Jurors took just eight hours to award a Brooklyn couple $26 million — double what they had sought — after overwhelmed medical residents at Maimonides Medical Center allegedly botched the birth of their twins, leaving one dead and the other deaf and mute, reports the New York Post.

Under a “high-low” agreement struck earlier by both sides, the plaintiffs agreed to receive a “high’’ of $7.5 million if they won their suit and a “low’’ of $1.5 million, even if they lost, according to reporter Julia Marsh.

In 2010, the expectant mother went to the hospital twice with cramping and spotting but was sent home by doctors-in-training, according to the lawsuit. When her twins daughters were born later, they weighed about 1.5 pounds each. A month later, one died from an infection, and the other is deaf and suffers from kidney failure.

Read the Post‘s article.

A post on the What’s Fair? blog on the Ellis & Winters LLP website discusses a recent federal appellate decision that shows how data-breach lawsuits premised on overpayment theories — which often assert claims sounding in contract — still face an uphill battle.

Alex Pearce explains that the overpayment theory rests on the premise that the price of a product or service includes a payment for data security measures. He outlines the recent ruling in Kuhns v. Scottrade.

“In that decision—a boon for data-breach defendants—the Eighth Circuit employed a demanding test for the pleading of facts that give rise to an overpayment claim,” Pearce writes.

Read the article.

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Liz Kramer, writing for Stinson Leonard Street’s Arbitration Nation, writes that a recent ruling for a state supreme court may be indicative of what litigation over nursing home arbitration agreements will look like after the U.S. Supreme Court’s ruling in Kindred Nursing Centers v. Clark.

Kramer, a partner in the firm, discusses the Wyoming Supreme Court’s reversal of a lower court’s ruling in an arbitration case. The lower court denied a nursing home’s motion to compel arbitration.

But the state’s high court reversed, following the U.S. Supreme Court’s Kindred ruling that another state’s rationale for not enforcing an arbitration agreement was preempted by the Federal Arbitration Act.

Read the article.

President Trump declared the opioid crisis a public health emergency, stopping short of calling it a national emergency. The announcement expands access to treat the epidemic, but doesn’t free new federal funding for cities and states to use.

Dallas attorney Jeffrey Simon of Simon Greenstone Panatier Bartlett, who represents Texas counties suing drug manufacturers, says more federal funding is needed.

“I commend the president for using his platform to highlight the epidemic of opioid abuse in America,” said Simon. “Opioid addiction is a disease rather than a character flaw, and the president’s effort to draw this distinction is welcome. But the financial costs of successfully treating opioid addiction are substantial, as are the costs of effective educational programs to stem the epidemic. I remain hopeful that our federal government will devote the financial resources necessary to combat this health crisis, but that remains to be seen.

“I contend that the second essential step to addressing any problem, after acknowledging its existence, is to identify the source of the problem. Our Texas county governments, which pay high costs to combat the opioid abuse epidemic in their communities, are doing this very thing. They are fighting back. Counties we represent, such as Bowie County and Upshur County, have filed lawsuits against drug manufacturers and wholesale distributors for the purpose of holding them financially accountable for their roles in promoting and selling so many of these addictive drugs.

“On behalf of their citizens, these county governments are confronting the opioid abuse epidemic in their communities. We are proud and privileged to serve Texas counties as legal counsel in this fight.”

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A large group of U.S. states accused key players in the generic drug industry of a broad price-fixing conspiracy, reports Reuters.

Reporter Karen Freifeld writes: “The states said the drugmakers and executives divided customers for their drugs among themselves, agreeing that each company would have a certain percentage of the market. The companies sometimes agreed on price increases in advance, the states added.”

The suit names 18 companies and subsidiaries and named 15 medicines. Mylan NV, Teva Pharmaceuticals USA, Ascend Laboratories and Encure Pharmaceuticals are among the 18 companies named.

The Los Angeles Times also covered Mylan’s challenges: “A price-fixing noose tightens around Mylan, the company that profiteered from the Epipen.”

Read the Reuters article.

DLA Piper announced that Michael Krauss has joined the firm’s Litigation practice as partner in the Minneapolis office.

Krauss, a former assistant U.S. attorney in New York, advises trustees, creditors and lenders on complex financial disputes. He has represented leading national banks in corporate trust and structured products matters, such as residential mortgage-backed securities litigation and indenture claims, and has secured over US$150 million in related settlements. Krauss also advises clients on creditor litigations and insolvency.

“Michael is a top-notch litigator with an impressive track record representing clients in the financial services sector,” said Loren Brown, co-chair of DLA Piper’s global and US Litigation practices. “That background, coupled with his enforcement experience as an AUSA, makes him an important addition to our representation of some of the world’s largest financial institutions.”

In a release, the firm said Krauss also has experience working on financial issues and potential liabilities in the highly-regulated field of tribal gaming, and has won judgments and settlements for lenders and developers nationwide.

“Michael is known in the Twin Cities and nationally as an impactful litigator with the ability to efficiently manage the spectrum of financial disputes that a company may face,” said Kathleen Smith Ruhland, managing partner of DLA Piper’s Minneapolis office. “Those skills will be immediately beneficial to our clients based here and throughout the country.”

Krauss is the most recent addition to DLA Piper’s Minneapolis office, which welcomed partner Michael Fisco earlier this year. The firm’s Litigation practice has also welcomed several partners this year, including Amy Rudd (Austin), Ilana Eisenstein (Philadelphia), Christopher Oprison (Miami), David Sager (New Jersey), John Rah (Washington, DC), Raphael Larson (Washington, DC), Thiru Vignarajah (Baltimore), and Louis Ramos (Washington, DC).

Krauss joins DLA Piper from Faegre Baker Daniels in Minneapolis, where he was the Finance Litigation team leader. He earned his J.D., with distinction, from Stanford Law School and his B.A., with highest distinction and high honors, from the University of Michigan.

A U.S. District Court recently addressed issues associated with a producing vertical well’s claim for damages related to another company’s subsequent installation of a horizontal well, reports Walter G. Wright for Mitchell, Williams, Selig, Gates & Woodyard.

Specifically, the court addressed whether various damage claims were waived by the execution of a consent and release agreement.

Wright explains that the defendant cited the second paragraph in the agreement in support of its assertion for the waiver of most damages. In contrast, the plaintiff cited the last sentence of the first paragraph for the proposition that it was not restricted in its ability to “seek relief.”

The court found the agreement to be ambiguous because of this inconsistency and contradiction and found that the terms should be construed against the defendant, who drafted the agreement.

Read the article.

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A recent decision by the United States Court of Appeals for the Third Circuit is a reminder that — for an arbitration clause to apply in certain situations or to certain parties — that intention must be built into the plain terms of the contract.

In a post on the Blank Rome website, partners Stephen M. Orlofsky and Deborah Greenspan discuss White v. Sunoco, Inc. The case involved the “Sunoco Awards Program,” under which customers who used a Citibank-issued “Sunoco Rewards Card” credit card were supposed to receive a 5-cent per gallon discount on gasoline purchased at Sunoco gas stations.

A dispute over the discount led to arbitration.

In its ruling the appellate court found: “[n]owhere does the agreement provide for a third party, like Sunoco, the ability to elect arbitration or to move to compel arbitration.”

Read the article.

The portion of Norton Rose Fulbright’s 2017 Litigation Trends Annual Survey that covers alternative fee arrangements presents a puzzling picture that probably reveals the challenges of bringing about changes in the way external counsel are instructed, the firm reports.

Last year, 37 percent of respondents predicted they were going to increase their use of AFAs.

“Those who have used AFAs over the year are almost universally satisfied with the quality of the work they have received,” according to the report. “But, despite this, the use of AFAs (56 percent) and their average spend under an AFA (28 percent) are largely unchanged since last year.

“The inherent unpredictability of many types of dispute could be placing a ceiling on the proportion of matters where both parties feel confident operating under an AFA. However, staged approaches to AFAs can help to overcome this. Predictions for 2018 once again show a rise in AFAs – it will be interesting to see if this materializes or whether inertia persists.”

The survey also looks in detail at other major areas of concern, including regulatory investigations; class actions and environmental disputes.

Read the survey report.

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Tom Melsheimer

The University of North Texas Press is releasing a lawyers’ guide to courtroom preparation and strategy titled “On the Jury Trial: Principles and Practices for Effective Advocacy.”

Texas trial lawyer and Winston & Strawn Dallas managing partner Tom Melsheimer and Texas judge Craig Smith wrote the book, which covers jury selection, witness preparation, opening statements, jury research, and more.

Judge Craig Smith

“In an age when the jury trial is vanishing, I think a book such as ours is a must-read,” said Melsheimer. “To preserve the jury trial, we must preserve the skills involved in trying a case effectively and efficiently. Judge Smith and I wrote this to add to that effort.”

Trial lawyers whose comments appear on the book’s jacket laud the work for its down-to-earth advice, illustration and commentary.

“Real-world, real-life insights. A book that every lawyer should read,” said Michael E. Tigar, author of “Persuasion: The Litigator’s Art and Examining Witnesses.”

“I will definitely order a copy of this book for every associate in my firm and recommend that others do so too,” said Steve Susman of Susman Godfrey L.L.P.

Before being elected to the 192nd District Court in Dallas County in 2006, Judge Smith was a trial lawyer for more than 25 years. As a judge, he was honored as Trial Judge of the Year by the Dallas Chapter of the American Board of Trial Advocates and was elected president of the Texas Association of District Judges in 2010.

Melsheimer has tried cases for more than 30 years. He is a past “Trial Lawyer of the Year” by the Texas Chapters of the American Board of Trial Advocates and by the Dallas Bar Association. He is a Fellow in the International Academy of Trial Lawyers and an Advocate in the American Board of Trial Advocates.

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A ruling that throws out a plaintiff’s $417 million jury verdict against John & Johnson will affect many of the nearly 5,000 women who claim they developed ovarian cancer from J&J power containing talc, reports Reuters.

“The judge’s skepticism about causation will reverberate across the talc litigation in California because she’s overseeing all of the more than 800 suits by women who attribute their cancer to J&J powders that contained talc,” writes Alison Frankel. “Unless their lawyers can come up with better evidence than Echeverria – or unless scientific developments boost causation theories – Judge Nelson’s decision is ominous for plaintiffs and a boon for J&J and its subsidiary.”

Read the Reuters article.

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The heir of Texas oil tycoon H.L. Hunt involved in a bitter decade-long dispute with his son over control of a $1 billion trust wants the Texas Supreme Court to declare illegal his lawyer’s request to be paid $48,000 an hour for his legal services, reports The Houston Chronicle.

Janet Elliott of The Texas Lawbook writes that attorney Gregory Shamoun claims to have made a 50 percent contingency agreement with Albert Hill Jr. to settle the high-dollar family fight.

Then, when Shamoun negotiated a global settlement for $40.5 million that left Hill Jr. in exclusive control of the family trust, Hill Jr. refused to pay the 50 percent. He claimed the legal fee was ludicrously too high, Shamoun sued and won a $7.25 million award – or an estimated $48,000 an hour – from a jury.

Read the Chronicle article.

Steptoe & Johnson’s Energy and Environmental, Products & Mass Tort Groups will host a webinar to discuss the implementation of the Coal Ash Rule, the current litigation landscape surrounding coal ash, and strategies for avoiding courtroom and regulatory challenges.

The complimentary one-hour event will be Wednesday, Dec. 13, 2017, at noon Eastern time.

The Disposal of Coal Combustion Residuals from Electric Utilities Final Rule (the Coal Ash Rule) is the first federal rule to regulate coal ash waste disposal, the firm says on its website. The Coal Ash Rule has proven controversial since it was first announced in 2015 and has given rise to regulatory changes, mass tort actions, and citizen suits under the Resource Conservation and Recovery Act (RCRA). The US Environmental Protection Agency recently announced that it is considering rolling back portions of the Coal Ash Rule. Growing controversies over the disposal of coal ash, the Coal Ash Rule, and the future of coal ash regulation are not likely to end soon.

Register for the webinar.

Hogan Lovells announced that Michael C. Hefter, Seth M. Cohen and Ryan M. Philp have joined its New York office as partners in the firm’s Litigation practice.

The group previously practiced together at Bracewell LLP where Michael co-chaired the securities litigation practice and served as the head of commercial litigation in the New York office. The team focuses on a wide range of complex commercial litigation matters, including M&A, transactional and securities litigation, as well as Delaware governance issues.

“Michael, Seth and Ryan are distinguished additions to the firm,” said Michael Davison, head of the firm’s Litigation, Arbitration and Employment practice group. “Their combined experience and excellent reputation will be instrumental in strengthening both our Global Litigation and Transactional practices.”

In a release, the firm said the team represents corporations, investment funds, banks, and officers and directors in litigation and arbitration in a wide variety of industries, including claims involving breach of contract, breach of fiduciary duty, fraud and other business disputes, securities litigation, RICO class actions, structured finance disputes, post-acquisition disputes, corporate governance, claims involving lender liability issues, shareholder class and derivative actions, claims involving LLC and limited partnership issues and structures, bankruptcy-related litigation, energy disputes, and other forms of litigation.

“This move strategically meets the increasing demand by our New York clients for more Delaware M&A and securities litigation support,” said Dennis Tracey, head of the firm’s Litigation Practice in the Americas. “Our US Litigation practice has been focused on recruiting laterals with experience representing corporations and financial service companies in disputes that arise out of major public and private transactions, particularly with the recent expansion of our M&A practice in Northern California.”

About the Lawyers:

Michael C. Hefter was co-chair of the securities litigation practice group and head of commercial litigation in Bracewell LLP’s New York office. He has acted as lead litigation and trial counsel for numerous clients in complex jury and non-jury trials.. He received his J.D., with honors, from Emory University School of Law and his B.A from the University of Michigan.

Seth M. Cohen is a trial partner who advises clients on a wide range of complex commercial litigation matters in the federal, state and appellate courts. Cohen graduated with his J.D., cum laude, from Emory University School of Law and received his B.A., cum laude, from Cornell University.

Ryan M. Philp is a trial partner who represents public companies, private investment firms, financial institutions and officers and directors in all phases of civil litigation. He earned his J.D., cum laude, Order of the Coif, from Seton Hall University School of Law and his B.A., cum laude, from Loyola College in Maryland.

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In workplace harassment cases — both in Hollywood and in the rest of the American workforce — many companies try to use nondisclosure agreements to protect the employer from legal consequences for wrongdoing, according to Bloomberg Law. And the NDA can also serve to keep criminal behavior out of the public eye and the courts.

That’s how someone like Hollywood producer Harvey Weinstein can be a repeat offender without consequence, explains Bloomberg reporter Rebecca Greenfield.

She quotes Peter Romer-Friedman, an employment lawyer at Outten and Golden: “It’s buying silence. It’s buying confidentiality. It’s trying to sanitize. These agreements are often protecting criminal activity.”

“NDAs are geared to ensure that the fraction of people who do come forward can’t warn others or bring claims to light, all of which contributes to the culture of silence around workplace harassment.
Legal scholars are now asking if settlements backed by nondisclosure pacts are protecting criminal activity,” Greenfield writes.

Read the Bloomberg article.

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First Coast News reports that federal judges in Florida handed down $9,164,404.12 in fines Wednesday on prominent Jacksonville litigation firm, Farah & Farah, P.A.

Farah & Farah and the Wilner Firm filed 1,250 frivolous tobacco claims against the Engle Trust Fund, the court found.

“Engle is a class action lawsuit named for a Miami pediatrician who defeated tobacco companies in court,” First Coast News explains. “A multi-million dollar fund paid by tobacco companies was set up for Floridians and their survivors who suffered illnesses due to cigarette smoking from 1994-2006. The class action in 2008 was estimated to include 700,000 people.”

Some cases filed by the attorneys were for deceased clients, non-smokers, those who did not suffer from one of the required diseases, and 572 that did not authorize the attorneys to file lawsuits on their behalf, the report says.

Read the First Coast News article.

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General Motors will pay $120 million to settle claims from dozens of states in its massive ignition switch defect scandal, reports The Detroit Free Press.

Earlier this year, the U.S. Supreme Court ruled that GM could no longer avoid hundreds of suits from victims of the defective ignition switches in accidents occurring before GM filed for Chapter 11 bankruptcy in 2009. according to reporter Eric D. Lawrence.

“The settlement is tied to violations of consumer protection laws and is on top of GM’s previous penalties and settlements of an estimated $2.5 billion, including $900 million to settle a U.S. Department of Justice criminal case,” Lawrence writes.

The settlement does not resolve federal multi-district litigation involving what has been reported as possibly hundreds of plaintiffs.

Read the Free Press article.

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The Associated Press is reporting that a Missouri appeals court on Tuesday that vacated a $72 million award to an Alabama woman who claimed her use of Johnson & Johnson products that contained talcum contributed to her ovarian cancer has thrown the fate of awards in similar cases into doubt.

“The appeals court cited a Supreme Court ruling in June that placed limits on where injury lawsuits could be filed, saying state courts cannot hear claims against companies not based in the state where alleged injuries occurred. The case involved suits against Bristol-Myers Squibb over the blood-thinning medication Plavix,” writes the AP’s Margaret Stafford.

More than 1,000 plaintiffs have filed similar lawsuits in St. Louis against New Jersey-based J&J. “In four of five trials held so far, jurors awarded more than $300 million combined. Only two of the 64 cases attached to Fox’s case lived in Missouri,” according to Stafford.

Read the AP article.

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The Walt Disney Company is going to battle with its insurer, AIG, as it seeks coverage for a massive settlement in the “pink slime” defamation case, Variety is reporting.

Disney is trying to force AIG to submit to arbitration on the coverage dispute. While the underlying litigation is not identified, the dates line up with Disney’s court battle with Beef Products Inc. in South Dakota, according to reporter Gene Maddaus.

BPI sued Disney, alleging that ABC News had damaged its business with a series of reports on “pink slime.” Disney settled the case partway through trial in June.

“In August, Disney disclosed that it had incurred legal costs of $177 million, the bulk of which was believed to be due to the BPI settlement,” Maddaus writes. “The total settlement was believed to be significantly larger, once insurance claims were factored in.”

Read the Variety article.

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A jury has awarded the widow and heirs of Sabre airline reservation system pioneer Max D. Hopper more than $6 billion in damages after finding JPMorgan Chase in breach of its fiduciary duty in administering the multimillion-dollar Hopper estate.

“JPMorgan Chase is one of the world’s largest and most respected banks, and its clients expect honesty and fairness in the handling of trusts and estates,” said James S. Bell of James S. Bell, PC, trial lawyer for Hopper’s adult children, Dr. Stephen Hopper, a Tulsa, Oklahoma, psychiatrist, and Laura Wassmer, mayor of Prairie Village, Kansas.

“In this case, the JPMorgan Chase name doesn’t mean the institution put its clients’ interests above its own. When challenged, the bank used the family’s own money to fight them in court over the handling of their father’s estate,” said Bell.

Hopper, who helped create the Sabre reservations system, died unexpectedly in 2010 without a valid will. At the time of his death, his estate was estimated at more than $19 million.

Read details about the case.