay:
“Because of a dispute between senators from California and Idaho, a seat on the 9th Circuit has been vacantfor more than eight years,” Aron said. “A seat on the 7th Circuit has been vacant for nearly four years. This kind of systemic failure has to end. The American people deserve better.”
When it comes to seats on federal district courts, there have been delays of two years or more in sending a nominee to the Senate in five states:
“These data, including detailed maps, track the status of every federal court vacancy for which there is not yet a nominee, giving Americans the information they need to demand action,” Aron said.
>>ReadAFJ’s new resource
>>Judicial nomination timeline
How many judgeships are vacant in your state - without even a nominee? Use AFJ's new resource to find out:
In many parts of the country, vacant federal judgeships have languished without nominees for more than two years, according to a new resource from Alliance for Justice.Much attention has been paid to what happens after someone is nominated to fill a vacancy – in particular the obstruction of nominees by Senate Republicans. But before a nomination ever reaches the Senate it goes through a complex, potentially lengthy process involving the White House and, with few exceptions, a state’s two United States Senators. At every step, a nomination can be delayed. In particular, this resource highlights the little-examined role that senators play in the pre-nomination process.
"This new report shines a spotlight on this often-neglected part of the process,” said AFJ President Nan Aron. “It illustrates the need for a renewed sense of urgency that should begin the moment a judgeship becomes vacant.”
Aron cited examples of unconscionable delay:
“Because of a dispute between senators from California and Idaho, a seat on the 9th Circuit has been vacantfor more than eight years,” Aron said. “A seat on the 7th Circuit has been vacant for nearly four years. This kind of systemic failure has to end. The American people deserve better.”
When it comes to seats on federal district courts, there have been delays of two years or more in sending a nominee to the Senate in five states:
- Eastern District of North Carolina: 2,654 days
- Western District of Texas: 1,650 days
- District of Kansas: 1,163 days
- District of Arizona: 1,049 days
- District of Massachusetts: 889 days
“These data, including detailed maps, track the status of every federal court vacancy for which there is not yet a nominee, giving Americans the information they need to demand action,” Aron said.
>>ReadAFJ’s new resource
>>Judicial nomination timeline
AFJ calls for swift filling of vacancies on nation's second most important court
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The creation of yet another vacancy – the fourth – on what is widely-known as the nation’s second most important court is a stark reminder of the urgent need to fill vacancies on that court.
With Judge David Sentelle taking seniorstatus today, the D.C. Circuit now has more vacancies than any other circuitcourt of appeals. One of these seats has been vacant for more than sevenyears, another for more than four years. But the Senate has yet toconfirm President Obama’s two nominees.
In contrast, President George W. Bushnamed four judges to the D.C. Circuit, President Bill Clinton named three,President George H.W. Bush also named three and President Ronald Reagan namedeight.
“Only the U.S. Supreme Court itself hasmore of an impact on the lives of everyday Americans than the D.C. Circuit,”said AFJ President Nan Aron.
Because this court is so important ithas become a farm team for future Supreme Court justices. Four of the ninecurrent justices - Roberts, Ginsburg, Scalia and Thomas – served on the D.C.Circuit.
“Most D.C. Circuit cases will never bereviewed by the Supreme Court,” Aron said. “The D.C. Circuit often standsas the final arbiter of President Obama’s legislative legacy and decades ofpolicy achievements long supported by the American people. We callupon the Senate to quickly confirm the pending nominees for this court, and weurge President Obama to nominate strong judges who understand the role ofgovernment in protecting everyday Americans.”
The creation of yet another vacancy – the fourth – on what is widely-known as the nation’s second most important court is a stark reminder of the urgent need to fill vacancies on that court.
 |
| Judge David Sentelle |
In contrast, President George W. Bushnamed four judges to the D.C. Circuit, President Bill Clinton named three,President George H.W. Bush also named three and President Ronald Reagan namedeight.
“Only the U.S. Supreme Court itself hasmore of an impact on the lives of everyday Americans than the D.C. Circuit,”said AFJ President Nan Aron.
Because this court is so important ithas become a farm team for future Supreme Court justices. Four of the ninecurrent justices - Roberts, Ginsburg, Scalia and Thomas – served on the D.C.Circuit.
“Most D.C. Circuit cases will never bereviewed by the Supreme Court,” Aron said. “The D.C. Circuit often standsas the final arbiter of President Obama’s legislative legacy and decades ofpolicy achievements long supported by the American people. We callupon the Senate to quickly confirm the pending nominees for this court, and weurge President Obama to nominate strong judges who understand the role ofgovernment in protecting everyday Americans.”
Will cruise passengers be victimized again – by forced arbitration
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As they suffered in sweltering heat, walked through sewageand defecated in plastic bags, some of the passengers aboard the CarnivalCruise Lines ship Triumph probablywere thinking “At least when we finally get home we can sue the b-----ds.”
Well, they can try – andsome already have. But the U.S.Supreme Court has made it a lot harder than it should be.
It appears that Carnival is far better prepared to preventlawsuits than it was to contain the damage aboard the Triumph. In thefine print that comes with every ticket, there is a clause that bars mostlawsuits. Instead, passengers must gointo forced arbitration. In addition,when passengers buy a ticket for a Carnival Cruise they give up their right tobe part of a class-action suit – though again, onelaw firm is going to try anyway.
As we explained in aprevious post to this blog, and in our 2011 report, Arbitration Activism, this means thedeck is stacked against the passengers at every turn. And in keeping with its role as “The 1% Court” the Supreme Courtmajority has upheld forced arbitration, and the ban on class actions, in oneoutrageous case after another.
The Carnival Cruise fine print makes exceptions forindividual suits in cases of “personal injury, illness or death.” In one of the suits brought so far, apassenger cites severe dehydration and bruises suffered while on “aggressivefood lines.”
But passengers whose suffering extended only to enduringheat, stench, limited food and no toilets may be out of luck. As for the validity of any class action,presumably Carnival could appeal all the way to the Supreme Court – and we knowwhat that is likely to mean.
IT’S EVEN WORSE FORTHE CREW
There is another group that endured worse suffering than thepassengers. AsJosh Eidelson points out in Salon, even when nothing goes wrong, conditionson cruise ships can be hell for the crew. And there is almost nothing they can do about it.
Citing the work of Prof. Ross Klein, the author of ParadiseLost at Sea: Rethinking Cruise Vacations, Eidelson writes:
As they suffered in sweltering heat, walked through sewageand defecated in plastic bags, some of the passengers aboard the CarnivalCruise Lines ship Triumph probablywere thinking “At least when we finally get home we can sue the b-----ds.”
 |
| The Carnival Triumph in happier times (including working toilets) |
It appears that Carnival is far better prepared to preventlawsuits than it was to contain the damage aboard the Triumph. In thefine print that comes with every ticket, there is a clause that bars mostlawsuits. Instead, passengers must gointo forced arbitration. In addition,when passengers buy a ticket for a Carnival Cruise they give up their right tobe part of a class-action suit – though again, onelaw firm is going to try anyway.
As we explained in aprevious post to this blog, and in our 2011 report, Arbitration Activism, this means thedeck is stacked against the passengers at every turn. And in keeping with its role as “The 1% Court” the Supreme Courtmajority has upheld forced arbitration, and the ban on class actions, in oneoutrageous case after another.
The Carnival Cruise fine print makes exceptions forindividual suits in cases of “personal injury, illness or death.” In one of the suits brought so far, apassenger cites severe dehydration and bruises suffered while on “aggressivefood lines.”
But passengers whose suffering extended only to enduringheat, stench, limited food and no toilets may be out of luck. As for the validity of any class action,presumably Carnival could appeal all the way to the Supreme Court – and we knowwhat that is likely to mean.
IT’S EVEN WORSE FORTHE CREW
There is another group that endured worse suffering than thepassengers. AsJosh Eidelson points out in Salon, even when nothing goes wrong, conditionson cruise ships can be hell for the crew. And there is almost nothing they can do about it.
Citing the work of Prof. Ross Klein, the author of ParadiseLost at Sea: Rethinking Cruise Vacations, Eidelson writes:
Carnival is technically registered inPanama, a country whose laws Klein charges “have been changed to satisfyCarnival’s needs and interests. Because Carnival means a fair amount of moneyto their national treasury.” Effectively, for cruise workers, says Klein,“there aren’t any real labor regulations.” (He noted that one lawsuit that was brought against Carnival inthe U.S. ended with a settlement requiringfuture such disputes be pursued through an arbitration system, effectivelyrequiring potential worker plaintiffs to shell out tens of thousands of dollarsin transportation and legal fees.)[Emphasis added.]
Help protect the Voting Rights Act – and find out what happened during the arguments
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One week from today, the Supreme Court hears oral arguments in a case challenging a crucial provision of the Voting Rights Act of1965. That provision, known as Section 5, requires certain jurisdictions to obtain advance approval from the Justice Department or a federal court before they change voting rules or procedures.
The Voting Rights Act was, and remains, the keystone in the arch of civil rights protection for people of color. As our overview of the issues makes clear, that provision is needed now as much as ever.
FEB. 26: TWITTER TOWN HALL
On the day before the case is heard, join in a Twitter Town Hall about the Voting Rights Act.
FEB. 27: RALLY AT THE COURT
AFJ is part of a coalition working to protect the Voting Rights Act. Those efforts include a rally in front of the Supreme Court at 9:00 AM. AFJ President Nan Aron is among the scheduled speakers. Get the details here.
FEB. 27: ANALYSIS ON JUSTICE WATCH
Then, in the hours after the argument, check back here at Justice Watch for comprehensive analysis. Legal experts will be posting here about key issues raised by the case, including:
If the Supreme Court makes audio of the oral arguments available in time, we'll include relevant excerpts with the Blogposts.
One week from today, the Supreme Court hears oral arguments in a case challenging a crucial provision of the Voting Rights Act of1965. That provision, known as Section 5, requires certain jurisdictions to obtain advance approval from the Justice Department or a federal court before they change voting rules or procedures.
The Voting Rights Act was, and remains, the keystone in the arch of civil rights protection for people of color. As our overview of the issues makes clear, that provision is needed now as much as ever.FEB. 26: TWITTER TOWN HALL
On the day before the case is heard, join in a Twitter Town Hall about the Voting Rights Act.
FEB. 27: RALLY AT THE COURT
AFJ is part of a coalition working to protect the Voting Rights Act. Those efforts include a rally in front of the Supreme Court at 9:00 AM. AFJ President Nan Aron is among the scheduled speakers. Get the details here.
FEB. 27: ANALYSIS ON JUSTICE WATCH
Then, in the hours after the argument, check back here at Justice Watch for comprehensive analysis. Legal experts will be posting here about key issues raised by the case, including:
- Whether the jurisdictions covered by Section 5 still need to be covered.
- Whether the geographic reach of the statute is justified. Does it include too many places? Does it include too few places?
- What has happened since the Court last took up the Voting Rights Act in 2009?
- What deference should the Court give to congressional findings of fact?
If the Supreme Court makes audio of the oral arguments available in time, we'll include relevant excerpts with the Blogposts.
Supreme Court: No Detention of Offsite Occupants During Searches of Homes
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By Christopher Doi
On February 19th, theSupreme Court announced that the detention of offsite occupants during awarranted search is an illegal seizure under the Fourth Amendment. In Bailey v.United States, law enforcement officers observed Bailey and another mandrive away from the premises prior to the execution of a search warrant. Theofficers subsequently followed and stopped both men approximately a mile away.During a pat down of Bailey, the officers’ discovered a key to the searchedpremises. The officers handcuffed and returnedboth men to the premises pursuant under the Summersrule. That rule articulated in Michiganv. Summers, allows law enforcement officers to detain occupants whileconducting their search. Bailey was charged with three drug and firearm-relatedfederal offenses. At trial, Baileymotioned to suppress the evidence of the key on grounds that it was obtained byduring an illegal seizure under the Fourth Amendment. After both the district courtand Second Circuit Court of Appeals denied the motion, the Supreme Courtreversed, limiting the Summers ruleto the immediate vicinity to be searched.
Under the FourthAmendment, detentions incident to the execution of a search warrant must bereasonable in that the law enforcement’s interest outweighs the intrusion onpersonal liberty. The government raised three law enforcement interests, under Summers, to justify the offsite detentions.First, the government argued that offsite detentions are necessary in order toensure officer safety by limiting the risk that individuals will return while the searchis in progress, limiting the risk that officers conducting the search wouldhave to confront dangerous individuals,and limiting the risk that an individual offsite might alert other onsiteoccupants. The Court rejected thisargument, explaining that officer safety can be achieved through othernon-intrusive means.
Second, the governmentargued that law enforcement interest in promoting efficiency of a searchjustifies the detention and return of individuals to the premises. The Court alsorejected this argument, reasoning that only the detention of occupants in the immediatevicinity of the search is justified to prevent occupants from interfering with theongoing search.
Third, the governmentargued that it has an interest in preventing individuals from fleeing onceincriminating evidence is discovered during a search. The Court agreed that unrestrained occupantscould adversely affect law enforcement if they believe the occupant could flee;however, the Court reasoned that allowing offsite detention was too broad andcould justify any detention during the course of a search, even of a person tenmiles away.
In an unusual alliance,Justices Breyer, Thomas, and Alito joined in a dissent arguing that the offsitedetention was justified because the detention was effected as soon asreasonably practicable. However, six justices, including conservative JusticesAnthony Kennedy and John Roberts, joined to hold that police can’t simply detainpeople far away from a property being searched. After Floridav. Harris, Johnsonv. Williams, and Chaidezv. United States spelled arough week for the rights of Americans accused of and charged with crimes, Bailey was a victory for the FourthAmendment.
By Christopher Doi
On February 19th, theSupreme Court announced that the detention of offsite occupants during awarranted search is an illegal seizure under the Fourth Amendment. In Bailey v.United States, law enforcement officers observed Bailey and another mandrive away from the premises prior to the execution of a search warrant. Theofficers subsequently followed and stopped both men approximately a mile away.During a pat down of Bailey, the officers’ discovered a key to the searchedpremises. The officers handcuffed and returnedboth men to the premises pursuant under the Summersrule. That rule articulated in Michiganv. Summers, allows law enforcement officers to detain occupants whileconducting their search. Bailey was charged with three drug and firearm-relatedfederal offenses. At trial, Baileymotioned to suppress the evidence of the key on grounds that it was obtained byduring an illegal seizure under the Fourth Amendment. After both the district courtand Second Circuit Court of Appeals denied the motion, the Supreme Courtreversed, limiting the Summers ruleto the immediate vicinity to be searched.
Under the FourthAmendment, detentions incident to the execution of a search warrant must bereasonable in that the law enforcement’s interest outweighs the intrusion onpersonal liberty. The government raised three law enforcement interests, under Summers, to justify the offsite detentions.First, the government argued that offsite detentions are necessary in order toensure officer safety by limiting the risk that individuals will return while the searchis in progress, limiting the risk that officers conducting the search wouldhave to confront dangerous individuals,and limiting the risk that an individual offsite might alert other onsiteoccupants. The Court rejected thisargument, explaining that officer safety can be achieved through othernon-intrusive means.
Second, the governmentargued that law enforcement interest in promoting efficiency of a searchjustifies the detention and return of individuals to the premises. The Court alsorejected this argument, reasoning that only the detention of occupants in the immediatevicinity of the search is justified to prevent occupants from interfering with theongoing search.
Third, the governmentargued that it has an interest in preventing individuals from fleeing onceincriminating evidence is discovered during a search. The Court agreed that unrestrained occupantscould adversely affect law enforcement if they believe the occupant could flee;however, the Court reasoned that allowing offsite detention was too broad andcould justify any detention during the course of a search, even of a person tenmiles away.
In an unusual alliance,Justices Breyer, Thomas, and Alito joined in a dissent arguing that the offsitedetention was justified because the detention was effected as soon asreasonably practicable. However, six justices, including conservative JusticesAnthony Kennedy and John Roberts, joined to hold that police can’t simply detainpeople far away from a property being searched. After Floridav. Harris, Johnsonv. Williams, and Chaidezv. United States spelled arough week for the rights of Americans accused of and charged with crimes, Bailey was a victory for the FourthAmendment.
23 Şubat 2013 Cumartesi
Washington Backs Syrian Anti-Goverment Terrorism
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Washington Backs Syrian Anti-Government Terrorism
by Stephen Lendman
Make no mistake. Syria is Washington's war. It was planned years ago. Regime change is policy. At issue is replacing Assad's government with a pro-Western puppet one.
Washington tolerates no independent governments. It demands subservience to US policies. Outliers are targeted for removal. Options include war.
Mass slaughter and destruction don't matter. Unchallenged dominance is policy. It's longstanding, ruthless and lawless.
Western-recruited death squads ravage Syria. They've done so for two years. They're imported from abroad. Rules of engagement include mass murder, torture, and other atrocities.
Pro-Assad loyalists are prime targets. Innocent civilians are massacred. Doing so is official US policy. Imperial wars are called liberating ones. Terrorism is what they do, not us.
Syria was peaceful before US proxies invaded. So was Libya in 2011. It was ravaged and destroyed. It remains unstable and violent. Libya 2.0 looms.
Syria may become NATO's latest charnel house. It's well along the way already. Countries are ravaged on the pretext of liberating them. Empires never say they're sorry. Policy isn't pretty. It's violent and lawless.
It reflects state terrorism. It proliferates death and destruction. It prioritizes wealth, power, privilege and dominance. Direct and proxy wars are waged.
Cutthroat killers are used. They're recruited abroad. They're heavily armed, trained, funded and directed. They're ordered to commit mass murder. Obama bears full responsibility. He's a war criminal multiple times over.
On February 22, the Syrian Arab News Agency (SANA) headlined "Fifty-Three Civilians Martyred, 235 Others Injured so far in Terrorist Bombing in al-Thawra Street in Damascus."
Attacks struck central Damascus' Mazraa neighborhood. Health Minister, Dr. Saad al-Nayef, said "terrorist bombing reflects the criminal nature of its perpetrators."
Innocent men, women, children, the elderly and infirm were massacred. Syria continues to be ravaged and destabilized.
Al-Hayat Hospital and Abdullah Bin al-Zubir school were heavily damaged. So was Russia's embassy. Itar Tass quoted a diplomat saying "The building has really been damaged. The windows are shattered."
Other car bombs struck Damascus' Barzeh neighborhood. A police station, telecommunications facility, and drug enforcement agency were targeted.
Mortar fire hit Syria's Army General staff headquarters, Tishreen Sports City and residential buildings. Authorities said a car loaded with tons of explosives was stopped before it exploded.
Perhaps the terrorist group Jabhat al-Nusra was involved. It's become Washington's lead belligerent. It vows to "liberate" Damascus. It claims responsibility for 17 or more February Damascus area terrorist attacks. They included at least seven bombings.
Syrian communities abroad, Russia, China, Iran and Hezbollah condemned Thursday's bombings.
Russian Foreign Ministry spokesman Alexander Lukashevich said:
"Once again, we call upon all countries and parties, which might influence the extremists and radicals, to pressure them and demand immediate stop of such terrorist acts and armed violence in order to create appropriate atmosphere to hold a Syrian dialogue that is based on Geneva statement issued last June, 2010."
UN Secretary-General Ban Ki-moon showed which side he supports. He's an imperial tool. He shames the office he holds. He violates UN Charter provisions. He urged both sides to show restraint. He called for ending Syria's crisis politically.
Syria's Foreign and Expatriates Ministry addressed two identical letters to the Security Council president and Ban. They condemned Thursday's bombings. They called them cowardly acts.
They targeted crowded civilian areas. They followed previous ones conducted by Al Qaeda linked groups. They get "financial and logistic support and media and political coverage from regional and (Western) countries."
SANA said:
"The Ministry added that the credibility of combating terrorism which has always been a matter of concern for the international community is now under unprecedented test as the most disgusting form of terrorism hit the Syrian civilians with no mercy or differentiating between an elderly man or a child."
"The letters added that Syria, in its previous letters to the UN Security Council and the UN Secretary General, called for firm and clear condemnation of these heinous terrorist crimes by the UN member states and for holding countries which support such acts as responsible, whatsoever the form of such support was."
"The Ministry said that Syria hopes the UN Security Council now will be able to adopt a firm stance which proves its commitment to combating terrorism regardless of its timing or place."
If the Security Council turns a blind eye, "it will deepen doubts in its seriousness in combating terrorism and its commitment to implementing its resolutions in this regard, in addition to the fact this will be considered as a kind of political concealment of these crimes."
The international community's credibility "is at test," it added. Failure to condemn this type terrorism is morally unconscionable.
It provides evidence of Western double standard duplicity. It reflects support for "organized terrorism." Doing so won't deter government forces from defending its citizens. Assad is committed to do so.
On February 21, Washington vetoed a Russian draft statement. It condemned Wednesday's terrorist attacks. Moscow denounced US policy. It reflects support for what demands condemnation.
Foreign Minister Sergey Lavrov left no doubt where Russia stands, saying:
"This opposition by our American partners....is not the first time in which they seek a form that justifies those who fight the Syrian regime."
"Russia sees in the American position an application of double standards and a dangerous approach in terms of the Americans moving away from the main principle of condemning terrorism in all its forms."
Russia's UN mission issued a statement saying:
"It is obvious that by doing so, the US delegation encourages those who have been repeatedly targeting American interests, including US diplomatic missions."
It's not the first time Washington obstructed responsible policy, it added. Moscow called doing so unacceptable. It reflects support for mass murder. It's official US policy.
It threatens Lebanon. Free Syrian Army General Selim Idriss accused Hezbollah of shelling villages around Qusayr in Homs Governorate.
He issued an ultimatum. He threatened to respond if attacks don't stop in 48 hours. He accused Hezbollah of sending combatants to Syria.
"As soon as the ultimatum ends," he added, "we will start responding to the sources of fire."
Hezbollah's Hassan Nasrallah categorically denies sending fighters to Syria. At the same time, he said party members may be acting individually. He added that around 30,000 Shitte Lebanese inhabit 22 Syrian villages. Volunteers defend them against terrorist attacks.
On February 21, Lebanon's Daily Star headlined "FSA claim of strikes on Lebanon false."
An FSA statement claimed otherwise. It said one of its battalions targeted two Hezbollah bases. It struck with mortars, "machine guns and anti-tank missiles." It did so near the Syrian/Lebanon border. It vowed more "surprises" ahead.
Longstanding Washington/Israeli policy prioritizes destabilizing Lebanon. At issue is replacing Hezbollah with pro-Western puppets, toppling Assad, isolating Iran, and solidifying US regional control.
Lebanon is small and vulnerable. From 1975 - 1989, it was wracked by internal conflict. From 1982 - 2000, Israel occupied southern Lebanon.
Hezbollah arose out of Israel's 1982 invasion. It's falsely called a terrorist organization. It's for political reasons. It's part of Lebanon's government. It's also a social, charitable, educational, and medical organization.
It provides essential social services. It's military wing is defensive. It threatens no one. It's prepared to respond forcefully if attacked. Israel learned the hard way in 2006. Its forces were outfoxed and humiliated. Israel yearns for revenge.
Involving Lebanon in Syria's war may be planned. Obama and Netanyahu may have that in mind.
On February 21, Mossad-connected DEBKAfile (DF) headlined "Hizbollah on high alert, jockeys for a role in potential Syrian peace accord," saying:
Its forces went on alert after the FSA's ultimatum expired. Will its Beqaa Valley serve Assad, DF asked? Will its forces get involved? Are ceasefire talks credible?
According to DF, Assad's military largely controls most of Syria. Ties to Hezbollah and Iran are firm. Each ally helps the others.
At the same time, FSA fighters may escalate conflict. They may conduct cross-border attacks. They're no match for Hezbollah's "far more organized and professional capabilities."
"If they decide to go on the offensive, they are liable to suffer heavy losses." Of greater concern is widening Syria's conflict.
Israel's currently involved. Last fall, IDF tanks shelled Syrian mortar batteries. Washington OK'd Israeli air strikes. Several targets were struck.
Israeli warplanes invade Lebanese airspace multiple times daily. They do so without permission. Policy is longstanding. It violates international law. Perhaps escalated conflict is planned.
It shouldn't surprise. Washington and Israel partner in imperial lawlessness. Syria, Hezbollah, Hamas, and Iran are prime targets. Regional conflict may follow. What's possible bears watching. Future updates will discuss more.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
http://www.claritypress.com/LendmanII.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
http://www.dailycensored.com/washington-backs-syrian-anti-goverment-terrorism/
Washington Backs Syrian Anti-Government Terrorism
by Stephen Lendman
Make no mistake. Syria is Washington's war. It was planned years ago. Regime change is policy. At issue is replacing Assad's government with a pro-Western puppet one.
Washington tolerates no independent governments. It demands subservience to US policies. Outliers are targeted for removal. Options include war.
Mass slaughter and destruction don't matter. Unchallenged dominance is policy. It's longstanding, ruthless and lawless.
Western-recruited death squads ravage Syria. They've done so for two years. They're imported from abroad. Rules of engagement include mass murder, torture, and other atrocities.
Pro-Assad loyalists are prime targets. Innocent civilians are massacred. Doing so is official US policy. Imperial wars are called liberating ones. Terrorism is what they do, not us.
Syria was peaceful before US proxies invaded. So was Libya in 2011. It was ravaged and destroyed. It remains unstable and violent. Libya 2.0 looms.
Syria may become NATO's latest charnel house. It's well along the way already. Countries are ravaged on the pretext of liberating them. Empires never say they're sorry. Policy isn't pretty. It's violent and lawless.
It reflects state terrorism. It proliferates death and destruction. It prioritizes wealth, power, privilege and dominance. Direct and proxy wars are waged.
Cutthroat killers are used. They're recruited abroad. They're heavily armed, trained, funded and directed. They're ordered to commit mass murder. Obama bears full responsibility. He's a war criminal multiple times over.
On February 22, the Syrian Arab News Agency (SANA) headlined "Fifty-Three Civilians Martyred, 235 Others Injured so far in Terrorist Bombing in al-Thawra Street in Damascus."
Attacks struck central Damascus' Mazraa neighborhood. Health Minister, Dr. Saad al-Nayef, said "terrorist bombing reflects the criminal nature of its perpetrators."
Innocent men, women, children, the elderly and infirm were massacred. Syria continues to be ravaged and destabilized.
Al-Hayat Hospital and Abdullah Bin al-Zubir school were heavily damaged. So was Russia's embassy. Itar Tass quoted a diplomat saying "The building has really been damaged. The windows are shattered."
Other car bombs struck Damascus' Barzeh neighborhood. A police station, telecommunications facility, and drug enforcement agency were targeted.
Mortar fire hit Syria's Army General staff headquarters, Tishreen Sports City and residential buildings. Authorities said a car loaded with tons of explosives was stopped before it exploded.
Perhaps the terrorist group Jabhat al-Nusra was involved. It's become Washington's lead belligerent. It vows to "liberate" Damascus. It claims responsibility for 17 or more February Damascus area terrorist attacks. They included at least seven bombings.
Syrian communities abroad, Russia, China, Iran and Hezbollah condemned Thursday's bombings.
Russian Foreign Ministry spokesman Alexander Lukashevich said:
"Once again, we call upon all countries and parties, which might influence the extremists and radicals, to pressure them and demand immediate stop of such terrorist acts and armed violence in order to create appropriate atmosphere to hold a Syrian dialogue that is based on Geneva statement issued last June, 2010."
UN Secretary-General Ban Ki-moon showed which side he supports. He's an imperial tool. He shames the office he holds. He violates UN Charter provisions. He urged both sides to show restraint. He called for ending Syria's crisis politically.
Syria's Foreign and Expatriates Ministry addressed two identical letters to the Security Council president and Ban. They condemned Thursday's bombings. They called them cowardly acts.
They targeted crowded civilian areas. They followed previous ones conducted by Al Qaeda linked groups. They get "financial and logistic support and media and political coverage from regional and (Western) countries."
SANA said:
"The Ministry added that the credibility of combating terrorism which has always been a matter of concern for the international community is now under unprecedented test as the most disgusting form of terrorism hit the Syrian civilians with no mercy or differentiating between an elderly man or a child."
"The letters added that Syria, in its previous letters to the UN Security Council and the UN Secretary General, called for firm and clear condemnation of these heinous terrorist crimes by the UN member states and for holding countries which support such acts as responsible, whatsoever the form of such support was."
"The Ministry said that Syria hopes the UN Security Council now will be able to adopt a firm stance which proves its commitment to combating terrorism regardless of its timing or place."
If the Security Council turns a blind eye, "it will deepen doubts in its seriousness in combating terrorism and its commitment to implementing its resolutions in this regard, in addition to the fact this will be considered as a kind of political concealment of these crimes."
The international community's credibility "is at test," it added. Failure to condemn this type terrorism is morally unconscionable.
It provides evidence of Western double standard duplicity. It reflects support for "organized terrorism." Doing so won't deter government forces from defending its citizens. Assad is committed to do so.
On February 21, Washington vetoed a Russian draft statement. It condemned Wednesday's terrorist attacks. Moscow denounced US policy. It reflects support for what demands condemnation.
Foreign Minister Sergey Lavrov left no doubt where Russia stands, saying:
"This opposition by our American partners....is not the first time in which they seek a form that justifies those who fight the Syrian regime."
"Russia sees in the American position an application of double standards and a dangerous approach in terms of the Americans moving away from the main principle of condemning terrorism in all its forms."
Russia's UN mission issued a statement saying:
"It is obvious that by doing so, the US delegation encourages those who have been repeatedly targeting American interests, including US diplomatic missions."
It's not the first time Washington obstructed responsible policy, it added. Moscow called doing so unacceptable. It reflects support for mass murder. It's official US policy.
It threatens Lebanon. Free Syrian Army General Selim Idriss accused Hezbollah of shelling villages around Qusayr in Homs Governorate.
He issued an ultimatum. He threatened to respond if attacks don't stop in 48 hours. He accused Hezbollah of sending combatants to Syria.
"As soon as the ultimatum ends," he added, "we will start responding to the sources of fire."
Hezbollah's Hassan Nasrallah categorically denies sending fighters to Syria. At the same time, he said party members may be acting individually. He added that around 30,000 Shitte Lebanese inhabit 22 Syrian villages. Volunteers defend them against terrorist attacks.
On February 21, Lebanon's Daily Star headlined "FSA claim of strikes on Lebanon false."
An FSA statement claimed otherwise. It said one of its battalions targeted two Hezbollah bases. It struck with mortars, "machine guns and anti-tank missiles." It did so near the Syrian/Lebanon border. It vowed more "surprises" ahead.
Longstanding Washington/Israeli policy prioritizes destabilizing Lebanon. At issue is replacing Hezbollah with pro-Western puppets, toppling Assad, isolating Iran, and solidifying US regional control.
Lebanon is small and vulnerable. From 1975 - 1989, it was wracked by internal conflict. From 1982 - 2000, Israel occupied southern Lebanon.
Hezbollah arose out of Israel's 1982 invasion. It's falsely called a terrorist organization. It's for political reasons. It's part of Lebanon's government. It's also a social, charitable, educational, and medical organization.
It provides essential social services. It's military wing is defensive. It threatens no one. It's prepared to respond forcefully if attacked. Israel learned the hard way in 2006. Its forces were outfoxed and humiliated. Israel yearns for revenge.
Involving Lebanon in Syria's war may be planned. Obama and Netanyahu may have that in mind.
On February 21, Mossad-connected DEBKAfile (DF) headlined "Hizbollah on high alert, jockeys for a role in potential Syrian peace accord," saying:
Its forces went on alert after the FSA's ultimatum expired. Will its Beqaa Valley serve Assad, DF asked? Will its forces get involved? Are ceasefire talks credible?
According to DF, Assad's military largely controls most of Syria. Ties to Hezbollah and Iran are firm. Each ally helps the others.
At the same time, FSA fighters may escalate conflict. They may conduct cross-border attacks. They're no match for Hezbollah's "far more organized and professional capabilities."
"If they decide to go on the offensive, they are liable to suffer heavy losses." Of greater concern is widening Syria's conflict.
Israel's currently involved. Last fall, IDF tanks shelled Syrian mortar batteries. Washington OK'd Israeli air strikes. Several targets were struck.
Israeli warplanes invade Lebanese airspace multiple times daily. They do so without permission. Policy is longstanding. It violates international law. Perhaps escalated conflict is planned.
It shouldn't surprise. Washington and Israel partner in imperial lawlessness. Syria, Hezbollah, Hamas, and Iran are prime targets. Regional conflict may follow. What's possible bears watching. Future updates will discuss more.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
http://www.claritypress.com/LendmanII.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
http://www.dailycensored.com/washington-backs-syrian-anti-goverment-terrorism/
UNESCO Peace Prize to a War Criminal
To contact us Click HERE
UNESCO Peace Prize to a War Criminal
by Stephen Lendman
It shouldn't surprise. Nobel committee members prioritize doing it. America's Presidential Medal of Freedom honors genocidists. So does Israel's equivalent award.
UNESCO is the UN's educational, scientific and cultural organization. It stresses "building peace in the minds of men and women."
It "works to create the conditions for dialogue among civilizations, cultures and peoples, based upon respect for commonly shared values."
Through dialogue it hopes "world can achieve global visions of sustainable development encompassing observance of human rights, mutual respect and the alleviation of poverty, all of which are at the heart of UNESCO’S mission and activities."
Its rhetoric and policies differ. Double standards reflect UN priorities. Officials are Western tools. They honor their own. They violate UN Charter provisions.
They do so with impunity. Millions die as a result. Millions more suffer horrendously. Imperial ruthlessness assures it. Global dominance is prioritized.
Mass destruction and slaughter further what international law prohibits. UNESCO paid no attention. Doing so allies it with wrong over right. It betrays its mandate. It calls for respecting commonly shared values and human rights.
On February 21, the UN News Centre headlined "French President Francois Hollande awarded UNESCO peace prize." It's for his "valuable contribution to peace and stability in Africa."
He's gone all out to wreck it. He's waging lawless imperial aggression. He's slaughtering innocent civilians. He's committing crimes of war and against humanity.
Former Mozambique President Joaquim Chissano chairs UNESCO's Felix Houphouet-Boigny Peace Prize. It was established in 1989. It was done at UNESCO's 25th session.
It's named after a man closely associated with France's colonial past. He was Ivory Coast's first president. UNESCO calls him the "Sage of Africa." Why it has to explain.
The prize honors "living individuals and active public or private bodies or institutions that have made a significant contribution to promoting, seeking, safeguarding or maintaining peace, in conformity with the Charter of the United Nations and the Constitution of UNESCO."
"After analyzing the global situation, it is Africa that held the attention of the Jury with the various threats affecting the continent," said Chissano.
"Having assessed the dangers and the repercussions of the situation on Africa, and on Mali in particular, as well as on the rest of the world, the Jury appreciated the solidarity shown by France to the peoples of Africa." he added.
He'll have to explain how he avoided choking on his words. Hollande gets $150,000, a gold medal, and a diploma.
He deserves longterm black and white-stripped suit imprisonment on bread and water breaking rocks in summer heat and freezing cold.
He'll receive his award on a date to be named later. Perhaps UNESCO wants to give him more time to kill. It wouldn't be the first time a UN agency backed imperial aggression. For sure it won't be the last.
Throughout its history, UN officials did more to support war than prevent it. It deplores peace. It's been more than ever true under Kofi Annan and Ban Ki-moon.
Straightaway as Secretary-Generals, they betrayed their mandate. They're duplicitous imperial tools. They're complicit in millions of deaths. They're war criminals multiple times over.
UNESCO's award shames an organization claiming higher standards. Honoring what demands condemnation proves otherwise.
Hollande declared war on Mali. He's Washington's lead attack dog. He served the same role in Libya.
At issue is controlling Africa's resources. They're rich enough to matter.
Mali's include oil, uranium, diamonds, phosphates, bauxite, lignite, kaolin, salt, limestone, gypsum, granite, marble, diatomite, hydropower, iron ore, manganese, tin, lead, zinc, and copper.
Mali matters. US special forces are involved. Washington's supplying logistical, air, and intelligence support.
Much more than Mali is at stake. Shutting out China is priotitized.
Since the late 1990s, its trade with Africa rose over twenty-fold. Washington views this with alarm. Beijing challenges its dominance. Eurasian ones and others aren't tolerated.
America's grand geopolitical strategy prioritizes Eurasian dominance. China is America's chief economic rival. It's dependent on vital resources. Africa supplies substantial amounts.
Washington wants Beijing shut out of what it wants unchallenged control. AFRICOM was established to rape the continent's riches. Waging war on Libya and Mali suggest further conflicts ahead.
Hollande is very much involved. He wants France to get a piece of the pie. He wants French colonialism reinvented in new form.
Mali is the fourth country France attacked since 2011. Others include Libya, Ivory Coast and Syria. Reasons given ring hollow. All except Libya were former French colonies. France's "fundamental interests" have nothing to do with defending democracy.
French imperialism is longstanding. Hollande hopes to reassert its former dominance. He's waging war to do so. He's slaughtering innocent civilians.
Holland, Washington, and supportive allies back Mali's unpopular regime. They're allied with other repressive African governments.
At issue is recolonizing the continent. UNESCO's award honors Hollande for doing so. It shames itself in the process. War criminals deserve condemnation, prosecution and imprisonment.
Awards embolden them to commit more high crimes. America's permanent war policy commits horrendous ones daily.
Nobel committee members honored Obama for doing so. Israel plans doing the same thing. He'll receive its Presidential Medal of Distinction during his March visit.
Israeli President Shimon Peres will award it. He deplores democracy. He spurns civil and human rights. He's a war criminal multiple times over.
Washington gave him America's Presidential Medal of Freedom. It did so last year. He got it despite his criminal past. He waged war on fundamental freedoms for decades.
One war criminal honors another. Hollande joins their ranks. Imperial partners reward each other. They do so for waging war on humanity. Perhaps they plan exterminating it altogether.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
http://www.claritypress.com/LendmanII.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
http://www.dailycensored.com/unesco-peace-prize-to-a-war-criminal/
UNESCO Peace Prize to a War Criminal
by Stephen Lendman
It shouldn't surprise. Nobel committee members prioritize doing it. America's Presidential Medal of Freedom honors genocidists. So does Israel's equivalent award.
UNESCO is the UN's educational, scientific and cultural organization. It stresses "building peace in the minds of men and women."
It "works to create the conditions for dialogue among civilizations, cultures and peoples, based upon respect for commonly shared values."
Through dialogue it hopes "world can achieve global visions of sustainable development encompassing observance of human rights, mutual respect and the alleviation of poverty, all of which are at the heart of UNESCO’S mission and activities."
Its rhetoric and policies differ. Double standards reflect UN priorities. Officials are Western tools. They honor their own. They violate UN Charter provisions.
They do so with impunity. Millions die as a result. Millions more suffer horrendously. Imperial ruthlessness assures it. Global dominance is prioritized.
Mass destruction and slaughter further what international law prohibits. UNESCO paid no attention. Doing so allies it with wrong over right. It betrays its mandate. It calls for respecting commonly shared values and human rights.
On February 21, the UN News Centre headlined "French President Francois Hollande awarded UNESCO peace prize." It's for his "valuable contribution to peace and stability in Africa."
He's gone all out to wreck it. He's waging lawless imperial aggression. He's slaughtering innocent civilians. He's committing crimes of war and against humanity.
Former Mozambique President Joaquim Chissano chairs UNESCO's Felix Houphouet-Boigny Peace Prize. It was established in 1989. It was done at UNESCO's 25th session.
It's named after a man closely associated with France's colonial past. He was Ivory Coast's first president. UNESCO calls him the "Sage of Africa." Why it has to explain.
The prize honors "living individuals and active public or private bodies or institutions that have made a significant contribution to promoting, seeking, safeguarding or maintaining peace, in conformity with the Charter of the United Nations and the Constitution of UNESCO."
"After analyzing the global situation, it is Africa that held the attention of the Jury with the various threats affecting the continent," said Chissano.
"Having assessed the dangers and the repercussions of the situation on Africa, and on Mali in particular, as well as on the rest of the world, the Jury appreciated the solidarity shown by France to the peoples of Africa." he added.
He'll have to explain how he avoided choking on his words. Hollande gets $150,000, a gold medal, and a diploma.
He deserves longterm black and white-stripped suit imprisonment on bread and water breaking rocks in summer heat and freezing cold.
He'll receive his award on a date to be named later. Perhaps UNESCO wants to give him more time to kill. It wouldn't be the first time a UN agency backed imperial aggression. For sure it won't be the last.
Throughout its history, UN officials did more to support war than prevent it. It deplores peace. It's been more than ever true under Kofi Annan and Ban Ki-moon.
Straightaway as Secretary-Generals, they betrayed their mandate. They're duplicitous imperial tools. They're complicit in millions of deaths. They're war criminals multiple times over.
UNESCO's award shames an organization claiming higher standards. Honoring what demands condemnation proves otherwise.
Hollande declared war on Mali. He's Washington's lead attack dog. He served the same role in Libya.
At issue is controlling Africa's resources. They're rich enough to matter.
Mali's include oil, uranium, diamonds, phosphates, bauxite, lignite, kaolin, salt, limestone, gypsum, granite, marble, diatomite, hydropower, iron ore, manganese, tin, lead, zinc, and copper.
Mali matters. US special forces are involved. Washington's supplying logistical, air, and intelligence support.
Much more than Mali is at stake. Shutting out China is priotitized.
Since the late 1990s, its trade with Africa rose over twenty-fold. Washington views this with alarm. Beijing challenges its dominance. Eurasian ones and others aren't tolerated.
America's grand geopolitical strategy prioritizes Eurasian dominance. China is America's chief economic rival. It's dependent on vital resources. Africa supplies substantial amounts.
Washington wants Beijing shut out of what it wants unchallenged control. AFRICOM was established to rape the continent's riches. Waging war on Libya and Mali suggest further conflicts ahead.
Hollande is very much involved. He wants France to get a piece of the pie. He wants French colonialism reinvented in new form.
Mali is the fourth country France attacked since 2011. Others include Libya, Ivory Coast and Syria. Reasons given ring hollow. All except Libya were former French colonies. France's "fundamental interests" have nothing to do with defending democracy.
French imperialism is longstanding. Hollande hopes to reassert its former dominance. He's waging war to do so. He's slaughtering innocent civilians.
Holland, Washington, and supportive allies back Mali's unpopular regime. They're allied with other repressive African governments.
At issue is recolonizing the continent. UNESCO's award honors Hollande for doing so. It shames itself in the process. War criminals deserve condemnation, prosecution and imprisonment.
Awards embolden them to commit more high crimes. America's permanent war policy commits horrendous ones daily.
Nobel committee members honored Obama for doing so. Israel plans doing the same thing. He'll receive its Presidential Medal of Distinction during his March visit.
Israeli President Shimon Peres will award it. He deplores democracy. He spurns civil and human rights. He's a war criminal multiple times over.
Washington gave him America's Presidential Medal of Freedom. It did so last year. He got it despite his criminal past. He waged war on fundamental freedoms for decades.
One war criminal honors another. Hollande joins their ranks. Imperial partners reward each other. They do so for waging war on humanity. Perhaps they plan exterminating it altogether.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
http://www.claritypress.com/LendmanII.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
http://www.dailycensored.com/unesco-peace-prize-to-a-war-criminal/
Understanding Israeli Settlements
To contact us Click HERE
Understanding Israeli Settlements
by Stephen Lendman
They violate international law. They prioritize land theft. They prevent peace. On January 31, the UN International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory condemned them for good reason.
They deny Palestinian self-determination. They comprise "part of an overall pattern of (Israeli) breaches."
They benefit Jews exclusively. They institutionalize racist segregation, inequality, dispossession, and occupation harshness.
The UN Mission wants them halted without preconditions. It called for "immediately initiat(ing) a process of withdrawal of all settlers from the OPT."
It wants companies and governments to "assess the human rights impact of their activities."
It wants them to "cease all connections to settlements." It wants decades of Israeli lawlessness ended.
The David Project (DP) "shapes campus opinion on Israel by educating, training, and empowering student leaders to be thoughtful, strategic and persuasive advocates."
They do so for what they should condemn. Their programs operate in more than 130 Jewish high schools and middle schools.
David Bernstein is executive director. "We have moved from a more frontal approach to advocacy to a more relational" one, he said.
"We believe relationships make the world go round."
"We educate and empower students in both the content and the skills necessary to form a robust network of relationships on campus, and teach and guide them in leveraging those relationships to raise understanding and support for Israel."
"We also have moved from addressing problems wherever they appear (there are 4000 institutions of higher learning in this country alone!) to a more focused approach in which we pick our spots carefully, knowing that to be all things to all people means that you are not going to be very effective at any one place."
Its "Understanding The Settlements: A Primer" addresses the growing controversy. It goes "beyond headlines and sound bites," it claims.
It tries putting lipstick on a pig. Doing so reflects Israeli vulnerability.
It claims feature stories "lack depth, nuance and detailed understanding." It calls settlement development "complicated."
It's as simple as knowing right from wrong. International law is clear and unequivocal.
Israeli settlements are illegal. Fourth Geneva's Article 49 states:
"Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."
Israel built illegally for decades. Around 600,000 settlers occupy over half the West Bank and parts of East Jerusalem.
Accelerated construction is planned. Doing so requires stealing Palestinian land, demolishing private homes, and dispossessing residents.
DP claims otherwise.
"Settlements are often described as monolithic, and reporters fail to note the unique histories, populations and economics of each community, as well as their distinct political ramifications."
According to DP's Campus & Educational Initiatives director Todd Young:
"Speaking in a more simplistic manner and relying on stereotypes of a complicated issue such as settlements is a disservice to students and the public."
Setting the record straight demands not distorting it.
"Settlements are not homogenous, they are diverse, and we should understand how they impact Israel and Palestinians," he added.
At issue is inviolable international law, not diversity, homogeneity, or other unrelated issues.
DP falls short claiming to be fair. It defends the indefensible. Calls to stop scapegoating Israeli settlements don't work. Responsible critics have irrefutable facts. They demand lawless settlement activity be confronted head-on.
DP tries with its primer. It reviews settlement history and geography. It avoids inflammatory language. It shuns sweeping generalizations.
It tries doing the impossible. It represents Israel's point of view. At the same time, it discusses reality. It concludes saying settlements aren't monolithic.
They can't be painted with a broad brush. More learning and "meaningful conversations" are needed.
Liberating Palestine matters most. So does government treating all its people equitably and fairly. DP needs reeducation help.
Defending the indefensible doesn't wash. Peace, equity, justice, and respecting rule of law principles matter most.
Israel fell short from inception. It was born in blood. Growing millions know. It's a rogue terror state. It's amoral, brutish, and ruthless.
It deplores peace and stability. It lives by the sword. It's a modern-day Sparta. It threatens the region and humanity. It's leaders are war criminals.
They bear full responsibility for decades of lawlessness. State terror is official policy. Arabs are murdered for not being Jews.
Settlement policy is one of many Israeli Achilles heels. Justifying them doesn't wash. Those trying support wrong over right. Doing so makes them look foolish.
Hasbara is an Israeli euphemism for propaganda. It covers up inconvenient truths. It picks and choses selected versions. Practitioners believe their arguments hold water. They're convinced their way is right.
Hasbara is a leap of faith. It's official Israeli policy. It turns truth on its head. It tries framing the unjustifiable to wash. It tries convincing people to believe it. It attacks naysayers. It doesn't work as planned. Israel proliferates it anyway.
It prioritizes making settlements "hasbarable." Doing so substitutes for addressing issues responsibly.
Observers call Netanyahu Israel's hasbara grandmaster. He's a con man. He speaks flawless Hebrew and English. He claims Israel is right when it's wrong.
He doesn't let inconvenient facts change his version of truth. It's reason enough for him to be prime minister.
He claims settlements don't prevent Palestinian self-determination. It's "simply not true," he says.
He did so late last year while doubling Israel's budget for expanding them. Finance Minister Yuval Steinitz confirmed it. He ought to know.
He manages state revenues. He prepares and monitors implementation of Israel's economic and financial policies. He accounts for every shekel spent.
He said settlement budgeting doubled quietly. It was done to prevent "elements in Israel and abroad" from impeding them.
At stake is stealing all parts of Judea and Samaria Israel wants. Netanyahu and likeminded extremists prioritize doing it.
Since 1967, Israel established 124 West Bank settlements, 100 outposts, and 12 neighborhoods.
Settler enclaves were built in East Jerusalem areas. They include the Old City's Muslim Quarter, Silwan, Sheikh Jarrach, Mount of Olives, Ras al-Amud, Abu Dis, and Jabal al-Mukabber.
In 2005, 16 Gaza settlements were dismantled as part of Israel's disengagement plan. Residents were shifted to other settlement locations.
Occupied Palestine reflects colonization and discriminatory apartheid. It's worse than what South Africa experienced. Separate and unequal is policy.
Civil law governs settlers. Military orders deprive Palestinians of fundamental rights. They have no control over their daily lives. Their land is systematically stolen.
They're denied free expression and movement. Their homes are bulldozed and destroyed. They're uprooted and displaced.
They're forbidden from returning to land once theirs. They're denied redress. West Bank reconfiguration plans intend to isolate them in ghettoized bantustans. Sovereign viability is impossible.
Two states once were possible. No longer. Israel controls over half the West Bank. It has much of East Jerusalem. More is added daily. When completed, Israel's apartheid wall will control over 10% of Palestine.
One state comprised of Israel and Occupied Palestine alone works now. Nothing else is viable.
Israel won't relinquish Palestinian territory it controls. Conditions go from bad to worse.
Doves and hardliners agree. Militarized occupation, land theft, dispossessions, inequality, a permanent non-Jewish underclass, instability, and conflict are institutionalized.
Changing what's hardwired isn't easy. Justifying it is unconscionable. Lipstick on a pig doesn't wash.
Justice demands righting longstanding wrongs. Palestinians dream impossible dreams. One day perhaps they'll come true. Palestinians hope it's just a matter of time.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
http://www.claritypress.com/LendmanII.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
Understanding Israeli Settlements
by Stephen Lendman
They violate international law. They prioritize land theft. They prevent peace. On January 31, the UN International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory condemned them for good reason.
They deny Palestinian self-determination. They comprise "part of an overall pattern of (Israeli) breaches."
They benefit Jews exclusively. They institutionalize racist segregation, inequality, dispossession, and occupation harshness.
The UN Mission wants them halted without preconditions. It called for "immediately initiat(ing) a process of withdrawal of all settlers from the OPT."
It wants companies and governments to "assess the human rights impact of their activities."
It wants them to "cease all connections to settlements." It wants decades of Israeli lawlessness ended.
The David Project (DP) "shapes campus opinion on Israel by educating, training, and empowering student leaders to be thoughtful, strategic and persuasive advocates."
They do so for what they should condemn. Their programs operate in more than 130 Jewish high schools and middle schools.
David Bernstein is executive director. "We have moved from a more frontal approach to advocacy to a more relational" one, he said.
"We believe relationships make the world go round."
"We educate and empower students in both the content and the skills necessary to form a robust network of relationships on campus, and teach and guide them in leveraging those relationships to raise understanding and support for Israel."
"We also have moved from addressing problems wherever they appear (there are 4000 institutions of higher learning in this country alone!) to a more focused approach in which we pick our spots carefully, knowing that to be all things to all people means that you are not going to be very effective at any one place."
Its "Understanding The Settlements: A Primer" addresses the growing controversy. It goes "beyond headlines and sound bites," it claims.
It tries putting lipstick on a pig. Doing so reflects Israeli vulnerability.
It claims feature stories "lack depth, nuance and detailed understanding." It calls settlement development "complicated."
It's as simple as knowing right from wrong. International law is clear and unequivocal.
Israeli settlements are illegal. Fourth Geneva's Article 49 states:
"Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."
Israel built illegally for decades. Around 600,000 settlers occupy over half the West Bank and parts of East Jerusalem.
Accelerated construction is planned. Doing so requires stealing Palestinian land, demolishing private homes, and dispossessing residents.
DP claims otherwise.
"Settlements are often described as monolithic, and reporters fail to note the unique histories, populations and economics of each community, as well as their distinct political ramifications."
According to DP's Campus & Educational Initiatives director Todd Young:
"Speaking in a more simplistic manner and relying on stereotypes of a complicated issue such as settlements is a disservice to students and the public."
Setting the record straight demands not distorting it.
"Settlements are not homogenous, they are diverse, and we should understand how they impact Israel and Palestinians," he added.
At issue is inviolable international law, not diversity, homogeneity, or other unrelated issues.
DP falls short claiming to be fair. It defends the indefensible. Calls to stop scapegoating Israeli settlements don't work. Responsible critics have irrefutable facts. They demand lawless settlement activity be confronted head-on.
DP tries with its primer. It reviews settlement history and geography. It avoids inflammatory language. It shuns sweeping generalizations.
It tries doing the impossible. It represents Israel's point of view. At the same time, it discusses reality. It concludes saying settlements aren't monolithic.
They can't be painted with a broad brush. More learning and "meaningful conversations" are needed.
Liberating Palestine matters most. So does government treating all its people equitably and fairly. DP needs reeducation help.
Defending the indefensible doesn't wash. Peace, equity, justice, and respecting rule of law principles matter most.
Israel fell short from inception. It was born in blood. Growing millions know. It's a rogue terror state. It's amoral, brutish, and ruthless.
It deplores peace and stability. It lives by the sword. It's a modern-day Sparta. It threatens the region and humanity. It's leaders are war criminals.
They bear full responsibility for decades of lawlessness. State terror is official policy. Arabs are murdered for not being Jews.
Settlement policy is one of many Israeli Achilles heels. Justifying them doesn't wash. Those trying support wrong over right. Doing so makes them look foolish.
Hasbara is an Israeli euphemism for propaganda. It covers up inconvenient truths. It picks and choses selected versions. Practitioners believe their arguments hold water. They're convinced their way is right.
Hasbara is a leap of faith. It's official Israeli policy. It turns truth on its head. It tries framing the unjustifiable to wash. It tries convincing people to believe it. It attacks naysayers. It doesn't work as planned. Israel proliferates it anyway.
It prioritizes making settlements "hasbarable." Doing so substitutes for addressing issues responsibly.
Observers call Netanyahu Israel's hasbara grandmaster. He's a con man. He speaks flawless Hebrew and English. He claims Israel is right when it's wrong.
He doesn't let inconvenient facts change his version of truth. It's reason enough for him to be prime minister.
He claims settlements don't prevent Palestinian self-determination. It's "simply not true," he says.
He did so late last year while doubling Israel's budget for expanding them. Finance Minister Yuval Steinitz confirmed it. He ought to know.
He manages state revenues. He prepares and monitors implementation of Israel's economic and financial policies. He accounts for every shekel spent.
He said settlement budgeting doubled quietly. It was done to prevent "elements in Israel and abroad" from impeding them.
At stake is stealing all parts of Judea and Samaria Israel wants. Netanyahu and likeminded extremists prioritize doing it.
Since 1967, Israel established 124 West Bank settlements, 100 outposts, and 12 neighborhoods.
Settler enclaves were built in East Jerusalem areas. They include the Old City's Muslim Quarter, Silwan, Sheikh Jarrach, Mount of Olives, Ras al-Amud, Abu Dis, and Jabal al-Mukabber.
In 2005, 16 Gaza settlements were dismantled as part of Israel's disengagement plan. Residents were shifted to other settlement locations.
Occupied Palestine reflects colonization and discriminatory apartheid. It's worse than what South Africa experienced. Separate and unequal is policy.
Civil law governs settlers. Military orders deprive Palestinians of fundamental rights. They have no control over their daily lives. Their land is systematically stolen.
They're denied free expression and movement. Their homes are bulldozed and destroyed. They're uprooted and displaced.
They're forbidden from returning to land once theirs. They're denied redress. West Bank reconfiguration plans intend to isolate them in ghettoized bantustans. Sovereign viability is impossible.
Two states once were possible. No longer. Israel controls over half the West Bank. It has much of East Jerusalem. More is added daily. When completed, Israel's apartheid wall will control over 10% of Palestine.
One state comprised of Israel and Occupied Palestine alone works now. Nothing else is viable.
Israel won't relinquish Palestinian territory it controls. Conditions go from bad to worse.
Doves and hardliners agree. Militarized occupation, land theft, dispossessions, inequality, a permanent non-Jewish underclass, instability, and conflict are institutionalized.
Changing what's hardwired isn't easy. Justifying it is unconscionable. Lipstick on a pig doesn't wash.
Justice demands righting longstanding wrongs. Palestinians dream impossible dreams. One day perhaps they'll come true. Palestinians hope it's just a matter of time.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
http://www.claritypress.com/LendmanII.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
Second Circuit - Fosamax Plaintiff's Expert Testimony a Sham
To contact us Click HERE
Schadenfreude - That probably best describes how we felt when we read Secrest v. Merck, Sharp & Dohme Corp., No. 11-4358, slip op. (2d Cir. Jan. 30, 2013). We've seen time and time again how plaintiffs attempt to manipulate treating physician testimony, usually but not always cloaked by biased judicial rulings that prevent one side - our side - from talking to treaters informally, while giving plaintiffs full reign to subject treaters to all manner of persuasion.
That evidently happened in Secrest, and produced contradictory treater testimony so grotesque that the Second Circuit recoiled, calling it a "sham" in a for-publication decision.
Here's an outline. Plaintiff took Fosamax over a period of years prescribed by Dr. X and then Dr. Y. Dr. Y apparently did not testify, or at least his testimony was considered irrelevant by both sides. Dr. X testified as a fact witness that at the time plaintiff suffered her injury (bone deterioration in the jaw - "ONJ") he (Dr. X) "was not aware" that plaintiff continued to take Fosamax (then being prescribed by Dr. Y). Secrest, slip op. at 5.
Then the defendant moved for summary judgment against the warning claim on causation grounds - because if Dr. X didn't know about plaintiff's Fosamax use, he couldn't have been affected by an allegedly inadequate warning. Why would a treater say anything about the risks of a drug that s/he didn't know that the plaintiff was taking?
After the motion was filed, up popped Dr. X again - this time serving as the plaintiff's expert.
To any naif out there, that means Dr. X was now on the plaintiff's payroll.
Predictably, Dr. X has changed his tune, offering utterly contradictory testimony in a second expert deposition that he actually did know about plaintiff's Fosamax use during the critical time. Specifically:
By contrast, in his [second] deposition, Dr. [X] testified that he “knewshe was on [Fosamax]” in [the critical time] and that, had [defendant] warned him about therisk of ONJ, he would have recommended that [plaintiff] stop taking Fosamax.
Neither the district court (which granted summary judgment anyway) nor the Second Circuit was having any part of Dr. X's changed testimony.
It was a "sham."
[C]onsidering Dr. [X]’s clearly contradictory testimony . . .we hold that the District Court was entitled to disregard Dr. [X]’s new testimonyrelating to his knowledge based on the “sham issue of fact” doctrine, whichprohibits a party from defeating summary judgment simply by submitting anaffidavit that contradicts the party’s previous sworn testimony. Although we have typically applied the shamissue of fact doctrine where a party submits an affidavit that contradicts theparty’s own prior statements, it may also apply when a party attempts to useevidence from an expert witness to defeat summary judgment.
Moreover, the plaintiff "ha[d] not proffered a plausible explanation" for Dr. X's testimonial gymnastics, but only argued that "credibility determinations are left to the jury." Id. at 9. The timing - after the filing of a summary judgment motion - was also extremely suspect. Id. at 10. Thus summary judgment was affirmed. That's as close as you'll see an appellate court come to calling a witness a liar without actually doing so. Schadenfreude - it feels good.
For the record, after summary judgment was granted on the warning claims in Secrest, non-warning claims (design defect) were tried to a jury and plaintiff lost again. The Second Circuit also summarily affirmed the jury verdict in a second, unpublished opinion, here.
That evidently happened in Secrest, and produced contradictory treater testimony so grotesque that the Second Circuit recoiled, calling it a "sham" in a for-publication decision.
Here's an outline. Plaintiff took Fosamax over a period of years prescribed by Dr. X and then Dr. Y. Dr. Y apparently did not testify, or at least his testimony was considered irrelevant by both sides. Dr. X testified as a fact witness that at the time plaintiff suffered her injury (bone deterioration in the jaw - "ONJ") he (Dr. X) "was not aware" that plaintiff continued to take Fosamax (then being prescribed by Dr. Y). Secrest, slip op. at 5.
Then the defendant moved for summary judgment against the warning claim on causation grounds - because if Dr. X didn't know about plaintiff's Fosamax use, he couldn't have been affected by an allegedly inadequate warning. Why would a treater say anything about the risks of a drug that s/he didn't know that the plaintiff was taking?
After the motion was filed, up popped Dr. X again - this time serving as the plaintiff's expert.
To any naif out there, that means Dr. X was now on the plaintiff's payroll.
Predictably, Dr. X has changed his tune, offering utterly contradictory testimony in a second expert deposition that he actually did know about plaintiff's Fosamax use during the critical time. Specifically:
By contrast, in his [second] deposition, Dr. [X] testified that he “knewshe was on [Fosamax]” in [the critical time] and that, had [defendant] warned him about therisk of ONJ, he would have recommended that [plaintiff] stop taking Fosamax.
Neither the district court (which granted summary judgment anyway) nor the Second Circuit was having any part of Dr. X's changed testimony.
It was a "sham."
[C]onsidering Dr. [X]’s clearly contradictory testimony . . .we hold that the District Court was entitled to disregard Dr. [X]’s new testimonyrelating to his knowledge based on the “sham issue of fact” doctrine, whichprohibits a party from defeating summary judgment simply by submitting anaffidavit that contradicts the party’s previous sworn testimony. Although we have typically applied the shamissue of fact doctrine where a party submits an affidavit that contradicts theparty’s own prior statements, it may also apply when a party attempts to useevidence from an expert witness to defeat summary judgment.
Moreover, the plaintiff "ha[d] not proffered a plausible explanation" for Dr. X's testimonial gymnastics, but only argued that "credibility determinations are left to the jury." Id. at 9. The timing - after the filing of a summary judgment motion - was also extremely suspect. Id. at 10. Thus summary judgment was affirmed. That's as close as you'll see an appellate court come to calling a witness a liar without actually doing so. Schadenfreude - it feels good.
For the record, after summary judgment was granted on the warning claims in Secrest, non-warning claims (design defect) were tried to a jury and plaintiff lost again. The Second Circuit also summarily affirmed the jury verdict in a second, unpublished opinion, here.
Accutane MDL Court Dismisses 40 Cases for Plaintiffs' Failure to Meet Expert Designation Deadline
To contact us Click HERE
Not to complain or anything, but these are rough days. Wewere stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey. Skip to the third paragraph if you are still catching up via your Betamax machine. By the way, you might also want to try listening to a hot new musical group called The Beatles. Also, check out vanilla ice cream. It's an acquired taste, but pretty darn good.] When has a series killed offtwo main characters (and, arguably, the most important character, in terms ofsetting action in motion and being transformative) in the same season? The showis well written and splendidly acted, but it is, at bottom, cruel. Theresumption of Breaking Bad will actually come as a relief; sure, there’s lotsof drug dealing and murder in it, but it does not toy with our emotions nearlyso much as those arch Brits. (For an interesting mash-up, see the “BreakingAbbey” skit here.) From what we hear, the latest Downton death came aboutbecause the actor wanted to abandon the show for other acting opportunities.Mr. Stevens, we mutter a few curse words in your direction: "Daniel J.Travanti" and "David Caruso." Good day, sir!
The expiration of a charming fictional lawyer followed byonly a few days the death of a real life, regal legal eminence, Ronald Dworkin.In our first year of law school the great Edward Levi taught a class called“Elements of the Law,” which addressed the Big Questions – certainly biggerthan the Rule in Shelley’s Case or the distinction between larceny by trick andobtaining property by false pretenses. In "Elements" we read from the likes ofBentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin'sintricate analyses. How can a book with such a straightforward title, TakingRights Seriously, be encumbered with such impenetrable prose? And yet Dworkin'sinsistence on law's moral dimension was undeniably refreshing. Dworkin was the second mostcited legal scholar of the 20th Century, exceeded only by our favorite SeventhCircuit Judge, the one who launched our occasional postings on why “There’llAlways be Posner.” Dworkin ennobled our profession, even as he often puzzledit.
Meanwhile, the same issue of the Wall Street Journal with Dworkin’sobituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) becomeless social but braver. Granted, we are not sure how to define ichthyo-courage,but the story had us hooked. It also made us feel somewhat anxious. As is alltoo often the case, we find ourselves wondering how bits of news and popularculture would affect judges and jurors. It might well be that a timid perchcould benefit from a random dose of an antianxiety medication. The fish'sconsumption of the Mickey Fin might have been off-label, but we do not think anover-enthusiastic sales rep played any role in luring in that particularcustomer. Still, we couldn’t help but think that some readers would takethis fish-story (the one that did not get away) as further evidence ofcorporate perfidy and bad drug side effects. We are swimming through the watersof a double standard. The scales are weighted against corporations, which areheld to a higher standard and suspected of the worst means and motives.
Speaking of side effects, we capped off the week by seeing amovie by that name. Side Effects is the new (and, by the director's account,last) Steven Soderbergh film. The coming attractions promised yet another uglycinematic portrait of drug and device companies, as in The Constant Gardenerand Love and Other Drugs. Nevertheless, while Side Effects has a couple ofnegative references to drug marketing, it says at least as many bad thingsabout doctors and patients as about companies that sell products. ' Trustnobody' seems to be the message. Fine. Done.
When we surveyed the weekly docket, we were looking for away to rinse off all this depression and anxiety. At a minimum, we were lookingfor a case where our side did not get burnt by the usual double standard. Wefound that case in the Accutane MDL - specifically, Aranda et al. v.Hoffman-Laroche, 2013 WL 562707 (M.D. Fla. Feb. 14, 2013), where the courtended up denying the plaintiffs' tardy effort to name a general causationexpert witness and consequently granted summary judgment and dismissed 40cases.
The Aranda plaintiffs filed their multi-plaintiff action inIllinois state court, alleging that they developed inflammatory bowel disease("IBD") as a result of their use of Accutane. The case wasremoved to federal court, and then was sent to the Accutane MDL. Here is therelevant chronology:
The issue was whether plaintiffs' counsel had established"good cause" to modify the scheduling order pursuant to Fed. R. Civ.P. 16(b)(4). The judge saw no such good cause, finding that theplaintiffs "do not present any legitimate excuse for failing to meet theCourt's deadlines." 2013 WL 562707 at *2. The plaintiffs'counsel's claim that it did not receive a hard copy of the July 2012 schedulingorder was "disingenuous" in light of the plaintiffs’ telephonic presenceat the conference. Id. The court noted that the plaintiffs'counsel's failure to sign up for electronic service notifications was not avalid excuse. Id. at n. 1. Further, the CM/ECF system showedservice of a hard copy of the July 2012 scheduling order at two separate addresses. Anyway, why wouldn't counsel have made some sort of inquiry after not receivingthe order? Moreover, plaintiffs' counsel clearly received the September2012 severance order -- inasmuch as they complied with it -- and that orderspecifically referenced the earlier scheduling order.
Perhaps the most damning evidence was the plaintiffs'counsel's failure to respond to the defense counsel inquiry in December. Tomake matters worse, though the Aranda cases had been lingering for 19 months,the plaintiffs' counsel admitted they had not begun looking for an expert untilafter receiving the inquiry from defense counsel. The court found that admission"inexplicable." Id. at *3. Here is the court'sconclusion: "Their failure to do anything with respect to locatingan expert until December 14, 2012, already one month after the disclosuredeadline, is inexcusable and demonstrates an utter lack of diligence to pursuetheir claims in this case. Their delay of another month and a half afterthe letter before seeking an extension of time is similarly inexcusable. Accordingly, their motion for an extension of the expert deadlines isdenied." Id.
Without a causation expert, summary judgment was a foregoneconclusion. Those 40 cases are gone. It is as if they had crashed and arenow overturned in a ditch by the side of the road.
Not to complain or anything, but these are rough days. Wewere stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey. Skip to the third paragraph if you are still catching up via your Betamax machine. By the way, you might also want to try listening to a hot new musical group called The Beatles. Also, check out vanilla ice cream. It's an acquired taste, but pretty darn good.] When has a series killed offtwo main characters (and, arguably, the most important character, in terms ofsetting action in motion and being transformative) in the same season? The showis well written and splendidly acted, but it is, at bottom, cruel. Theresumption of Breaking Bad will actually come as a relief; sure, there’s lotsof drug dealing and murder in it, but it does not toy with our emotions nearlyso much as those arch Brits. (For an interesting mash-up, see the “BreakingAbbey” skit here.) From what we hear, the latest Downton death came aboutbecause the actor wanted to abandon the show for other acting opportunities.Mr. Stevens, we mutter a few curse words in your direction: "Daniel J.Travanti" and "David Caruso." Good day, sir!
The expiration of a charming fictional lawyer followed byonly a few days the death of a real life, regal legal eminence, Ronald Dworkin.In our first year of law school the great Edward Levi taught a class called“Elements of the Law,” which addressed the Big Questions – certainly biggerthan the Rule in Shelley’s Case or the distinction between larceny by trick andobtaining property by false pretenses. In "Elements" we read from the likes ofBentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin'sintricate analyses. How can a book with such a straightforward title, TakingRights Seriously, be encumbered with such impenetrable prose? And yet Dworkin'sinsistence on law's moral dimension was undeniably refreshing. Dworkin was the second mostcited legal scholar of the 20th Century, exceeded only by our favorite SeventhCircuit Judge, the one who launched our occasional postings on why “There’llAlways be Posner.” Dworkin ennobled our profession, even as he often puzzledit.
Meanwhile, the same issue of the Wall Street Journal with Dworkin’sobituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) becomeless social but braver. Granted, we are not sure how to define ichthyo-courage,but the story had us hooked. It also made us feel somewhat anxious. As is alltoo often the case, we find ourselves wondering how bits of news and popularculture would affect judges and jurors. It might well be that a timid perchcould benefit from a random dose of an antianxiety medication. The fish'sconsumption of the Mickey Fin might have been off-label, but we do not think anover-enthusiastic sales rep played any role in luring in that particularcustomer. Still, we couldn’t help but think that some readers would takethis fish-story (the one that did not get away) as further evidence ofcorporate perfidy and bad drug side effects. We are swimming through the watersof a double standard. The scales are weighted against corporations, which areheld to a higher standard and suspected of the worst means and motives.
Speaking of side effects, we capped off the week by seeing amovie by that name. Side Effects is the new (and, by the director's account,last) Steven Soderbergh film. The coming attractions promised yet another uglycinematic portrait of drug and device companies, as in The Constant Gardenerand Love and Other Drugs. Nevertheless, while Side Effects has a couple ofnegative references to drug marketing, it says at least as many bad thingsabout doctors and patients as about companies that sell products. ' Trustnobody' seems to be the message. Fine. Done.
When we surveyed the weekly docket, we were looking for away to rinse off all this depression and anxiety. At a minimum, we were lookingfor a case where our side did not get burnt by the usual double standard. Wefound that case in the Accutane MDL - specifically, Aranda et al. v.Hoffman-Laroche, 2013 WL 562707 (M.D. Fla. Feb. 14, 2013), where the courtended up denying the plaintiffs' tardy effort to name a general causationexpert witness and consequently granted summary judgment and dismissed 40cases.
The Aranda plaintiffs filed their multi-plaintiff action inIllinois state court, alleging that they developed inflammatory bowel disease("IBD") as a result of their use of Accutane. The case wasremoved to federal court, and then was sent to the Accutane MDL. Here is therelevant chronology:
- Earlier in the MDL, the court had struck the plaintiffs' IBD general causation expert.
- The magistrate judge issued a scheduling order for all new cases in the MDL, requiring plaintiffs to name general causation experts four months after transfer to the MDL. The order made clear that extensions “should not be anticipated.”
- In July 2012 the magistrate judge held a status conference and set a November date for plaintiffs to disclose their experts. Plaintiffs' counsel attended telephonically. The magistrate judge issued a scheduling order, though the plaintiffs’ counsel later claimed they never received a hard copy of the order.
- In September 2012, the court severed the Aranda cases and forced the filing of separate complaints. The severance order referenced the July scheduling order.
- November 2012 came and went without any designation by the plaintiffs of a general causation expert.
- In December 2012, the defense counsel sent a letter to plaintiffs’ counsel asking why they had not yet disclosed their experts. There was no response.
- The defendant filed a summary judgment motion in January 2013. On that last day of that month, the court issued an order to show cause directing plaintiffs' counsel to file a response to the summary judgment motion.
- Only after that did plaintiffs seek an extension of time to name their expert.
The issue was whether plaintiffs' counsel had established"good cause" to modify the scheduling order pursuant to Fed. R. Civ.P. 16(b)(4). The judge saw no such good cause, finding that theplaintiffs "do not present any legitimate excuse for failing to meet theCourt's deadlines." 2013 WL 562707 at *2. The plaintiffs'counsel's claim that it did not receive a hard copy of the July 2012 schedulingorder was "disingenuous" in light of the plaintiffs’ telephonic presenceat the conference. Id. The court noted that the plaintiffs'counsel's failure to sign up for electronic service notifications was not avalid excuse. Id. at n. 1. Further, the CM/ECF system showedservice of a hard copy of the July 2012 scheduling order at two separate addresses. Anyway, why wouldn't counsel have made some sort of inquiry after not receivingthe order? Moreover, plaintiffs' counsel clearly received the September2012 severance order -- inasmuch as they complied with it -- and that orderspecifically referenced the earlier scheduling order.
Perhaps the most damning evidence was the plaintiffs'counsel's failure to respond to the defense counsel inquiry in December. Tomake matters worse, though the Aranda cases had been lingering for 19 months,the plaintiffs' counsel admitted they had not begun looking for an expert untilafter receiving the inquiry from defense counsel. The court found that admission"inexplicable." Id. at *3. Here is the court'sconclusion: "Their failure to do anything with respect to locatingan expert until December 14, 2012, already one month after the disclosuredeadline, is inexcusable and demonstrates an utter lack of diligence to pursuetheir claims in this case. Their delay of another month and a half afterthe letter before seeking an extension of time is similarly inexcusable. Accordingly, their motion for an extension of the expert deadlines isdenied." Id.
Without a causation expert, summary judgment was a foregoneconclusion. Those 40 cases are gone. It is as if they had crashed and arenow overturned in a ditch by the side of the road.
22 Şubat 2013 Cuma
Accutane MDL Court Dismisses 40 Cases for Plaintiffs' Failure to Meet Expert Designation Deadline
To contact us Click HERE
Not to complain or anything, but these are rough days. Wewere stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey. Skip to the third paragraph if you are still catching up via your Betamax machine. By the way, you might also want to try listening to a hot new musical group called The Beatles. Also, check out vanilla ice cream. It's an acquired taste, but pretty darn good.] When has a series killed offtwo main characters (and, arguably, the most important character, in terms ofsetting action in motion and being transformative) in the same season? The showis well written and splendidly acted, but it is, at bottom, cruel. Theresumption of Breaking Bad will actually come as a relief; sure, there’s lotsof drug dealing and murder in it, but it does not toy with our emotions nearlyso much as those arch Brits. (For an interesting mash-up, see the “BreakingAbbey” skit here.) From what we hear, the latest Downton death came aboutbecause the actor wanted to abandon the show for other acting opportunities.Mr. Stevens, we mutter a few curse words in your direction: "Daniel J.Travanti" and "David Caruso." Good day, sir!
The expiration of a charming fictional lawyer followed byonly a few days the death of a real life, regal legal eminence, Ronald Dworkin.In our first year of law school the great Edward Levi taught a class called“Elements of the Law,” which addressed the Big Questions – certainly biggerthan the Rule in Shelley’s Case or the distinction between larceny by trick andobtaining property by false pretenses. In "Elements" we read from the likes ofBentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin'sintricate analyses. How can a book with such a straightforward title, TakingRights Seriously, be encumbered with such impenetrable prose? And yet Dworkin'sinsistence on law's moral dimension was undeniably refreshing. Dworkin was the second mostcited legal scholar of the 20th Century, exceeded only by our favorite SeventhCircuit Judge, the one who launched our occasional postings on why “There’llAlways be Posner.” Dworkin ennobled our profession, even as he often puzzledit.
Meanwhile, the same issue of the Wall Street Journal with Dworkin’sobituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) becomeless social but braver. Granted, we are not sure how to define ichthyo-courage,but the story had us hooked. It also made us feel somewhat anxious. As is alltoo often the case, we find ourselves wondering how bits of news and popularculture would affect judges and jurors. It might well be that a timid perchcould benefit from a random dose of an antianxiety medication. The fish'sconsumption of the Mickey Fin might have been off-label, but we do not think anover-enthusiastic sales rep played any role in luring in that particularcustomer. Still, we couldn’t help but think that some readers would takethis fish-story (the one that did not get away) as further evidence ofcorporate perfidy and bad drug side effects. We are swimming through the watersof a double standard. The scales are weighted against corporations, which areheld to a higher standard and suspected of the worst means and motives.
Speaking of side effects, we capped off the week by seeing amovie by that name. Side Effects is the new (and, by the director's account,last) Steven Soderbergh film. The coming attractions promised yet another uglycinematic portrait of drug and device companies, as in The Constant Gardenerand Love and Other Drugs. Nevertheless, while Side Effects has a couple ofnegative references to drug marketing, it says at least as many bad thingsabout doctors and patients as about companies that sell products. ' Trustnobody' seems to be the message. Fine. Done.
When we surveyed the weekly docket, we were looking for away to rinse off all this depression and anxiety. At a minimum, we were lookingfor a case where our side did not get burnt by the usual double standard. Wefound that case in the Accutane MDL - specifically, Aranda et al. v.Hoffman-Laroche, 2013 WL 562707 (M.D. Fla. Feb. 14, 2013), where the courtended up denying the plaintiffs' tardy effort to name a general causationexpert witness and consequently granted summary judgment and dismissed 40cases.
The Aranda plaintiffs filed their multi-plaintiff action inIllinois state court, alleging that they developed inflammatory bowel disease("IBD") as a result of their use of Accutane. The case wasremoved to federal court, and then was sent to the Accutane MDL. Here is therelevant chronology:
The issue was whether plaintiffs' counsel had established"good cause" to modify the scheduling order pursuant to Fed. R. Civ.P. 16(b)(4). The judge saw no such good cause, finding that theplaintiffs "do not present any legitimate excuse for failing to meet theCourt's deadlines." 2013 WL 562707 at *2. The plaintiffs'counsel's claim that it did not receive a hard copy of the July 2012 schedulingorder was "disingenuous" in light of the plaintiffs’ telephonic presenceat the conference. Id. The court noted that the plaintiffs'counsel's failure to sign up for electronic service notifications was not avalid excuse. Id. at n. 1. Further, the CM/ECF system showedservice of a hard copy of the July 2012 scheduling order at two separate addresses. Anyway, why wouldn't counsel have made some sort of inquiry after not receivingthe order? Moreover, plaintiffs' counsel clearly received the September2012 severance order -- inasmuch as they complied with it -- and that orderspecifically referenced the earlier scheduling order.
Perhaps the most damning evidence was the plaintiffs'counsel's failure to respond to the defense counsel inquiry in December. Tomake matters worse, though the Aranda cases had been lingering for 19 months,the plaintiffs' counsel admitted they had not begun looking for an expert untilafter receiving the inquiry from defense counsel. The court found that admission"inexplicable." Id. at *3. Here is the court'sconclusion: "Their failure to do anything with respect to locatingan expert until December 14, 2012, already one month after the disclosuredeadline, is inexcusable and demonstrates an utter lack of diligence to pursuetheir claims in this case. Their delay of another month and a half afterthe letter before seeking an extension of time is similarly inexcusable. Accordingly, their motion for an extension of the expert deadlines isdenied." Id.
Without a causation expert, summary judgment was a foregoneconclusion. Those 40 cases are gone. It is as if they had crashed and arenow overturned in a ditch by the side of the road.
Not to complain or anything, but these are rough days. Wewere stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey. Skip to the third paragraph if you are still catching up via your Betamax machine. By the way, you might also want to try listening to a hot new musical group called The Beatles. Also, check out vanilla ice cream. It's an acquired taste, but pretty darn good.] When has a series killed offtwo main characters (and, arguably, the most important character, in terms ofsetting action in motion and being transformative) in the same season? The showis well written and splendidly acted, but it is, at bottom, cruel. Theresumption of Breaking Bad will actually come as a relief; sure, there’s lotsof drug dealing and murder in it, but it does not toy with our emotions nearlyso much as those arch Brits. (For an interesting mash-up, see the “BreakingAbbey” skit here.) From what we hear, the latest Downton death came aboutbecause the actor wanted to abandon the show for other acting opportunities.Mr. Stevens, we mutter a few curse words in your direction: "Daniel J.Travanti" and "David Caruso." Good day, sir!
The expiration of a charming fictional lawyer followed byonly a few days the death of a real life, regal legal eminence, Ronald Dworkin.In our first year of law school the great Edward Levi taught a class called“Elements of the Law,” which addressed the Big Questions – certainly biggerthan the Rule in Shelley’s Case or the distinction between larceny by trick andobtaining property by false pretenses. In "Elements" we read from the likes ofBentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin'sintricate analyses. How can a book with such a straightforward title, TakingRights Seriously, be encumbered with such impenetrable prose? And yet Dworkin'sinsistence on law's moral dimension was undeniably refreshing. Dworkin was the second mostcited legal scholar of the 20th Century, exceeded only by our favorite SeventhCircuit Judge, the one who launched our occasional postings on why “There’llAlways be Posner.” Dworkin ennobled our profession, even as he often puzzledit.
Meanwhile, the same issue of the Wall Street Journal with Dworkin’sobituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) becomeless social but braver. Granted, we are not sure how to define ichthyo-courage,but the story had us hooked. It also made us feel somewhat anxious. As is alltoo often the case, we find ourselves wondering how bits of news and popularculture would affect judges and jurors. It might well be that a timid perchcould benefit from a random dose of an antianxiety medication. The fish'sconsumption of the Mickey Fin might have been off-label, but we do not think anover-enthusiastic sales rep played any role in luring in that particularcustomer. Still, we couldn’t help but think that some readers would takethis fish-story (the one that did not get away) as further evidence ofcorporate perfidy and bad drug side effects. We are swimming through the watersof a double standard. The scales are weighted against corporations, which areheld to a higher standard and suspected of the worst means and motives.
Speaking of side effects, we capped off the week by seeing amovie by that name. Side Effects is the new (and, by the director's account,last) Steven Soderbergh film. The coming attractions promised yet another uglycinematic portrait of drug and device companies, as in The Constant Gardenerand Love and Other Drugs. Nevertheless, while Side Effects has a couple ofnegative references to drug marketing, it says at least as many bad thingsabout doctors and patients as about companies that sell products. ' Trustnobody' seems to be the message. Fine. Done.
When we surveyed the weekly docket, we were looking for away to rinse off all this depression and anxiety. At a minimum, we were lookingfor a case where our side did not get burnt by the usual double standard. Wefound that case in the Accutane MDL - specifically, Aranda et al. v.Hoffman-Laroche, 2013 WL 562707 (M.D. Fla. Feb. 14, 2013), where the courtended up denying the plaintiffs' tardy effort to name a general causationexpert witness and consequently granted summary judgment and dismissed 40cases.
The Aranda plaintiffs filed their multi-plaintiff action inIllinois state court, alleging that they developed inflammatory bowel disease("IBD") as a result of their use of Accutane. The case wasremoved to federal court, and then was sent to the Accutane MDL. Here is therelevant chronology:
- Earlier in the MDL, the court had struck the plaintiffs' IBD general causation expert.
- The magistrate judge issued a scheduling order for all new cases in the MDL, requiring plaintiffs to name general causation experts four months after transfer to the MDL. The order made clear that extensions “should not be anticipated.”
- In July 2012 the magistrate judge held a status conference and set a November date for plaintiffs to disclose their experts. Plaintiffs' counsel attended telephonically. The magistrate judge issued a scheduling order, though the plaintiffs’ counsel later claimed they never received a hard copy of the order.
- In September 2012, the court severed the Aranda cases and forced the filing of separate complaints. The severance order referenced the July scheduling order.
- November 2012 came and went without any designation by the plaintiffs of a general causation expert.
- In December 2012, the defense counsel sent a letter to plaintiffs’ counsel asking why they had not yet disclosed their experts. There was no response.
- The defendant filed a summary judgment motion in January 2013. On that last day of that month, the court issued an order to show cause directing plaintiffs' counsel to file a response to the summary judgment motion.
- Only after that did plaintiffs seek an extension of time to name their expert.
The issue was whether plaintiffs' counsel had established"good cause" to modify the scheduling order pursuant to Fed. R. Civ.P. 16(b)(4). The judge saw no such good cause, finding that theplaintiffs "do not present any legitimate excuse for failing to meet theCourt's deadlines." 2013 WL 562707 at *2. The plaintiffs'counsel's claim that it did not receive a hard copy of the July 2012 schedulingorder was "disingenuous" in light of the plaintiffs’ telephonic presenceat the conference. Id. The court noted that the plaintiffs'counsel's failure to sign up for electronic service notifications was not avalid excuse. Id. at n. 1. Further, the CM/ECF system showedservice of a hard copy of the July 2012 scheduling order at two separate addresses. Anyway, why wouldn't counsel have made some sort of inquiry after not receivingthe order? Moreover, plaintiffs' counsel clearly received the September2012 severance order -- inasmuch as they complied with it -- and that orderspecifically referenced the earlier scheduling order.
Perhaps the most damning evidence was the plaintiffs'counsel's failure to respond to the defense counsel inquiry in December. Tomake matters worse, though the Aranda cases had been lingering for 19 months,the plaintiffs' counsel admitted they had not begun looking for an expert untilafter receiving the inquiry from defense counsel. The court found that admission"inexplicable." Id. at *3. Here is the court'sconclusion: "Their failure to do anything with respect to locatingan expert until December 14, 2012, already one month after the disclosuredeadline, is inexcusable and demonstrates an utter lack of diligence to pursuetheir claims in this case. Their delay of another month and a half afterthe letter before seeking an extension of time is similarly inexcusable. Accordingly, their motion for an extension of the expert deadlines isdenied." Id.
Without a causation expert, summary judgment was a foregoneconclusion. Those 40 cases are gone. It is as if they had crashed and arenow overturned in a ditch by the side of the road.
A One-Two Punch in the Aredia/Zometa Litigation
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Here's another quasi-guest post from our quasi-regular blogger - Reed Smith's Melissa Wojtylak. It's her post, I'm just the piano player.
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Novartis scored a double victory in the Northern Districtof California last week, when the court granted a Daubert motion to preclude Plaintiff’s experts’ specific causationtestimony, then granted summary judgment on the basis that without thattestimony, Plaintiff couldn’t prove her case. The Plaintiff in Messick had receivedtherapy with the bisphosphonate drugs Aredia or Zometa for approximately twoyears, and alleged that she developed osteonecrosis of the jaw (“ONJ”)approximately a year and four months after stopping therapy. See Messick v. Novartis Pharmaceuticals Corp., No. 3:12-cv-00693-SI, slip. op. (N.D. Cal. Feb. 15, 2013). (As an aside, duringthe time in which she was on Aredia and/or Zometa therapy, Plaintiff also had alitany of dental maladies – unrelated to her therapy - that would make even themost lax flosser repent of their ways.)
The court first looked at Plaintiff’s oral andmaxillofacial surgery expert, Dr. Jackson, who opined that Ms. Messick’sAredia/Zometa use was the cause of her ONJ. While the court found that that Dr. Jackson had pointed to reliableevidence to support general causation, it found that his evidence on specificcausation was not reliable. Dr. Jacksonpurported to rely on a pathology analysis of a fragment of bone that had beenremoved from Ms. Messick’s jaw in November 2008, claiming that this analysisdemonstrated that her ONJ was caused by her Aredia and Zometa use. Opinion, p. 7. Here’s the problem: the fragment was three years old when Dr.Jackson analyzed it, and in that three years, the fragment had merely beenstored “in a plastic container,” and not preserved in any way. Opinion, p. 6. (As a certain teenage niece might say, “Um, ewww.”) Notsurprisingly, even Dr. Jackson had to admit that this sort of testing was notscientifically reliable. Opinion, p.7.
Dr. Jackson also purportedto rely on a differential diagnosis to support his conclusion that Ms.Messick’s ONJ was caused by the drugs. The Court was not persuaded, noting that while Dr. Jackson had been ableto rule out three conditions that could have caused this patient to developONJ, he also identified five other risk factors that Plaintiff had fordeveloping ONJ. The support for theso-called differential diagnosis boiled down to Dr. Jackson’s assertion that“it just doesn’t happen” that someone with Ms. Messick’s risk factors woulddevelop ONJ without also being exposed to bisphosphonates. Opinion, p. 7. As the court pointed out, Dr. Jackson neverexplained the scientific basis for his conclusion. Opinion, p. 7. After the “it just doesn’t happen” comment,it seems pretty clear to us that there wasn’t one – the doctor’s “differentialdiagnosis” was nothing more than a litigation-driven guess. Ultimately, Dr. Jackson admitted that in apatient with multiple risk factors, there was no scientifically reliable wayfor him to determine which one had caused the injury. Opinion, p. 7. Because his specific causation opinion wasnot based on reliable methodology, it was out. Opinion, pp. 7-8. We liked thefact that at this point, the court cited to a 2012 opinion from the EasternDistrict of Washington, in which that court also excluded Dr. Jackson’scausation testimony. Opinion, p. 8.
But the court wasn’t finished with Dr. Jackson. It next found that Dr. Jackson’s testimony alsodid not meet Rule 702’s relevance requirement, as under California law, Dr.Jackson’s testimony did not demonstrate that bisphosphonate therapy had morelikely than not caused Ms. Messick’s injury. Opinion, p. 8. The best Dr.Jackson could do was to assert that a patient “like” Ms. Messick would not havegotten ONJ without bisphosphonate exposure – he never said that it had actuallycaused Ms. Messick’s ONJ. Opinion, p.8. The court pointed out again that Dr.Jackson had specifically stated that he could not say this. Id.
After disposing of Dr. Jackson, the court moved on to theopinions of two of Plaintiff’s treaters, Drs. Silverman and Lam, and precluded themon the basis that neither of them had any reliable scientific basis forconcluding that Aredia and Zometa had caused Ms. Messick’s ONJ. Dr. Silverman performed no differentialdiagnosis (not even the lame-o Jackson variety), no research and no literaturereview; he merely testified that he “assumed” her ONJ was caused by thebisphosphonates, because “[t]here was a possibility of an association.” Opinion, p. 9. Dr. Lam brought even less to the table,testifying that it was his “impression” that the ONJ wasbisphosphonate-related, but that he relied upon Dr. Silverman for a definitivediagnosis. Opinion, p. 9. The court rejected this Pete and Repeat act, holding
Dr. Silverman’s “assumption” and Dr. Lam’s“impression” are simply inadequate to satisfy the Ninth Circuit’s requirementunder Rule 702, that where evidence of pre-litigation research or researchsubject to peer review is unavailable, the expert must point to an objectivesource, such as a treatise, policy statement of a professional association, ora published article in a reputable scientific journal.
Opinion, p. 9. Thecourt also noted that the doctors’ “impression” and “assumption” couldn’t getthem past the Rule 702 relevance requirement either. Opinion, p. 10.
After making short work of Drs. Jackson, Silverman and Lam,the court found that without their testimony, there was “a complete absence ofaffirmative evidence in the record that Aredia and Zometa more likely than notcaused Ms. Messick’s ONJ.” Opinion, p.11. Because this proof of specificcausation was a required element on each of the Plaintiff’s claims, the courtthen entered summary judgment in Novartis’ favor.
Congratulations to Frank Leone and Robert Johnson ofHollingsworth LLP and Jim Colopy of Farella Bruen.
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Novartis scored a double victory in the Northern Districtof California last week, when the court granted a Daubert motion to preclude Plaintiff’s experts’ specific causationtestimony, then granted summary judgment on the basis that without thattestimony, Plaintiff couldn’t prove her case. The Plaintiff in Messick had receivedtherapy with the bisphosphonate drugs Aredia or Zometa for approximately twoyears, and alleged that she developed osteonecrosis of the jaw (“ONJ”)approximately a year and four months after stopping therapy. See Messick v. Novartis Pharmaceuticals Corp., No. 3:12-cv-00693-SI, slip. op. (N.D. Cal. Feb. 15, 2013). (As an aside, duringthe time in which she was on Aredia and/or Zometa therapy, Plaintiff also had alitany of dental maladies – unrelated to her therapy - that would make even themost lax flosser repent of their ways.)
The court first looked at Plaintiff’s oral andmaxillofacial surgery expert, Dr. Jackson, who opined that Ms. Messick’sAredia/Zometa use was the cause of her ONJ. While the court found that that Dr. Jackson had pointed to reliableevidence to support general causation, it found that his evidence on specificcausation was not reliable. Dr. Jacksonpurported to rely on a pathology analysis of a fragment of bone that had beenremoved from Ms. Messick’s jaw in November 2008, claiming that this analysisdemonstrated that her ONJ was caused by her Aredia and Zometa use. Opinion, p. 7. Here’s the problem: the fragment was three years old when Dr.Jackson analyzed it, and in that three years, the fragment had merely beenstored “in a plastic container,” and not preserved in any way. Opinion, p. 6. (As a certain teenage niece might say, “Um, ewww.”) Notsurprisingly, even Dr. Jackson had to admit that this sort of testing was notscientifically reliable. Opinion, p.7.
Dr. Jackson also purportedto rely on a differential diagnosis to support his conclusion that Ms.Messick’s ONJ was caused by the drugs. The Court was not persuaded, noting that while Dr. Jackson had been ableto rule out three conditions that could have caused this patient to developONJ, he also identified five other risk factors that Plaintiff had fordeveloping ONJ. The support for theso-called differential diagnosis boiled down to Dr. Jackson’s assertion that“it just doesn’t happen” that someone with Ms. Messick’s risk factors woulddevelop ONJ without also being exposed to bisphosphonates. Opinion, p. 7. As the court pointed out, Dr. Jackson neverexplained the scientific basis for his conclusion. Opinion, p. 7. After the “it just doesn’t happen” comment,it seems pretty clear to us that there wasn’t one – the doctor’s “differentialdiagnosis” was nothing more than a litigation-driven guess. Ultimately, Dr. Jackson admitted that in apatient with multiple risk factors, there was no scientifically reliable wayfor him to determine which one had caused the injury. Opinion, p. 7. Because his specific causation opinion wasnot based on reliable methodology, it was out. Opinion, pp. 7-8. We liked thefact that at this point, the court cited to a 2012 opinion from the EasternDistrict of Washington, in which that court also excluded Dr. Jackson’scausation testimony. Opinion, p. 8.
But the court wasn’t finished with Dr. Jackson. It next found that Dr. Jackson’s testimony alsodid not meet Rule 702’s relevance requirement, as under California law, Dr.Jackson’s testimony did not demonstrate that bisphosphonate therapy had morelikely than not caused Ms. Messick’s injury. Opinion, p. 8. The best Dr.Jackson could do was to assert that a patient “like” Ms. Messick would not havegotten ONJ without bisphosphonate exposure – he never said that it had actuallycaused Ms. Messick’s ONJ. Opinion, p.8. The court pointed out again that Dr.Jackson had specifically stated that he could not say this. Id.
After disposing of Dr. Jackson, the court moved on to theopinions of two of Plaintiff’s treaters, Drs. Silverman and Lam, and precluded themon the basis that neither of them had any reliable scientific basis forconcluding that Aredia and Zometa had caused Ms. Messick’s ONJ. Dr. Silverman performed no differentialdiagnosis (not even the lame-o Jackson variety), no research and no literaturereview; he merely testified that he “assumed” her ONJ was caused by thebisphosphonates, because “[t]here was a possibility of an association.” Opinion, p. 9. Dr. Lam brought even less to the table,testifying that it was his “impression” that the ONJ wasbisphosphonate-related, but that he relied upon Dr. Silverman for a definitivediagnosis. Opinion, p. 9. The court rejected this Pete and Repeat act, holding
Dr. Silverman’s “assumption” and Dr. Lam’s“impression” are simply inadequate to satisfy the Ninth Circuit’s requirementunder Rule 702, that where evidence of pre-litigation research or researchsubject to peer review is unavailable, the expert must point to an objectivesource, such as a treatise, policy statement of a professional association, ora published article in a reputable scientific journal.
Opinion, p. 9. Thecourt also noted that the doctors’ “impression” and “assumption” couldn’t getthem past the Rule 702 relevance requirement either. Opinion, p. 10.
After making short work of Drs. Jackson, Silverman and Lam,the court found that without their testimony, there was “a complete absence ofaffirmative evidence in the record that Aredia and Zometa more likely than notcaused Ms. Messick’s ONJ.” Opinion, p.11. Because this proof of specificcausation was a required element on each of the Plaintiff’s claims, the courtthen entered summary judgment in Novartis’ favor.
Congratulations to Frank Leone and Robert Johnson ofHollingsworth LLP and Jim Colopy of Farella Bruen.
Preemption in the Land of 10,000 Medical Devices
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For some reason, just as pharmaceuticalmanufacturing is concentrated in New Jersey and Southeastern Pennsylvania, andjust as there are an abnormal number of Class II implant manufacturers inIndiana, the epicenter of American pre-market approved medical devicemanufacturing seems to be in Minnesota.
Similarly, preemption is at the epicenter of medicaldevice product liability litigation involving PMA devices.
Since plaintiffs are able to avoid federal courtthrough the simple stratagem of suing defendants (all defendants, not justmedical device manufacturers) in their “home” courts, we have been wonderinghow PMA preemption would fare in Minnesota state court. Minnesota already has a relatively expansiveconsumer protection statute and (until recently) an extremely long (six-year)statute of limitations for personal injury cases. If there were also an indication that Minnesotacourts would view PMA preemption in a pro-plaintiff fashion, we could seePhiladelphia-style influx of litigation tourism.
Fortunately that doesn’t appear to be in theoffing. A couple of years ago, Medtronicscored big with In re Medtronic Sprint Fidelis Leads State Court Litigation,2009 WL 3417867 (Minn. Dist. Hennepin Co. Oct. 20, 2009), which as we discussedat the time, adopted just about all the pro-preemption holdings in In re MedtronicSprint Fidelis Leads Products Liability Litigation, 592 F. Supp.2d 1147 (D.Minn. 2009), aff’d, 623 F.3d 1200 (8th Cir. Oct 15, 2010). There were a lot of good holdings, which wegloated over here.
Still, Sprint Fidelis was just acounty-level trial court. The SprintFidelis plaintiffs chose not to take their chances on appeal. One bad decision from the Court of Appeals ofMinnesota could wipe everything out.
Or, conversely, one good appellate decision couldcement everything in place and send the litigation tourists scurrying elsewhere.
Fortunately, the latter happened the otherday. See Lamere v. St. JudeMedical, Inc., ___ N.W.2d ___, 2013 WL 599178, slip op. (Minn. App. Feb 19, 2013). Lamereinvolved a Class III PMA approved mechanical heart valve, and the courtaffirmed summary judgment on the basis of preemption. Not even the Public Citizen Litigation Group(probably the other side’s biggest guns on preemption) could sway the result inLamere.
The valve in Lamere was implanted in1988. Nearly 20 years later therecipient died, allegedly as a result of a valve failure. The plaintiff – like the decedent aCalifornia resident – chose to bring suit in Minnesota state court. Thus Lamere was a blatant example oflitigation tourism.
The defendant manufacturer received summary judgment,on both preemption and (ironically) statute of limitations grounds, and theplaintiff appealed. The Court of Appealsaffirmed. We won’t spend much time onthe statute of limitations, which the court applied (to a wrongful death claim)in a manner similar to a statute of repose. Based on what appears to us to be strong Minnesota precedent, the courtconcluded that the six-year statute runs from the time of the defendant’s “actor omission,” which in this instance was “either . . . the date themedical device was manufactured or the date it was implanted.” 2013 WL 599178, at *4. Since the implant had lasted for over 19years, the plaintiff was out of luck. Id. The court refused to expand a “latentdisease” (read, asbestos) exception to include other products that simplylasted a long time before allegedly malfunctioning, id. at *4-5, andrefused to apply the discovery rule to wrongful death cases. Id. at *5.
Now on to why we’re posting about Lamere. The court held, as an alternative, ground,that summary judgment could be affirmed on the basis of PMA preemption. Who knows? If it weren’t for all of Public Citizen’s caterwauling about preemption,the court may have left sleeping dogs lie with the statute of limitations.
As usual in PMA preemption cases, the argument camedown to the court’s view of the vexing and ill-defined concept of “parallel”violation claims under (1) the throw-away dictumin Riegel concerning a waived claim and (2) vague claims that the Court tookless-than-seriously in Lohr. SeeLamere, 2013 WL 599178, at *6 (dealing with these cases’ “parallel”violation language in a paragraph).
The plaintiff in Lamere took themanufacturing defect/good manufacturing practice (“GMP”) approach to preemption, id.,arguing that, even though the valve operated properly for almost twenty years,it was nonetheless manufactured in violation of … something…. Plaintiff never was very clear; even thePublic Citizen folks weren’t able to come up with a viable theory.
So they argued that they didn’t have to − any oldGMP was enough. The two GMPs that theplaintiff settled on were:
Each manufacturer shall develop, conduct, control, andmonitor production processes toensure that a device conforms to its specifications. Where deviations from device specificationscould occur as a result of the manufacturing process, the manufacturer shall establish and maintain processcontrol procedures that describe any process controls necessary toensure conformance to specifications.
21 C.F.R. § 820.70(a) (emphasis added).
Each manufacturer shallestablish and maintain procedures to control product that does not conform tospecified requirements. Theprocedures shall address theidentification, documentation, evaluation, segregation, and disposition ofnonconforming product. The evaluation ofnonconformance shall include adetermination of the need for an investigation and notification of thepersons or organizations responsible for the nonconformance.
21 C.F.R. § 820.90(a) (emphasis added) (both quoted at 2013WL 599178, at *7).
As the emphasized language makes quite clear, theseGMPs are of the “umbrella” variety. Theytell a manufacturer what topics to pay attention to, but provide absolutely nospecifics about what the manufacturer is supposed to do in order tocomply. They are, in short, the classicvague regulations that leave it to the manufacturer to decide how to comply. That's exactly the opposite of how state law ordinarily works, with violation claims replacing the "reasonable man" default standard only if the violated enactment provides a specific substitute (like "speed limit 55" instead of a "reasonably safe speed under the circumstances"). The Court of Appeals went through the “split” amongthe federal circuits about whether GMPs had to be “specific” in order tosupport a viable “parallel” claim. Lamere,2013 WL 599178, at *6. Ultimately, thecourt came down on the side of specificity – at least that a GMP had to do morethan tell a manufacturer that it needed to do something about this or that:
Without concluding that a GMP may never form the basisof a valid parallel claim, we hold that in this case [plaintiff] failed tosufficiently plead a parallel claim based on the specific GMPs she cites. We observe that those circuit court casesapproving of the use of GMPs as a basis for a parallel claim require that the plaintiff plead withgreater specificity.
2013 WL 599178, at *7 (emphasis added). For this proposition the court cited Bassv. Stryker Corp., 669 F.3d 501, 511-12 (5th Cir. 2012). Bass isn’t exactly the greatestdecision we’ve ever seen on specificity (the complaint survived), although Bassdid involve a relatively detailed complaint, as we discussed here. So Lamere had to be prettypoorly pleaded to fail that test.
Not only that, but these plaintiffs weren’t allthat sympathetic, even with Public Citizen on the case. Lamere was decided on summary judgment(remember, if you want to win a preemption motion, your odds are considerably betteron summary judgment – it’s just a lot more expensive). Thus, Lamere wasn’t a case where theplaintiffs were being shown the door without benefit of discovery. Rather, they “had ample opportunity to discoverwhether any GMPs had been violated” and hadn’t been able to come up withanything (not surprising, given that the valve lasted for almost twentyyears). Plaintiffs have to do better thanthat:
[T]o survive a motion for summary judgment followingdiscovery, [plaintiff] is required to do more than merely cite two GMPs withoutexplaining how the violation of these GMPs occurred or how such a violation wascausally related to the failure of the mechanical heart valve.
2013 WL 599178, at *7.
But Public Citizen was persistent, if notpersuasive. Plaintiff kicked “parallel”violations to the curb and attempted to make a virtue of their inability tofind anything. In a frontal assault on Riegelplaintiff argued that precisely because there wasn’t any federal regulation“specifically” on point, their claims couldn’t be preempted. Id. at *7. Talk about chutzpah – that’s precisely what Riegelwas all about.
The Court of Appeals quite rightly rejected thisclaim as incompatible with Reigel’s holding that the PMA process, in andof itself, provides whatever “specificity” is necessary under the statute’s expresspreemption clause:
[Plaintiff] argues that a general state-law duty not todistribute products with manufacturing flaws does not impose any requirementson [defendant] that are different from or in addition to federal requirementsthat are specifically applicable. Butthis argument ignores Riegel,which concluded that “[g]eneral tort duties of care ... ‘directly regulate’ thedevice itself, including its design.” Weconclude that imposing the state’s strict-liability rules on a PMA device wouldimpose a general duty that would directly regulate the device itself, whichwould be a regulation that is different from the federal regulations applicableto the PMA device.
2013 WL 599178, at *8 (Riegel citationomitted) (emphasis added). In other words, PMA preemptionactually means something. Getting hurtisn’t carte blanche to sue. “PMA process does not guarantee that everydevice is safe.” Id.
So much for medical device litigation tourism inMinnesota.
Similarly, preemption is at the epicenter of medicaldevice product liability litigation involving PMA devices.
Since plaintiffs are able to avoid federal courtthrough the simple stratagem of suing defendants (all defendants, not justmedical device manufacturers) in their “home” courts, we have been wonderinghow PMA preemption would fare in Minnesota state court. Minnesota already has a relatively expansiveconsumer protection statute and (until recently) an extremely long (six-year)statute of limitations for personal injury cases. If there were also an indication that Minnesotacourts would view PMA preemption in a pro-plaintiff fashion, we could seePhiladelphia-style influx of litigation tourism.
Fortunately that doesn’t appear to be in theoffing. A couple of years ago, Medtronicscored big with In re Medtronic Sprint Fidelis Leads State Court Litigation,2009 WL 3417867 (Minn. Dist. Hennepin Co. Oct. 20, 2009), which as we discussedat the time, adopted just about all the pro-preemption holdings in In re MedtronicSprint Fidelis Leads Products Liability Litigation, 592 F. Supp.2d 1147 (D.Minn. 2009), aff’d, 623 F.3d 1200 (8th Cir. Oct 15, 2010). There were a lot of good holdings, which wegloated over here.
Still, Sprint Fidelis was just acounty-level trial court. The SprintFidelis plaintiffs chose not to take their chances on appeal. One bad decision from the Court of Appeals ofMinnesota could wipe everything out.
Or, conversely, one good appellate decision couldcement everything in place and send the litigation tourists scurrying elsewhere.
Fortunately, the latter happened the otherday. See Lamere v. St. JudeMedical, Inc., ___ N.W.2d ___, 2013 WL 599178, slip op. (Minn. App. Feb 19, 2013). Lamereinvolved a Class III PMA approved mechanical heart valve, and the courtaffirmed summary judgment on the basis of preemption. Not even the Public Citizen Litigation Group(probably the other side’s biggest guns on preemption) could sway the result inLamere.
The valve in Lamere was implanted in1988. Nearly 20 years later therecipient died, allegedly as a result of a valve failure. The plaintiff – like the decedent aCalifornia resident – chose to bring suit in Minnesota state court. Thus Lamere was a blatant example oflitigation tourism.
The defendant manufacturer received summary judgment,on both preemption and (ironically) statute of limitations grounds, and theplaintiff appealed. The Court of Appealsaffirmed. We won’t spend much time onthe statute of limitations, which the court applied (to a wrongful death claim)in a manner similar to a statute of repose. Based on what appears to us to be strong Minnesota precedent, the courtconcluded that the six-year statute runs from the time of the defendant’s “actor omission,” which in this instance was “either . . . the date themedical device was manufactured or the date it was implanted.” 2013 WL 599178, at *4. Since the implant had lasted for over 19years, the plaintiff was out of luck. Id. The court refused to expand a “latentdisease” (read, asbestos) exception to include other products that simplylasted a long time before allegedly malfunctioning, id. at *4-5, andrefused to apply the discovery rule to wrongful death cases. Id. at *5.
Now on to why we’re posting about Lamere. The court held, as an alternative, ground,that summary judgment could be affirmed on the basis of PMA preemption. Who knows? If it weren’t for all of Public Citizen’s caterwauling about preemption,the court may have left sleeping dogs lie with the statute of limitations.
As usual in PMA preemption cases, the argument camedown to the court’s view of the vexing and ill-defined concept of “parallel”violation claims under (1) the throw-away dictumin Riegel concerning a waived claim and (2) vague claims that the Court tookless-than-seriously in Lohr. SeeLamere, 2013 WL 599178, at *6 (dealing with these cases’ “parallel”violation language in a paragraph).
The plaintiff in Lamere took themanufacturing defect/good manufacturing practice (“GMP”) approach to preemption, id.,arguing that, even though the valve operated properly for almost twenty years,it was nonetheless manufactured in violation of … something…. Plaintiff never was very clear; even thePublic Citizen folks weren’t able to come up with a viable theory.
So they argued that they didn’t have to − any oldGMP was enough. The two GMPs that theplaintiff settled on were:
Each manufacturer shall develop, conduct, control, andmonitor production processes toensure that a device conforms to its specifications. Where deviations from device specificationscould occur as a result of the manufacturing process, the manufacturer shall establish and maintain processcontrol procedures that describe any process controls necessary toensure conformance to specifications.
21 C.F.R. § 820.70(a) (emphasis added).
Each manufacturer shallestablish and maintain procedures to control product that does not conform tospecified requirements. Theprocedures shall address theidentification, documentation, evaluation, segregation, and disposition ofnonconforming product. The evaluation ofnonconformance shall include adetermination of the need for an investigation and notification of thepersons or organizations responsible for the nonconformance.
21 C.F.R. § 820.90(a) (emphasis added) (both quoted at 2013WL 599178, at *7).
As the emphasized language makes quite clear, theseGMPs are of the “umbrella” variety. Theytell a manufacturer what topics to pay attention to, but provide absolutely nospecifics about what the manufacturer is supposed to do in order tocomply. They are, in short, the classicvague regulations that leave it to the manufacturer to decide how to comply. That's exactly the opposite of how state law ordinarily works, with violation claims replacing the "reasonable man" default standard only if the violated enactment provides a specific substitute (like "speed limit 55" instead of a "reasonably safe speed under the circumstances"). The Court of Appeals went through the “split” amongthe federal circuits about whether GMPs had to be “specific” in order tosupport a viable “parallel” claim. Lamere,2013 WL 599178, at *6. Ultimately, thecourt came down on the side of specificity – at least that a GMP had to do morethan tell a manufacturer that it needed to do something about this or that:
Without concluding that a GMP may never form the basisof a valid parallel claim, we hold that in this case [plaintiff] failed tosufficiently plead a parallel claim based on the specific GMPs she cites. We observe that those circuit court casesapproving of the use of GMPs as a basis for a parallel claim require that the plaintiff plead withgreater specificity.
2013 WL 599178, at *7 (emphasis added). For this proposition the court cited Bassv. Stryker Corp., 669 F.3d 501, 511-12 (5th Cir. 2012). Bass isn’t exactly the greatestdecision we’ve ever seen on specificity (the complaint survived), although Bassdid involve a relatively detailed complaint, as we discussed here. So Lamere had to be prettypoorly pleaded to fail that test.
Not only that, but these plaintiffs weren’t allthat sympathetic, even with Public Citizen on the case. Lamere was decided on summary judgment(remember, if you want to win a preemption motion, your odds are considerably betteron summary judgment – it’s just a lot more expensive). Thus, Lamere wasn’t a case where theplaintiffs were being shown the door without benefit of discovery. Rather, they “had ample opportunity to discoverwhether any GMPs had been violated” and hadn’t been able to come up withanything (not surprising, given that the valve lasted for almost twentyyears). Plaintiffs have to do better thanthat:
[T]o survive a motion for summary judgment followingdiscovery, [plaintiff] is required to do more than merely cite two GMPs withoutexplaining how the violation of these GMPs occurred or how such a violation wascausally related to the failure of the mechanical heart valve.
2013 WL 599178, at *7.
But Public Citizen was persistent, if notpersuasive. Plaintiff kicked “parallel”violations to the curb and attempted to make a virtue of their inability tofind anything. In a frontal assault on Riegelplaintiff argued that precisely because there wasn’t any federal regulation“specifically” on point, their claims couldn’t be preempted. Id. at *7. Talk about chutzpah – that’s precisely what Riegelwas all about.
The Court of Appeals quite rightly rejected thisclaim as incompatible with Reigel’s holding that the PMA process, in andof itself, provides whatever “specificity” is necessary under the statute’s expresspreemption clause:
[Plaintiff] argues that a general state-law duty not todistribute products with manufacturing flaws does not impose any requirementson [defendant] that are different from or in addition to federal requirementsthat are specifically applicable. Butthis argument ignores Riegel,which concluded that “[g]eneral tort duties of care ... ‘directly regulate’ thedevice itself, including its design.” Weconclude that imposing the state’s strict-liability rules on a PMA device wouldimpose a general duty that would directly regulate the device itself, whichwould be a regulation that is different from the federal regulations applicableto the PMA device.
2013 WL 599178, at *8 (Riegel citationomitted) (emphasis added). In other words, PMA preemptionactually means something. Getting hurtisn’t carte blanche to sue. “PMA process does not guarantee that everydevice is safe.” Id.
So much for medical device litigation tourism inMinnesota.
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