Xarelto Settlement Faces Legal Challenge

As the Xarelto Defendants continue to move to dismiss plaintiffs cases, utilizing the dismissal machine, created by Case Management Orders,  apparently stipulated to by certain members of the Xarelto Plaintiffs Steering Committee, other attorneys continue to aggressively fight for their clients.

Despite the fact that it appears these certain members of the Xarelto Plaintiff Steering Committees interest are now more aligned with the defendants than the Plaintiffs they purport to represent, other firms not on the PSC are pushing back.

Below is a copy of a motion that was filed challenging the propriety of  dismissals with prejudice based on the various “settlement orders” as well as the fact that the “settlement orders” have in essences created an unlawful opt in requirement. These arguments might be useful to firms in filing motions for reconsideration under FRCP 60 related to cases that have already fallen victim to the dismissal machine.

Motions have also been filed challenging the Xarelto MDL Courts subject matter jurisdiction (asserting the MDL Court lacks subject matter jurisdiction) over the private settlement agreement and thus lacks subject matter jurisdiction to enter orders to assist the parties in effectuating the terms of the settlement agreement (those orders I refer to as the “dismissal machine”.) I will cover the subject matter jurisdiction issues in other posts.

Below is the text of the motion mentioned above:

 

PLAINTIFFS’ OBJECTIONS TO SHOW CAUSE ORDERS

INTRODUCTION

In its Show Cause orders, this Court has stated that the Plaintiffs’ causes of action will be dismissed with prejudice as a penalty for Plaintiffs’ failure to submit an Enrollment Election Formand/or a Notice of Intent to Proceed. [Doc. 16218, Order Rescheduling Hearing to Show Cause; Doc. 15416, Order to Show Cause Regarding Plaintiffs Who Have Failed to Comply with CaseManagement Order 12A; Doc. 14877, Case Management Order 12A]. Pursuant to CMO 12A, only voluntary dismissals with prejudice are allowed. [Doc. 14877, Page 2 of 2.]

Plaintiffs on the attached Exhibit 1 (“Objecting Plaintiffs”), through undersigned counsel, object to the dismissal of their cases. Exhibit 1-A is a list of Plaintiffs who need more time to make an election, and Exhibit 1-B are a list of Plaintiffs who have made an election deemed deficient by BrownGreer. Objecting Plaintiffs’ cases should not be dismissed for four reasons. First, the prerequisites for the harsh remedy of dismissal with prejudice have not been met. Second, because there is no class certification, Plaintiffs are non-parties to the settlement and have no obligation to respond. Third, requiring that Plaintiffs undertake procedural hoops or face dismissal is akin to imposing an “opt in” class requirement, and as such is forbidden by operative law. Fourth, requiring a category of individuals in ill health to appear, in addition to the appearance of their counsel, as a penalty for not responding to a settlement offer not directed to them or presented in their individual cases is unreasonable.

ARGUMENT AND AUTHORITIES

The Prerequisites for Imposing the Harsh Remedy of Dismissal with Prejudice Have Not Been Met.

Federal Rule of Civil Procedure 41(b) provides, “if the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Interpreting the Federal Rules of Civil Procedure, the jurisprudence has strictly circumscribed the instances in which a case can be dismissed with prejudice.

Dismissal with prejudice is “an extreme sanction that deprives a litigant of the opportunity to pursue his claim.” Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir.1980). “Dismissal with prejudice is appropriate only when there is ‘a showing of (a) a clear record of delay or contumacious conduct by the plaintiff, and (b) where lesser sanctions would not serve the best interests of justice.’” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (quoting Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018); further citation omitted). These are long standing requirements recognized in this Circuit. Rogers v. Kroger Co, 669 F.2d 317, 320 (5th Cir. 1982) (“This circuit has consistently held that Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, …, and where lesser sanctions would not serve the best interests of justice.”) (collecting cases; internal quotes omitted); Gonzalez, 610 F.2d at 247 (“we have consistently held that dismissal with prejudice is warranted only where a clear record of delay or contumacious conduct by the plaintiff exists, . . . and a lesser sanction would not better serve the interests of justice.”) (collecting cases; quotation marks omitted). “Because this test is conjunctive, both elements must be present.” Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (footnote omitted).

“In addition, [the appeals court] generally affirm[s] dismissals with prejudice only upon a finding of at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.’” Coleman, at 766 n. 9 (quoting Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986)); see also Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (“where this Court has affirmed dismissals with prejudice, it has generally found at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.’”) McGlathery, 792 F.2d at 474). Put another way, “[b]efore an action can be dismissed with prejudice under Rule 41(b), two ‘requisite’ factors must be present and a third ‘aggravating’ factor usually should be present.” Springboards to Educ., Inc. v. Kipp Found., 325 F. Supp. 3d 704, 710 (N.D. Tex. 2018) (quoting Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417-18 (5th Cir. 2006)).

“Generally, where a plaintiff has failed only to comply with a few court orders or rules, [the appeals court has] held that the district court abused its discretion in dismissing the suit with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192 n.6 (5th Cir. 1992) (collecting cases); see also Vafaiyan v. Target Inc., 251 F. App’x 862, 864 (5th Cir. 2007) (quoting same and finding that dismissal was abuse of discretion where plaintiff failed to correct deficiency).

The Objecting Plaintiffs’ cases cannot be dismissed with prejudice for three, independent reasons: 1) a clear record of delay or contumacious conduct does not exist; 2) lesser sanctions would serve the best interests of justice; 3) there are no aggravating factors, making this remedy impermissibly draconian.

Plaintiffs are not guilty of clear delay or contumacious conduct.

“[D]elay which warrants dismissal with prejudice must be longer than just a few months; instead, the delay must be characterized by significant periods of total inactivity.” Bullard v. Burlington N. Santa Fe Ry. Co., 368 F. App’x 574, 581 (5th Cir. 2010) (quoting Millan v. USAA Gen. Indem., supra, 546 F.3d at 326-27; further citation and quotation marks omitted). The Bullard court found that, notwithstanding the district court’s evident frustration with plaintiffs, the court could not affirm a de facto dismissal with prejudice because there was an insufficient record of contumacious conduct. 368 F. App’x at 581-82. The court explained that “it is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious.” 368 F. App’x at 581 (quotingMillan, 546 F.3d at 327).

The Coleman court reversed a dismissal with prejudice where the plaintiff failed to provide an address for the defendant, explaining that “negligent behavior” fails to rise to the level of material delay or contumacious conduct so as to justify dismissal with prejudice. 745 F.3d at 767. The Millan court similarly reversed dismissal, where the plaintiff failed to effect timely service, explaining that, “it is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious; instead it is the ‘stubborn resistance to authority’ which justifies a dismissal with prejudice.” 546 F.3d at 327 (quoting McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir.1988); further citation omitted).

The Gonzalez court reversed the trial court’s dismissal, reasoning that, “[t]he failure of plaintiffs counsel to obtain admission to the bar of court and to appear at the pre-trial conference did not amount to a clear record of delay or contumacious conduct.” 610 F.2d at 248 (quotation marks omitted). See also Hurman v. Port of Houston Authority, 990 F.2d 626 (5th Cir. 1993) (district court abused its discretion by involuntarily dismissing suit for failure to prosecute where plaintiff had failed to file a pretrial order and had failed to appear at docket call); Mosher v.

Keanster, 343 F. App’x 994, 995 (5th Cir. 2009) (failure to appear for a scheduling conference did not warrant dismissal; dismissal vacated and remanded).

Dismissal with prejudice does not serve the best interests of justice.

Even assuming for the sake of argument that the plaintiffs’ omissions could be characterized as “contumacious,” this does not compel the conclusion that the conduct requires immediate resort to the harshest of sanctions. Raborn v. Inpatient Mgmt. Partners Inc., 278 F. App’x 402, 406 (5th Cir. 2008) (“Even if it could be characterized as ‘contumacious,’ it is not the type of conduct that requires immediate resort to ‘the harshest of sanctions….’”) (quoting Porter v. Beaumont Enterprise and Journal, 743 F.2d 269, 272 (5th Cir.1984)). Failure to comply with a district court order does not establish that a lesser sanction would be futile. See Campbell v. Dretke, 261 F. App’x 702, 704 (5th Cir. 2008) (where plaintiff failed to comply with court order to re-file his complaint in compliance with proper form, court vacated and remanded dismissal, noting that there was no determination that lesser sanctions would not prompt diligent prosecution).

No aggravating factors exist.

There is no basis for finding that the victims of Xarelto have caused the delay here, or that they have acted intentionally. In stark contrast, they are not aware of the proceedings and/or are unable to complete the requisite paperwork due to factors other than intentional recalcitrance. See Exhibit 1, Declaration of Charlotte Long. Exhibit 1-A hereto identifies efforts to reach Objecting Plaintiffs, illustrating that their failure to comply with the Court-ordered procedures is not deliberate, and that the strong majority of these cases have only been on file for approximately six months. Exhibit 1-B hereto identifies Objecting Plaintiffs who intend to make an election that has been communicated to Brown Greer, but whose response has been deemed deficient. Under these circumstances, dismissal with prejudice as a penalty for failing to comply with the procedural requisites of the Show Cause order would be unduly harsh.

There is no showing of prejudice to the Defendants. The mere fact that reinstatement of the plaintiff’s case will require defendants to “expend funds necessary to present a defense” is not sufficient to establish prejudice. Raborn, 278 F. App’x at 407 (court abused its discretion in dismissing claim effectively with prejudice). See also Raymond v. Univ. of Houston, 275 F. App’x 448, 450 (5th Cir. 2008) (finding no aggravating factor and reversing dismissal notwithstanding negligence and a period of inactivity from April 16, 2006 to November 27, 2006; and from January 10, 2007 to March 26, 2007).

Because There Is No Certified Class, There Is No Obligation for Plaintiffs in Individually Filed Cases to Respond to a Global Settlement Agreement that Was Not Entered in, and Is Not Specific to, Them or Any of their Individual Cases.

Here, each Plaintiff has filed an individual case. The settlement is not a class action settlement. Moreover, there are serious constitutional impediments to certifying a class of individuals who have sustained personal injuries and/or death. See, generally, Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. FibreboardCorp., 527 U.S. 815 (1999).

In the absence of a certified class, the settlement documents at issue are not binding on these individual plaintiffs. Indeed, the Objecting Plaintiffs are non-parties to the settlement. The Defendants in the individually filed cases have not filed or presented a settlement offer addressed to, tailored to, or specific to the individual Objecting Plaintiffs or their cases. The settlement provides a grid. The Objecting Plaintiffs have not been informed where, on that grid, they fall according to the Defendants and according to BrownGreer. Therefore, there is no sum certain offer made to them at this time. There is no authority allowing dismissal as a penalty for failing to complete certain paperwork, to BrownGreer’s satisfaction, in response to a settlement offer that was not entered into the individual cases.

The Procedural Requirements Are Akin to Imposing an Opt-In Class Requirement, which Is Forbidden.

The Show Cause orders seek to punish the Objecting Plaintiffs for not satisfying the procedural requirements of a one-sided settlement offer that was not specifically directed toward any of the Objecting Plaintiffs, or their cases, individually. The law does not allow for certification of an “opt in” class imposing procedural hoops for class inclusion. Ackal v. Centennial Beauregard Cellular L.L.C., 700 F.3d 212, 216 (5th Cir. 2012) (quoting Kern v. Siemens Corp, 393 F.3d 120, 124 (2d Cir. 2004)). See also Clark v. Universal Builders, Inc., 501 F.2d 324, 340 (7th Cir. 1974) (“The requirement of an affirmative request for inclusion in the class is contrary to the express language of Rule 23(c)(2)(B).”); Shepardson v. Midway Indust., Inc., No. 3:18-CV-3105, 2019 WL 2743435, at *3 (W.D. Ark. July 1, 2019) (citing Ackal and Clark, and refusing to approve class settlement and notice); Dallas County, Tex. v. MERSCORP, Inc., 2012 WL 6208385, No. 3:11-cv-02733-0 (N.D. Tex. Dec. 13, 2012) (denying certification and citing Ackal as controlling authority); Maciel v. Bar 20 Dairy, LLC, No. 117CV00902DADSKO, 2018 WL 5291969, at *8 (E.D. Cal. Oct. 23, 2018) (applying Ackal, Kern, and Clark, and rejecting the plaintiffs’ argument that class members could be required to opt in to the Rule 23 action). The failure of the Objecting Plaintiffs to comply with the procedural hoops promulgated in this Court’s orders cannot be a basis for dismissal, because this is akin to imposing affirmative procedural actions to “opt in” to a class.

  1. The Appearance of Counsel at the Hearing Should Be Sufficient.

The Objecting Plaintiffs are elderly individuals in ill health, and it would not be easy, if even possible, for them to travel to New Orleans for a hearing. See Exhibit 1, Declaration of Charlotte Long. Even were each Objecting Plaintiffs’ individual case subject to a pretrial conference in his or her individual case, under Federal Rule of Civil Procedure 16, “the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences.” FED. R. CIV. P. 16(a) (emphasis added). “If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.” Fed. R. Civ. P. 16(c)(1) (emphasis added). The Court’s Show Cause orders do not accept reasonable availability in that they require personal presence. This is not appropriate, particularly considering that the Defendants have not appeared in their individual cases to make an individual settlement offer in the first instance. Moreover, dismissal with prejudice is an unduly draconian penalty for a failure to appear in person. See, e.g., Hurman v. Port of Houston Authority, 990 F.2d 626 (5th Cir. 1993) (district court abused its discretion by involuntarily dismissing suit for failure to prosecute where plaintiff had failed to file a pretrial order and had failed to appear at docket call).

CONCLUSION AND PRAYER FOR RELIEF.

Wherefore, Objecting Plaintiffs on the attached Exhibit 1 respectfully request that this Honorable Court not dismiss their actions with prejudice, and for such other relief to which they may be entitled.

The case law cited in the motion can be accessed at the links below:

Amchem Products, Inc. v. Windsor

521 US 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 – Supreme Court, 1997 – Google Scholar

The United States District Court for the Eastern District of Pennsylvania certified the class for
settlement only, finding that the proposed settlement was fair and that representation and notice
had been adequate. That court enjoined class members from separately pursuing asbestos-related
personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court
of Appeals for the Third Circuit vacated the District Court’s orders, holding that the class certification
failed to satisfy Rule 23’s requirements in several critical respects. We affirm the Court of …

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Ortiz v. Fibreboard Corp.

527 US 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 – Supreme Court, 1999 – Google Scholar

Like Amchem Products, Inc. v. Windsor, 521 US 591 (1997), this case is a class action prompted
by the elephantine mass of asbestos cases, and our discussion in Amchem will suffice to show
how this litigation defies customary judicial administration and calls for national legislation.
[1] In 1967, one of the first actions for personal asbestos injury was filed in the United States District
Court for the Eastern District 822 of Texas against a group of asbestos manufacturers. App. to
Pet. for Cert. 252a. In the 1970’s and 1980’s, plaintiffs’ lawyers throughout the country, particularly …

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Ackal v. Centennial Beauregard Cellular LLC

700 F. 3d 212 – Court of Appeals, 5th Circuit, 2012 – Google Scholar

On September 11, 2001, a group of cellular telephone customers filed suit in Louisiana state
court against its members’ respective service providers, including Defendants-Appellants Centennial
Beauregard Cellular LLC and its related entities (“Centennial“). The suit — which alleges causes …

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Kern v. Siemens Corp.

393 F. 3d 120 – Court of Appeals, 2nd Circuit, 2004 – Google Scholar

Rudolph KERN, And on behalf of the Estate of Erich Kern, Angela Kern, And on behalf of the
Estate of Erich Kern, John S. Habblett, LTC (Ret.), and on behalf of the Estates of Jennifer Kirkpatrick
Habblett Goodridge, Michael Jonclair Goodridge and Kyle William Goodridge, Suzanne K …

Cited by 91    How cited Related articles

 

 

Clark v. Universal Builders, Inc.

501 F. 2d 324 – Court of Appeals, 7th Circuit, 1974 – Google Scholar

… 1970), cert. denied, Universal BuildersIncvClark, 400 US 821, 91 S.Ct. 40, 27 L.Ed.2d
49 (1970) … Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 235-236 (5th
Cir. 1970) … [1] The builder of the homes was Universal BuildersInc …

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Clark v. Universal Builders, Inc.

706 F. 2d 204 – Court of Appeals, 7th Circuit, 1983 – Google Scholar

… See Clark, 501 F.2d at 337-39 … V … [1] Because of our acceptance of the district court’s finding as
to lack of comparability, we need not reach defendants’ contention that the Deerfield homes were
sold by a company which was not a predecessor of the defendant Universal …

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Clark v. Universal Builders, Inc.

409 F. Supp. 1274 – Dist. Court, ND Illinois, 1976 – Google Scholar

… The Court of Appeals, in Clark vUniversal BuildersInc., 501 F.2d 324 (7th Cir. 1974), reversed
Judge Perry and accepted Judge Will’s “exploitation theory” of § 1982 … Clark vUniversal
BuildersInc., 419 US 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974)) …

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Shepardson v. MIDWAY INDUSTRIES, INC.

Dist. Court, WD Arkansas, 2019 – Google Scholar

… the classes’ FLSA and AMWA claims, the Settlement Agreement notes that Midway agrees to …
being allocated to settlement class members, $2,000.00 being allocated to Dale Shepardson
as a … See, eg, Thompson v. Costco Wholesale Corp., 2017 WL 697895, at *8 (SD Cal. Feb …

 

Shepardson v. MIDWAY INDUSTRIES, INC.

Dist. Court, WD Arkansas, 2019 – Google Scholar

DALE SHEPARDSON, Individually and on Behalf of All Others Similarly Situated Plaintiff,
vMIDWAY INDUSTRIESINC.; TOOL STEEL SERVICE, INC; and TOOL STEEL SERVICE
OF CALIFORNIA, INC., Defendants. Case No. 3:18-CV-3105 …

 

Gonzalez v. Firestone Tire & Rubber Co.

610 F. 2d 241 – Court of Appeals, 5th Circuit, 1980 – Google Scholar

610 F.2d 241 (1980). Herman GONZALEZ, etc., Plaintiff-Appellant, vFIRESTONE TIRE &
RUBBER CO. et al., Defendants-Appellees. No. 77-3170. United States Court of Appeals, Fifth
Circuit. January 21, 1980. 242 David T. Lopez, Houston, Tex., for plaintiff-appellant …

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Gonzalez v. Firestone Tire & Rubber Co.

512 F. Supp. 1101 – Dist. Court, ED Texas, 1981 – Google Scholar

… within 90 days of the second right to sue letter, and that it was an abuse of discretion to dismiss
the plaintiff’s Section 1981 claim because his neglect did not amount to a “`clear record of delay
or contumacious conduct.'” Gonzalez vFirestone Tire & Rubber Co., 610 F.2d 241 …

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Griggs v. SGE MANAGEMENT, LLC

905 F. 3d 835 – Court of Appeals, 5th Circuit, 2018 – Google Scholar

… If the district court had not dismissed the case, it is unlikely that the parties would have understood
that Grigg’s response to … district court was well within its discretion to dismiss this case for want
of prosecution in response to Griggs’s disobedience to … [1] See Torres vSGE Mgmt …

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Griggs v. SGE MANAGEMENT, LLC

Court of Appeals, 5th Circuit, 2018 – Google Scholar

… If the district court had not dismissed the case, it is unlikely that the parties would have understood
that Grigg’s response to … district court was well within its discretion to dismiss this case for want
of prosecution in response to Griggs’s disobedience to … [1] See Torres vSGE Mgmt …

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Maciel v. BAR 20 DAIRY, LLC

Dist. Court, ED California, 2018 – Google Scholar

… Bar 20 DairyLLC, a California limited liability company, Defendant, represented by Jared Hague,
Sutton Hague Law Corporation, PC, Joseph Vidal Macias, Sutton Hague Law Corporation, PC,
S. Brett Sutton, Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson …

 

Maciel v. BAR 20 DAIRY, LLC

Dist. Court, ED California, 2019 – Google Scholar

… Bar 20 DairyLLC, a California limited liability company, Defendant, represented by Jared Hague,
Sutton Hague Law Corporation, PC, Joseph Vidal Macias, Maxim Integrated Products, Inc., S.
Brett Sutton, Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson, Sutton …

Coleman v. Sweetin

745 F. 3d 756 – Court of Appeals, 5th Circuit, 2014 – Google Scholar

Freddie R. COLEMAN, Plaintiff-Appellant v. David SWEETIN; Gregory Oliver; Richard
Cowan; Roy Brown, Sued in his official and individual capacity; Shelia Dale, Sued in her official
and individual capacity; Mae Cobbs, Sued in her official and individual capacity; Debbie
Erwin, Sued in her official and individual capacity; Craig Fisher, Sued in his official and individual
capacity; Blake Lamb, Sued in his official and individual capacity; Unknown McManus, Sued
in her official and individual capacity; Brenda Hough, Sued in her official and individual …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

The lawsuit concerns the Plaintiff falling in the shower and his efforts to obtain medical care for
his injuries. The Plaintiff initially fell in the shower at the Eastham Unit trusty camp on June
14, 2009. He fell again in the same shower on June 20 and June 23, 2009. He testified that the
floor to the shower was slimy and unsafe. Before he ever fell, he submitted letters (“I-60s”) to
Maintenance Specialist Richard Cowan and Maintenance Supervisor Roy Brown about the conditions
in the showers, but they did not take steps to correct the problem. Wardens Sweetin and Oliver …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
was given twenty days from the receipt of the order to comply with it. He was informed that the
claims against McManus would possibly be dismissed if he failed to comply with the order. The
Court received an acknowledgment from the Plaintiff indicating that he received the order on
October 12, 2011. The Plaintiff was obligated to provide the current address for McManus by
November 1, 2011. He has not, however, provided her current address … On October 24 …

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Port of Houston Auth. v. INTERNATIONAL ORG. OF M., M. & P.

456 F. 2d 50 – Court of Appeals, 5th Circuit, 1972 – Google Scholar

… Bertram Perkel, New York City, Herman Wright, W. Arthur Combs, Houston, Tex., Schulman,
Abarbanel, Perkel … The exception sought by the Port Authority here is not within any existing
exception and is … freely to come with their vessels and cargoes to all places, ports and waters …

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Mosher v. KEANSTER

Dist. Court, SD Texas, 2010 – Google Scholar

Pending before the Court is pro se Plaintiff Gary Mosher’s (“Mosher“) motion for recusal.
(Doc. 36.) Also before the Court is pro se Defendant Douglas Jones’ (“Jones”) motion to dismiss
(Doc. 6), as well as Plaintiff Mosher’s response (Doc. 9) and Jones’ reply (Doc. 10). Although …

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Mosher v. KEANSTER

Dist. Court, SD Texas, 2010 – Google Scholar

Although Mosher’s motion for reconsideration requests relief pursuant to Rule 60 of the Federal
Rules of Civil Procedure, because Mosher filed his motion for reconsideration within twenty-eight
days of the Court’s order dismissing the case, the Court will apply the more liberal standard of …

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Mosher v. KEANSTER

Court of Appeals, 5th Circuit, 2011 – Google Scholar

The timing of Mosher’s notice of appeal raises an issue regarding this court’s jurisdiction, which
we must examine sua sponte. See Bailey v. Cain, 609 F.3d 763, 765 (5th Cir. 2010), cert.
denied, 131 S. Ct. 931 (2011). In a civil case, the filing of a timely notice of appeal is a jurisdictional …

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Mosher v. KEANSTER

Court of Appeals, 5th Circuit, 2009 – Google Scholar

We review a sua sponte dismissal for want of prosecution, which is authorized by Rule 41 of
the Federal Rules of Civil Procedure, for abuse of discretion. See McNeal v. Papasan, 842
F.2d 787, 789-90 (5th Cir. 1988). Because the judgment of dismissal did not specify whether …

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Dallas County, Tex. v. MERSCORP, INC.

2 F. Supp. 3d 938 – Dist. Court, ND Texas, 2014 – Google Scholar

Before the Court are the parties’ cross-motions for summary judgment filed November 12,
2013, on Plaintiffs’ request that this Court issue a declaratory judgment interpreting Section 192.007
of the Texas Local Government Code, the only remaining claim in this lawsuit. See Plaintiffs Harris …

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Coleman v. Sweetin

745 F. 3d 756 – Court of Appeals, 5th Circuit, 2014 – Google Scholar

Freddie R. COLEMAN, Plaintiff-Appellant v. David SWEETIN; Gregory Oliver; Richard
Cowan; Roy Brown, Sued in his official and individual capacity; Shelia Dale, Sued in her official
and individual capacity; Mae Cobbs, Sued in her official and individual capacity; Debbie
Erwin, Sued in her official and individual capacity; Craig Fisher, Sued in his official and individual
capacity; Blake Lamb, Sued in his official and individual capacity; Unknown McManus, Sued
in her official and individual capacity; Brenda Hough, Sued in her official and individual …

Cited by 147 How cited Related articles All 2 versions

Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

The lawsuit concerns the Plaintiff falling in the shower and his efforts to obtain medical care for
his injuries. The Plaintiff initially fell in the shower at the Eastham Unit trusty camp on June
14, 2009. He fell again in the same shower on June 20 and June 23, 2009. He testified that the
floor to the shower was slimy and unsafe. Before he ever fell, he submitted letters (“I-60s”) to
Maintenance Specialist Richard Cowan and Maintenance Supervisor Roy Brown about the conditions
in the showers, but they did not take steps to correct the problem. Wardens Sweetin and Oliver …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
was given twenty days from the receipt of the order to comply with it. He was informed that the
claims against McManus would possibly be dismissed if he failed to comply with the order. The
Court received an acknowledgment from the Plaintiff indicating that he received the order on
October 12, 2011. The Plaintiff was obligated to provide the current address for McManus by
November 1, 2011. He has not, however, provided her current address … On October 24 …

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Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will benefit from a comparison and contrast presentation related to the differences and similarities between the IVC Filter Litigation and the Emerging Surgical Stapler Litigation.  Contact Anne Marie Kopek by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

 

Will Defendants Fear of Additional Multi-Million Dollar Awards Lead to Mass Settlement?

The $33.7 Million jury verdict could potentially motivate Bard, Cook and Cordis to bring more to the settlement table when verdicts in the $3 Million range did not seem to provide adequate motivation. The fact that the Philadelphia Jury saw fit to award $33.7 Million should make all IVC Filter defendants realize that the next jury might award hundreds of millions or verdicts in excess of $1 Billion.

The threat of the “Billion Dollar Verdict” is a recent phenomenon in Mass Tort cases however, the fact that multiple juries in different mass litigations have handed down massive verdicts over the past several years, should make any defendant realize that a “Billion Dollar Verdict” is not a realistic possibility in any jury trial they face.

Moving forward, the IVC Filter defendants may prevail at trail in certain cases however, Plaintiffs have already demonstrated that they will prevail in a number of cases as well. The cumulation of multiple verdicts in the $3 Million Dollar Range, the $30 Million range and higher will rapidly add up to an amount that is greater than the amount these defendants could put on the table to settle these cases in mass. In addition to the foregoing, the defendant’s litigation costs for each case tried can easily reach the 7-figure range (Mass Tort Defense Counsel does not come cheap).

 

IVC Filter Litigation Settlement Progress

Rex Medical is a minor player in the IVC Filter market and therefore faces far fewer individual complaints than Cook, Cordis and Bard (now Becker Dickinson) however, there is little doubt that the three major players in the IVC Filter market took note of the verdict against Rex. Given the relatively small number of cases filed against Rex, this defendant may elect to continue allow cases to proceed to jury trials however, Cook, Cordis and Bard are in a very different position.

Settlement talks with Bard/ Becker Dickinson began as early as 10/30/15, however Becker Dickinson has yet to offer settlement terms acceptable to Plaintiffs Leadership and now face remand of Bard IVC Filter Cases. Becker Dickinson is not an “experienced” defendant in mass medical device litigation and this lack of experience may explain why the company may have overplayed their hand at the negotiating table a now face the prospect of remand and trial of potentially hundreds of individual Bard IVC Filter cases. On a side not, Kudos to the Bard IVC Filter MDL Plaintiffs leadership for sticking to their guns in vigorously fighting for all plaintiffs in the litigation.  The attorneys appointed to leadership in Bard MDL 2641 are to be commended.

Cook Medical, (MDL 2570) a privately held company, has settled numerous individual IVC filter cases but like Bard, has yet to offer settlement terms enough to resolve complaints in mass.

The majority of cases on file against Cordis (a Johnson and Johnson Company) are consolidated in in Alameda County California under Rule of the Judicial Council of California Civil Case Cordination Proceedings (JCCP).

Whether or not the $33.7 Million verdict handed down in the Rex case will motivate the major defendants to get serious about mass settlement is yet to be seen however, the verdict definitely gives plaintiffs more clout in the negotiations.

Learn the Business of Mass Torts, How to Avoid Getting Screwed in an MDL, the Behind-the-Curtain Information on Taxotere, Truvada, Hernia Mesh, and Other Emerging and Current Litigations… Register Today for the Only Mass Tort Immersion Course.

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error). It is better to learn from the mistakes of others than to make those same mistakes yourself.

If you are interested in working smarter versus harder, and achieving the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to register for the November course. You may also call or email Barbara Capasso or Anne-Marie Kopek at 954-530-9892, email barbara@masstortnexus.com or annemarie@masstortnexus.com

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Understanding the Expanding Talcum Powder and Asbestos Litigation

The original Asbestos litigation began with a small number of defendants and grew to become the largest product liability litigation in history. MTN believes the Talcum Powder litigation may expand in similar manner. This article will focus on potential retailer liability in the expanding Talcum Powder litigation.

If you did not read our prior article, click here to get up to speed: Will the Recall of J&J Baby Powder Breathe New Life into Asbestos Litigation?

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will receive and in depth presentation as well all of the information needed, including Qualifying and Disqualifying criteria, to start accepting Talcum Powder Mesothelioma Cases as well as other types of Talcum Powder clients.  Contact Anne Marie Kopek by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

 

RECENT BACKGROUND

On October 18, 2019, the FDA announces that Johnson and Johnson has recalled a single lot of its Talcum powder after https://www.fda.gov/news-events/press-announcements/baby-powder-manufacturer-voluntarily-recalls-products-asbestos

“Since 2018, the FDA has been conducting an ongoing survey of cosmetic products for asbestos and to date has tested approximately 50 cosmetic products. As part of this testing, two samples of Johnson’s Baby Powder were tested: one sample from lot #22318RB was found to be positive for asbestos a second Johnson’s Baby Powder sample, lot #00918RA, tested negative for asbestos.”

 

LIVE TESTING HAND GRENADES

The FDAs method of testing sample from individual lots of Baby Powder is akin to pulling the pin on a sample of hand grenades from a box, and determining that the entire box are all “duds” because no grenade from which the pin was pulled blew up and killed everyone in the room.

The only way to be certain that any given bottle of baby powder sitting on a retail shelf or on the bathroom counter of a Talc user is completely free of asbestos would be to test every single bottle.

 

FEELING LUCKY?

 

RETAILERS PULL SOME TALCUM POWDER FROM SHELVES

After the FDA announced the single lot voluntary recall of one lot of J&J Talcum Powder, major retailers, including Walmart, Target, CVS and Right aide began pulling 22-ounce bottles of J&J Talc from their shelves. The recall involved this size bottle of Talcum Powder.

https://www.cnbc.com/2019/10/24/cvs-pulls-all-jj-22-ounce-baby-powder-from-shelves-after-fda-finds-sub-trace-levels-of-asbestos.html

 

HOW DO THESE RETAILERS KNOW THAT OTHER SIZE BOTTLES DO NOT CONTAIN ASBESTOS?

The short answer to the above question is that retailers have no means by which to know if the Talcum Powder remaining on their shelves, do not also contain asbestos.

Although retailers are already potentially liable under a “Strict Liability”  theory form simply conveying these products into the stream of commerce, one could argue, that with all that is now known, these retailers crossed the line into “negligent liability” when they failed to pull all Talcum Powder products from

Putting Aside the evidence that Talc itself can cause cancer, including but not limited to Ovarian Cancer, this article will focus on why every retailer that offers Talc Products should know that it is more likely than not, that every bottle of Talc they sell, contains asbestos and why retailers should assume the foregoing to be true.

 

Understanding the Link Between Talc and Asbestos

Asbestos is a commercial name assigned by industry to a group of minerals. The most common type of asbestos found in commercial products is Chrysotile Asbestos.

Both Talc and Chrysotile Asbestos are formed from the same four basic elements. Magnesium (8th most common element in the Earths rust) , Silicon (Most Common Element in the Earths crust)  Hydrogen and Oxygen (in the form of water).

The elemental structure of Talc and Chrysotile Asbestos are nearly identical.

Talc Mineral: Mg3Si4O10(OH)2

Chrysotile Asbestos:  Mg3Si2O5(OH)4 (most common type of asbestos in commercial use)

All that is required for given Talc deposit to initiate formation of asbestos as well, is a change in the temperature of the water supply necessary for the formation of both minerals. It may be useful to think of the earth crust as a “mineral factory”. The same individual factories (deposits) that produce Talc can also produce Chrysotile Asbestos, all that is required for the naturally occurring Talc factor to being producing Chrysotile Asbestos is for someone (something) to change the thermostat.

Talc and Chrysotile Asbestos deposits form over thousands and in some cases, over millions of years. Earth is a highly thermodynamic planet, the temperature of any given water supply found in the earths crust if far more increase and decrease over these long periods of time versus remaining stable.

In that it is unlikely that any naturally occurring Talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there is no practicable and economical means by which to separate Asbestos from Talc, it is reasonable to conclude that, it is more likely than not, that all Talc contains Asbestos.

Given that the foregoing is basic science and geology, easily understood by any high school student, it would be difficult for any retailer of Talcum Powder products to claim ignorance of the fact that it is highly probable that any given bottle of Talcum Powder on their shelves, likely contains Asbestos.

Which Grenade is live and which one is a dud?  Nobody knows. Would you want to be the one to pull the pin and find out?

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Will the Recall of J&J Baby Powder Breathe New Life into Asbestos Litigation?

Will the Johnson and Johnson Talcum Powder Asbestos issue breath new life into “Asbestos Mesothelioma Practice Area”? The events of the past few days may lead one to believe that it is very possible that the need for plaintiffs lawyers to represent mesothelioma victims who allege their cancer was caused by Johnson and Johnson Talcum Powder, may breath new life into a practice area that was in decline.

On October 18, 2019 the FDA Announced” Johnson’s Baby Powder voluntarily recalled after testing positive for asbestos: Johnson & Johnson voluntarily recalled one lot of baby powder, after a sample tested positive for asbestos. The recalled product is Johnson’s Baby Powder Lot #22318RB. The lot number can be found on the back of the bottle, directly underneath the cap. https://www.fda.gov/cosmetics/cosmetics-recalls-alerts/fda-advises-consumers-stop-using-certain-cosmetic-products.

The FDA is inspecting other lots of Johnson & Johnson talcum powder and MTN expects further recalls to be forth coming.

Does the Problem End With A Single Lot?

Johnson & Johnsons problems are not likely to end with one or even a few recalled lots of baby powder.

It may (likely will be) possible to prove that Johnson & Johnson products, sold at specific retail locations over the past few decades contained asbestos. So, no, it is not likely that Johnson & Johnsons problems arising from a small number of recalled lots will represent the extent of their potential liability.

Would You Like to Be Ahead of the Curve This Time?

Attendees of the Mass Tort Nexus Four Days to Mass Tort Success Course (Friday, November 8 – Monday, November 11, 2019)  will receive and in depth presentation as well all of the information needed, including Qualifying and Disqualifying criteria, to start accepting Talcum Powder Mesothelioma Cases.  Contact Anne Marie Kopek a by email at annemarie@masstortnexus.com, or call her at 954-837-3432 for more information. You may also request course information by filling out the form at https://www.masstortnexus.com/Course/Enroll.

Qualifying (or disqualifying) Talc Mesothelioma cases will be particularly challenging given that the disqualifying factors are more numerous that the qualifying factors however, considering the likely jury verdicts that may arise from meritorious, Talc Mesothelioma cases are worth the extra effort. The average Mesothelioma verdict comes in at approximately $2.4 million and the largest Mesothelioma Verdict Mass Tort Nexus is aware of to date was $250 million. Given the b

Not all-natural Talc deposits contain asbestos. The geological circumstances under which the talc was formed, determine whether any given Talc deposit also contains asbestos. Mass Tort Nexus will provide November Course attendees with the information they need to determine whether an individual potential client used Talc likely sourced from a mine containing asbestos.  In most cases, it should be possible to determine if an individual was exposed to Talc containing asbestos even if the exposure occurred decades in the past.

Does the Stock Market Think the Problem Ends with a Single Lot?

On October 8, the market got the news that Johnson & Johnsons was hit with an 8-Billion-dollar verdict, the pharma giants stock took a down word turn.

On October 15th Johnson & Johnson announced 3rd quarter results that exceeded market expectations and their stock began to trend upward.

On October 18th, the FDA announces the recall of a single lot of Johnson & Johnson Talcum Powder.  By 3:50 pm the Pharma Giants stock had dropped by 5.89% and by 4:00 (closing bell) the stock had sunk by 6.23% to $127.72 per share as compared to the previous day’s closing price of $136.18.  If we have our math right, Johnson & Johnson took a hit to their market capitalization of around $18 billion, in a single day, after the FDA recall of a single lot of Johnson and Johnson Baby powder due to asbestos found in the individual lot.

So, no, it does not appear that the market believes that Johnson and Johnson’s Talc/ Asbestos problem begins nor ends with a single recalled lot and if you are a plaintiffs lawyer, you may want to get ahead of the curve on the new breath of life that may have been given to the asbestos mesothelioma practice area.

 

 

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Mass Tort Billionaires

 

Mass Tort Billionaires

What do they know that you don’t?

 

Fact: Mass Torts have made more plaintiff lawyers billionaires (or billionaire adjacent) than any other practice area.

Myth: Most Mass Tort billionaires made their money from the massive trial verdicts we hear about in the news (RoundUp, Talcum Powder etc.).

Fact: The majority of Mass Tort billionaires (or billionaire adjacent) did not reach this lofty status from major trial verdicts, they built their practice over time, accumulating the knowledge and skills required to independently evaluate a mass tort litigation before taking a financial risk.

Most Successful Mass Tort Firms Learned by Trial and Error

There is an easier way!

The Mass Tort Nexus Four Days to Mass Tort Success Course gives you the knowledge, information and skills that current “mass tort insiders” learned the hard way (trial and error).  It is better to learn from the mistakes of others, than to make those same mistakes yourself.

You may not be willing to take the risk required to become a “mass tort billionaire”, however, if you are interested in working smarter vs harder and reaching the financial goals you have set for yourself and your firm, the Four Days to Mass Tort Success Course is the place to start. Click on the image below to get more information about the September Course.

You may also simply call or email Barbara Capasso or Anne Marie Kopek at 954-530-9892, email- barbara@masstortnexus.com or annemarie@masstortnexus.com

How Most Lawyers Get Started in Mass Torts

One Lawyer, we will call him Mr. Mass Tort Big Bucks, gives another lawyer, we will call Mr. Mass Tort Outsider, an inside tip on a great new mass tort in which Mr. Big Bucks is involved. Mr. Outsider takes the tip and runs with it.

One of two things happen:

Scenario A: The litigation does South and Mr. Outsider thinks “Mass Torts is just a big gamble”, I am never doing that again.

Scenario B: The litigation pays off big and Mr. Outsider becomes overly optimistic, thinking, “Wow this Mass Tort thing is great”, I am going to bet on every new case that come along.

Neither Scenario Is Good for Mr. Outsider

In Scenario A, now “mass tort pessimistic” Mr. Outsider is likely to take himself out of the game (mass tort plaintiff law) that has created more plaintiff lawyer billionaires than any other practice area.

In Scenario B, now “mass tort overly optimistic” Mr. Outsider is likely to throw money at every mass tort litigation that comes along and is at risk of eventually losing his shirt.

  1. Big Bucks, who is already sold on a litigation, is not an objective source of information.
  2. Big Bucks can probably afford to lose money that Mr. Outsider may not be able to afford to lose.

Become a Mass Tort Insider!

Instead of relying on tips from other lawyers or the mass tort rumor mill, gain the “insider knowledge“ that will allow you to evaluate mass tort litigation’s objectively. The next time you get a tip from another lawyer, have the information and knowledge that will allow you to do your homework before taking a leap into a mass tort litigation.

The course starts at the most basic level, discussing the difference between Class Actions and Multi-district Litigation and then progresses to providing the tools needed to evaluate the “metrics” relevant to all mass tort litigation’s which need to be considered before taking a financial risk. The basic metrics (below) are explained in detail before the course progresses to how firms can apply these metrics to make decisions and develop strategies that lead to success.

 

On the third day of the course, lead litigators step in and give presentations on various mass torts in which they are currently involved. Course attendees will be armed with the knowledge developed in the first two days of the course, to ask the lead litigators informed questions and use the metrics and other information they have gained thus far in the course to make decisions about which litigation they may be interested in.

The relatively small class size allows course attendees to interact with the lead litigators in the classroom as well as during the outside activities “up close and personal”.

What do past course attendees have to say?

 

 

Visit our YouTube Channel to hear what other past attendees have to say about the course.

https://www.youtube.com/channel/UC8I9zGYo3YC5BhulgxthCOw/videos

 

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Xarelto Settlement Not So Fast Gentlemen

Those Aggrieved by the Proposed Xarelto Settlement

May Still Get a Chance to be Heard

Thus far firms representing absent plaintiffs (those not represented by leadership) have yet to be given an opportunity to be heard by the court regarding any aspect of the proposed Xarelto settlement.  I previously addressed this issue in another article.

https://www.masstortnexus.com/mass-torts-news/xarelto-settlement-judicial-activism-vs-judicial-tyranny/

Due Process Refresher 

The Fifth and Fourteenth Amendments to the United States Constitution each contain a due process clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses broadly, concluding that these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process.

The core of these requirements is notice and a hearing before an impartial tribunal.

Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result.

Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

Picking Up Where We Left Off

Without Regard to the points made in the prior article, even if the proposed Xarelto settlement agreement reaches the required participation numbers, it should not be a done deal. For Judge Fallon to grant specific common benefit fee requests, it will arguably be necessary to form a “Settlement Class Action” under FRCP 23. Once this occurs, his honor will not have the option of ignoring FRCP 23(e), the requirement to conduct fairness hearings before final approval of the settlement. This will be the time at which firms representing absent plaintiffs may get their chance to be heard and I believe these firms will have much to say.

If Judge Fallon allows the proposed Xarelto settlement to impact plaintiffs, without ever having engaged in any act to protect the rights of absent parties, this egregious failure may well define his legacy, overshadowing and otherwise admirable judicial career.

Note: Nothing would prevent a firm representing a non-settling client from moving to form a Class Action for non-settling plaintiffs, aggrieved by the settlement.

Due to the fact that the proposed Xarelto Settlement did not follow the “opt in” reasoning (see article by Judge Fallon below), the only way the necessity of creating a settlement class could be avoided would be if 100% of all Xarelto plaintiffs accepted the settlement. Even under this circumstance, jurisdictional issues would still exist. I will address this subject more thoroughly later in this article.  First, I will cover recent developments.

Latest Spin on the Xarelto Settlement

I have learned that leadership claims that 26,000 enrollment packages have been received by Brown Greer and they are very confident that they will reach 98% participation. MTN can not verify leaderships statements with Brown Greer as they seem to have been gagged by leadership. Regardless, the proposed settlement only covered 25,000 plaintiffs. The total number of complaints on file in the MDL and Philadelphia Court of Common Pleas has ballooned to over 31,339 plaintiffs since the proposed settlement was first announced. The foregoing begs the question “98% of what”.  26,000 is 82.96% of 31,339. If we take leadership at their word and believe 26,000 plaintiffs have accepted the settlement, then we must assume that the settlement is going to include more than 25,000 plaintiffs and base on “participation calculus” on the total number of cases on file, which is at least 31,339.

Settling 26,000 cases would leave 5339 remaining. I do not believe that the defendants can sell a settlement to their stockholders that leaves 5339 cases (unknown risks) unresolved.

A reliable source has informed me that the “98% participation claim” was based on 98% of the 70% of plaintiffs that have returned the enrollment package, not 98% of all plaintiffs. Maybe leadership is counting on using the “dismissal machine” they have arguably created in co-operation with defense, to get rid of the non-enrollers and therefore do not think these plaintiffs need be counted.

Though I can not verify the foregoing (Brown Greer gagged), I believe the 26,000-enrollment number may be significantly exaggerated or at minimum skewed. Leading non leadership firms to believe the proposed settlement will consummate would be a good way to get firms reluctant to encourage plaintiffs to except the settlement to change course. A self-fulfilling prophecy (stated as fact) if you will.

The Chance and Right to be Heard

I stated, in the previous article (link above) that Judge Fallon arguably lacks subject matter jurisdiction to issue orders related to an MDL settlement. I also stated that since Judge Fallon is an MDL judge that subscribes to the MDLs as Quasi  Class Actions theory and therefore should have held FRCP 23(e) fairness hearings before or currently with issuing in order related to settlement as His Honor did in Vioxx and other MDLs in the past.

Putting aside the above, absent Xarelto plaintiffs (those not represented by leadership firms) may still have a chance to be heard.

How an MDL Judge can properly involve  themselves in settlement:

  1. Plaintiff Leadership and Defense reach a settlement agreement without seeking orders from the court.
  2. Plaintiff Leadership presents the settlement to firms representing absent plaintiffs and if enough those plaintiffs opt into the settlement to meet the required participation threshold, then the settlement can be consummated (only for those that opted in).
  3. Only after the foregoing, would it be proper for the court to become involved. Plaintiff Leadership and Defense can present the consummated agreement (with all opt ins) to the Judge and seek to form a Settlement Class Action (under FRCP 23).

Obviously the ship has sailed with regard to Judge Fallon conducting FRCP 23(3) fairness hearings before or concurrently with issuing orders related to settlement however, it would be inconceivable for His Honor to issue orders granting specific Leadership and PSC Firms common benefit fees without a “Settlement Class Action” being formed.

Why? Without a Settlement Class Action in place, Judge Fallon will have no control over or authority to grant any order related to the global proceeds of the mass settlement.

The Opportunity to Be Heard- Finally?

If the proposed Xarelto Settlement reaches the required participation numbers and is consummated, Judge Fallon will only be able to take control of the global proceeds (in order to grant common benefit fees) via a Settlement Class Action. This will be the point at which firms representing absent plaintiff firms will (as required FRCP 23(e) to be heard). If Judge Fallon neglects to conduct fairness hearings before granting fees, an appellate court is likely to overturn any order granting common benefit fees.

The link below is from a 9th Circuit in the Hyundai Kia MDL. A settlement was reached in this MDL and a Settlement Class Action was granted by the MDL Judge. Suit was filed by firms representing absent plaintiffs related to the common benefit fees awarded arising from the settlement. The

https://www.consumerfinancialserviceslawmonitor.com/wp-content/uploads/sites/501/2019/06/In-re-Hyundai.pdf

Excerpts from Ruling:

On December 23, 2013, the settling parties sought preliminary approval of the nationwide class settlement and moved to certify a settlement class. The district court ordered multiple rounds of briefing concerning the fairness of the settlement, sufficiency of the class notice, the claims process, class certification, choice of law, and other issues. At four hearings held between December 2013 and August 2014, the parties addressed concerns raised by the court sua sponte as well as by objectors and other non-settling plaintiffs. In response to these concerns, the settling parties twice revised the settlement agreement and notice provisions.

After issuing several detailed written rulings, the district court granted preliminary approval of the settlement and certified the class for settlement purposes on August 29, 2014. The court appointed Hagens Berman and McCuneWright as settlement class counsel. In September and October 2014, the district court held four additional hearings, at which it requested that the parties make additional changes to the settlement notices and website, such as adding information about the Reimbursement Program, and rewording the notices to make them easier to understand.

A binding settlement must provide notice to the class in a “reasonable manner” and otherwise be “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1), (2)

Before the district court approves a class settlement under Rule 23(e), it is “critical” that class members receive adequate notice. Hanlon, 150 F.3d at 1025. To satisfy Rule 23(e)(1), settlement notices must “present information about a proposed settlement neutrally, simply, and understandably.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 962 (9th Cir. 2009). “Notice is satisfactory if generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.’” Id. (quoting Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)).

Rule 23(e) ensures that unnamed class members are protected “from unjust or unfair settlements affecting their rights.” Amchem, 521 U.S. at 623 (1997).

Over the course of several years, the district court performed an admirable job of managing this complex litigation. After the settlement was announced, the district court held multiple status conferences and requested several rounds of briefing to ensure that all of the litigants’ concerns were heard and addressed.

Note: The 9th circuit ruling leave little doubt that had the settlement court failed to comply with FRCP 23(e), that courts grant of attorney’s fees  to “Class Counsel”  would not have withstood appeal.

End Excerpts

 

 

Moving Forward -Two Possible Outcomes

  1. Judge Fallon moves forward with a settlement class (if the settlement consummates) without the required FRCP 23 (e) fairness hearings, in which case any grant of common benefit fees arising from the court would likely be overturned on appeal.

 

  1. Judge Fallon moves forward with a settlement class and does (as required) conduct fairness hearings per FRCP 23(e). Although belated, this would give firms representing absent class members to object to the terms of the settlement as well as any common benefit fees being awarded from the settlement proceeds. Even those plaintiffs that rejected the settlement or were subject to dismissal arising from a settlement related order would arguably have standing (the right to be heard).

 

  1. Leadership Self-Dealing (subject of a future article).
  2. Leadership Conclusion with defense to create a “dismissal machine.
  3. Unwarranted Discounts.
  4. Overly Complex processes created by settlement orders, leading to denial of due process.
  5. Settlement related orders issued absent jurisdiction over the subject matter.

The article below, written by Judge Fallon

COMMON BENEFIT FEES IN MULTI-DISTRICT LITIGATION

https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/mdl2014/Common_Benefit_Fees.pdf

By: The Honorable Eldon E. Fallon

Note:. In the article, Judge Fallon, as he has on numerous occasions, referred to “private mass tort settlements” as opt in (vs class actions which are opt outs). His Honors reference to these settlements as Opt In vs Opt Out seems to imply that his jurisdiction over settlement arises from the agreement of the parties that Opt In. By Implication this would mean that any party that does not opt in should not be negatively impacted by the given settlement. This has obviously not held true in the proposed Xarelto Settlement.

The following excerpt from the article by His Honor express the same view he expressed in Vioxx, which involved a settlement very similar to the proposed Xarelto Settlement (with 4 billion additional dollars for roughly the same number of plaintiffs) . In Vioxx, Judge Fallon conducted the Rule 23(e) hearing he references below to allow absent plaintiffs a voice in the settlement. I have yet to discern why His Honor believes Xarelto plaintiffs are less deserving of due process than Vioxx Clients.

Excerpt

The argument used by the courts supporting their equitable authority to review attorneys fees is that Rule 23 of the Federal Rules of Civil Procedure expressly provides that a district court presiding over a class action has a duty to scrutinize the attorneys fees of class counsel to assure that they are reasonable. The transferee judge in MDLs should have the same responsibility because MDLs are quasi class actions since their purpose and function is the same as the traditional class action namely efficiency and coordination before a single court. Furthermore, many MDLs contain multiple class actions along with the individual claims and it is not unusual to utilize the settlement class vehicle provided by Rule 23(e) to resolve the entire Thus Rule 23 is often an integral part of the MDL process.

End Excerpt

 

Has Judge Fallon Became to Chummy with Xarelto Leadership?

Just out of curiosity I have submitted a Form A0 10A to the Judicial Committee on Financial Disclosures, requesting Judge Fallon’s financial disclosures for 2013-2018. I already have copies of his disclosures through 2012 and His Honor discloses that his travel and other expenses are paid by third parties when he attended conferences 2012 and prior. I am curious to find out if MTMP paid Judge Fallon’s expenses when he attended MTMP conferences over the past few years. Paying for trips to lavish resorts in sin city for a Federal Judge before whom a firm currently has matters subject to litigation, is something I find worth exploring.

 

Required Reading for those wanting to improve their knowledge of all things MDL settlement.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

But this book, it may shock even the most cynical!

https://www.amazon.com/Mass-Tort-Deals-Bargaining-Multidistrict-ebook/dp/B07S7DMN7Z

By: Elizabeth Chamblee Burch

Elizabeth Chamblee Burch is the Fuller E. Callaway Chair of Law at the University of Georgia. Her teaching and research interests include mass torts, class actions, and civil procedure. She has been a Visiting Professor at Harvard Law School.

Other worthwhile reading authored by Professor Burch:

Monopolies in Multidistrict Litigation

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2113&context=fac_artchop

Repeat Players in Multidistrict Litigation

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4737&context=clr

DISAGGREGATING

https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6002&context=law_lawreview

Judging Multidistrict Litigation 

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1993&context=fac_artchop

Morphing Case Boundaries in Multidistrict Litigation Settlements

By: Margaret S. Thomas

http://law.emory.edu/elj/_documents/volumes/63/6/responses/thomas.pdf

About Professor Thomas: https://www.law.lsu.edu/directory/profiles/margaret-s-thomas/

 

Once Size Doesn’t Fit All: Multidistrict Litigation, Due Process and the Dangers of Procedural Collectivism

http://www.bu.edu/bulawreview/files/2015/02/REDISH.pdf

By: MARTIN H. REDISH & JULIE M. KARABA

Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at the Northwestern University Pritzker School of Law. Redish has written 19 books and over a hundred law review articles in the areas of civil procedure and constitutional law.

About Professor Redish: http://www.law.northwestern.edu/faculty/profiles/MartinRedish/

Julie Karaba (Siegal is) currently a Clerk for Chief Justice John Roberts, United States Supreme Court.

https://www.sesp.northwestern.edu/news-center/news/2018/03/sesp-alumna-to-clerk-for-chief-justice-of-the-united-states-john-g.-roberts,-jr..html

 

Judicial Review of Private Mass Tort Settlements

By: Jeremy T. Grabill

https://scholarship.shu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1418&context=shlr

About Jeremy Grabill: https://www.phelps.com/jeremy-grabill

TAKING A SECOND LOOK AT MDL PRODUCT LIABILITY SETTLEMENTS: SOMEBODY NEEDS TO DO IT

https://kuscholarworks.ku.edu/bitstream/handle/1808/25557/Mueller_FINAL.pdf;jsessionid=DFE28872C148C01DAF73FED1CD91E292?sequence=1

By: Christopher B. Mueller

About Professor Mueller: https://lawweb.colorado.edu/profiles/profile.jsp?id=38

 

DUBIOUS DOCTRINES: THE QUASI-CLASS Action

https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1095&context=uclr

By: Linda S. Mullenix

 

AGGREGATE LITIGATION AND THE DEATH OF DEMOCRATIC DISPUTE RESOLUTION

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1063&context=nulr

Also by: Linda S. Mullenix

About Professor Mullenix: https://law.utexas.edu/faculty/linda-s-mullenix

Books by Professor Mullenix: https://www.amazon.com/Linda-S.-Mullenix/e/B001HML766

Managing Related Proposed Class Actions in Multidistrict Litigation

https://www.fjc.gov/sites/default/files/materials/21/Managing_Related_Proposed_Class_Actions_in_Multidistrict_Litigation.pdf

By: Catherine R. Borden

Government of the United States of America – Federal Judicial Center

GLOBAL SETTLEMENTS IN NON-CLASS MDL MASS TORTS

https://www.fjc.gov/sites/default/files/materials/21/Managing_Related_Proposed_Class_Actions_in_Multidistrict_Litigation.pdf

 

https://law.lclark.edu/live/files/25156-saackreadyforwebsitepdf

By: Amy L. Saack

About Amy Sacck: http://www.davisrothwell.com/attorney/amy-saack/

 

 

STANDARDS AND BEST PRACTICES FOR LARGE AND MASS-TORT MDLS

BOLCH JUDICIAL INSTITUTE, DUKE LAW SCHOOL

https://judicialstudies.duke.edu/wp-content/uploads/2018/10/standards_and_best_practices_for_large_and_mass-tort_mdls-Bolch-Judicial.pdf+

 

Disclaimer: The author of this article, John Ray, is not an attorney. Nothing in this article should be considered legal advice. The opinions expressed in this article are those of John Ray. Publication of this article by any third party should not be considered endorsement of nor agreement with the opinions expressed by the author.

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Xarelto Settlement Judicial Activism vs Judicial Tyranny

Xarelto Proposed Settlement 

The death MDL settlements as we know and love them?

 

Foreword: Non leadership firms representing Xarelto plaintiffs facing potential dismissal from orders issued related to the proposed Xarelto settlement might find this article very beneficial.

Although it is still doubtful that the proposed Xarelto settlement will consummate, it appears that Judge Fallon is set to dismiss individual cases for failure to comply with orders arising from the proposed settlement. Such dismissals would arguably be ripe for appeal.

Spoiler Alert: MDL Judges arguably Lack Subject Matter Jurisdiction to issue orders arising from MDL settlements. Any case dismissed for failure to comply with an order issued absent jurisdiction over the subject matter giving rise to the order, would also be a juridical act undertaken without proper jurisdiction. Parties can not wave Subject Matter Jurisdiction, by act nor agreement. There is no time limit to file an appeal related to an order issued in the absence of jurisdiction over the Subject Matter. Orders issued lacking subject matter jurisdiction  are null from the onset and void on their face. Res Judicata does not apply to orders issued in want of jurisdiction over the subject matter.  See Citations of Relevant Law at the end of this article).

The Road to Hell and Good Intentions 

Certain well intended MDL Judges, including Judge Eldon Fallon have subscribed to the theory that “MDLs are Quasi Class Actions” and despite the fact the USC 1407 provides MDL judges with no jurisdiction to participate in MDL settlements, MDL judges could none the less exercised the powers of their court and involved themselves in MDL settlements, reasoning that MDLs are merely Quasi Class Actions. MDL judges ascribing to the “MDLs as Quasi Class Actions” theory have reasoned intra alia that  Federal Judges have jurisdiction over Class Action Settlements and therefore Federal Judges presiding over MDLs (Quasi Class Actions by their  reasoning) have the same jurisdiction as a Federal Judge Presiding over a Class Action, so long as they comply with the requirements of FRCP 23, in particular the requirements of FRCP 23(e) .

MDL Judges willing to arguably overstep their jurisdiction and exercise the power of their courts in MDL settlements, have justified doing so by  simultaneously complying with duties imposed under FRCP 23(e).

FRCP 23(e) requires Federal Judges presiding over Class Actions to conduct fairness hearings and approve any Class Settlement. These fairness hearings are intended in part to provide class action “absent plaintiff parties” protection from would be unscrupulous self-dealing lead class counsel.

Xarelto Settlement Where Activism turned to Tyranny 

Prior to the Xarelto Settlement, all MDL judges who have inserted themselves into MDL settlements have complied with FRCP 23(e) by conducting fairness hearings to allow parties not represented by plaintiffs leadership a voice before imposing any order related to the settlement that might negatively impact any absent plaintiffs case. Judge Fallon conducted extensive fairness hearings in the settlement of the Vioxx litigation. For reasons unknown to the author, Judge Fallon apparently does not view Xarelto plaintiffs as being deserving of the same protections provided Vioxx plaintiffs.

Although Quasi Class Actions do not actually exist, (MDLs are not Quasi Class Actions) and MDL judges arguably have no jurisdiction to involve themselves in MDL settlements, the Judicial Activism undertaken by Quasi Class Actions MDL judges has arguably been beneficial to defendants as well as plaintiffs desiring efficient mass settlement. Neither defendants nor plaintiffs have complained in the past however, Judge Fallon’s failure to conduct fairness hearings related to the proposed Xarelto Settlement may result in an end to the long running gravy train of MDL settlements achieved by activist MDL Judges willing to overstep their jurisdiction to assist parties in effectuating settlement.

In addition to failing to conduct fairness hearings related to the proposed Xarelto settlement, Judge Fallon also appears to be set to dismiss individual plaintiffs’ cases for failure to comply with orders arising from the settlement. These  orders were arguably issued absent jurisdiction over the subject matter. Any future order arising from the settlement orders, including an order dismissing a case for failing to comply with the settlement related orders, would also be issued without jurisdiction over the subject matter.

Appeals arising from the forgoing, may result in the creation of case law that puts an end to MDL judges inserting themselves into MDL settlements, making reaching mass settlement in MDLs a far more difficult task.

It should be noted I (John Ray) hold Judge Fallon in high esteem. I believe Judge Fallon is wise and fair minded. Despite the foregoing, even wise and fair-minded Judges can err.  I do not view Judge Fallon as a tyrant in general however, acts of tyranny are acts of tyranny, without regard to the general character of those that commit the acts.

 

Back Ground

MDL Judges presiding over Class Actions (FRCP 23) not only have jurisdiction over settlement, Judges presiding over Class Actions have a duty to insure than any proposed settlement is fair to all parties including “absent” parties. FRCP 23(e) Requires Judges presiding over Class Actions to conduct fairness hearings, and rule on the fairness of a class action settlement.

Rule 23(e) is the only safeguard provided to absent class members under Rule 23, protecting these vulnerable parties from self-dealing class action lead counsel that might be inclined to act to the common detriment of absent class members vs the common benefit of those absent parties.

Conversely USC 1407, passed by Congress in 1968, formerly codifying Multidistrict Litigation as a means by which very Federal Jurisdiction can be imposed, provided no jurisdiction for MDL judges to oversee, assist in, issue orders related to or arising from, mass settlement. Additionally, USC 1407, having extended no “settlement jurisdiction” to MDL judges also provided no protection from would be self-dealing lead counsel in MDLs that might act to the common detriment of absent plaintiffs (those not represented by leadership firms).

How Can This Be?

Common Misconception: MDL Judges Have Jurisdiction of the Subject Matter as Well as Personal Jurisdiction to oversee or enter orders to assist mass settlement.

Jurisdiction over the Subject Matter: Arguably does not exist!

Personal Jurisdiction: Arguably does not exist, except for cases that arose in the MDL Courts home State and then only if that court would otherwise have jurisdiction.

Wait a Second!

Wait a Second – MDL Judges frequently involve themselves in MDL mass settlements, how do they justify acting in excess of their Jurisdiction? How could the question of these judges jurisdiction over MDL settlement remained unresolved?

No party to an MDL to date,  has been so aggrieved by an MDL Judges overreach on settlement to force higher courts to deal with the issues. The Xarelto settlement is likely to change the foregoing.

 

The Birth of MDLs as Quasi Class Actions

Judge Jack B. Weinstein, presiding over the Zyprexa Litigation (MDL 1596), was the first MDL Judge (that we are aware of) to presume jurisdiction over settlement matters in Multidistrict Litigation under the “MDLs as Quasi Class Actions“ theory.

Weinstein reasoned that MDLs are “Quasi Class Actions” and cited (inter alia), his inherent authority under the “All Writs Act 28 U.S.C 1651” as providing him “inherent authority” over MDL settlements.

Judge Eldon Fallon, while presiding over the Vioxx Litigation, llowing Judge Weinstein’s Quasi Class Actions theory exerted his self-claimed inherent authority to wade into settlement of that litigation. Other MDL Judges (but not all) have also subscribed to Judge Weinstein’s “MDLs as Quasi Class Actions” theory.

Judge Eldon Fallon in Vioxx, as well as other “MDLs as Quasi Class Action  Judges” have reasoned that their involvement in MDL settlements is equitable, so long as the provisions of FRCP 23(e), are observed.  FRCP 23(e) is intended to provide protection from would be self-dealing lead Class Counsel. FRCP 23(e) obligates Federal Judges overseeing Class Actions to conduct fairness hearings (giving absent class members a chance to be heard) as well as rule on the fairness of any propose class settlement prior to approving the settlement and issuing any order related to the settlement that might negatively impact any individual plaintiff.

Judge Fallon in Vioxx as well as other “Quasi Class Action MDL judges” prior to the current Xarelto settlement have in fact held fairness hearings per FRCP 23(e) in all MDL mass settlements in which the court has involved itself via settlement related orders or other oversight.

Judge Fallon did not conduct fairness hearings before issuing orders related to the Xarelto settlement.

These “fairness hearings” are intended (according to “Quasi Class Action MDL judges”) to provide extend the protections provided absent parties in Class Action to absent parties in MDLs. In the MDL context “absent parties” would be all plaintiffs not represented by plaintiff’s leadership (retained by the leadership firms)

Why Do Xarelto Plaintiffs deserve Less Judicial protection than Vioxx Plaintiffs?

Only Judge Fallon could explain why he neglected to follow his own past reasoning (the requirement to conduct fairness hearings) and denied absent Xarelto Plaintiffs the same rights and protections as Vioxx plaintiffs.

Although the proposed Xarelto settlement is repeatedly referred to as a “Private Settlement” (extra udicial) reach by the parties, the label is inaccurate. The settlement was reached after negotiations between defense counsel and plaintiffs’ leadership. Plaintiffs leadership is not a party, nor do they represent any party (plaintiff) other than those retained by their respective firms.

Furthermore, the proposed Xarelto “Private Settlement” ceased to be Private (extrajudicial) the minute the “parties” crossed the threshold of the court seeking an order related to the settlement.

If the courts excuse for not conducting fairness hearings is “because this is a private settlement”, that dog simply won’t hunt.

Any contention that the court is acting under authority agreed to by the parties also fails. Plaintiff Leadership nor Defense Counsel all the “parties”. Plaintiff lead counsel can enter agreements binding on the clients retained by their firms (those parties) however, leadership does not represent all “parties” and therefore cannot stipulate to jurisdiction on behalf clients they do not represent. Additionally, issues related to subjected matter jurisdiction  cannot be waived by stipulation or agreement by the parties.

Jurisdiction Under the “All Writs Act”?

[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”  28 U.S.C. § 1651(a).

In should be noted that Judge Weinstein, Judge Fallon  and “Quasi Class Action MDL Judges” never appear to claim to have  actual jurisdiction over MDL settlements, they instead cite their inherent authority, which would arise under the “All Writs Act”:

“All courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”  28 U.S.C. § 1651(a).”

The All Writs Act however, only provides “inherent authority” over subject matter for which the given Federal Court otherwise has jurisdiction. Absent Jurisdiction over the Subject Matter of MDL settlement, MDL Judges have no inherent authority  arising under 28 U.S.C. § 1651 related to the same subject matter (MDL settlements).

 

Judicial Activism Morphing into Tyranny

Judge Fallon, as well as other MDL judges who subscribe to the quasi-class action theory within the restraints of FRCP 23(e), have in the past been potentially guilty of well-intended judicial activism even when judicial acts arising from that activism may have strayed beyond their  jurisdiction.

The inherent problem always accompanying judicial activism is the risk of activism turning into tyranny.

Xarelto Plaintiffs aggrieved by the proposed settlement, with no forum in which to voice their grievances, while plaintiff leadership arguably acting to their common detriment and a court turning a deaf ear to their plight, might justifiably feel they are victims of judicial tyranny.

Many Judicial Scholars have expressed concern over the possible negative consequences of judicial activism. Many of the concerns expressed by these judicial scholars have now been realized in the proposed Xarelto Settlement.

The Author would argue that Judge Fallon’s failure to conduct fairness hearings, while issuing orders related to the Xarelto settlement, that may negatively impact individual plaintiffs, crossed the line from judicial activism to  judicial tyranny.

 

Don’t Take My Word for It

Due to the fact several members of Xarelto leadership directly threatening me and attempting to lead attorneys representing absent Xarelto plaintiffs (non-leadership) firms, to believe they are somehow at risk of ethical violations if they take the opinions of a non-lawyer (me) into consideration, I will provide the several links below to scholarly papers and articles written by judicial scholars who are actually attorneys. Draw your own conclusions.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

Elizabeth Chamblee Burch

https://www.amazon.com/Elizabeth-Chamblee-Burch/e/B00G61EI2I/ref=dp_byline_cont_ebooks_1

About Professor Burch: http://www.law.uga.edu/profile/elizabeth-chamblee-burch

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation is available for purchase on Amazon. Professor Burch has been conducing research related to MDL settlements for many years. Her most recent work “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation” is an eye opening read even for those that believe they are already familiar with all of the “dirty little lies and secrets” of mass torts.

Other work by Professor Burch includes “Monopolies in Mass Torts”

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2113&context=fac_artchop

 

You can obtain a copy of Monopolies in Mass Torts free at the link above. This paper is somewhat of a prequel to Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation. If you read the prequel you will want to buy the book.

 

DUBIOUS DOCTRINES: THE QUASI-CLASS ACTION  by Linda Mullenix

https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1095&context=uclr

Note: This article written by Linda Mullenix in 2012 is as apt today as the day it was written.

About Professor Mullenix:  https://law.utexas.edu/faculty/linda-s-mullenix

Excepts:

In the past few years, the term ―quasi-class action has been appearing with increasing, uncritical frequency in a spate of federal court decisions. While it may be premature to characterize these sporadic references as a trend, it is perhaps soon enough to call attention to the misuse of loose labels that carry with them significant consequences. Before the quasi-class action gains any further traction, there are several valid reasons for definitively quashing this quasi

Before the inspired fabrication of the quasi-class action, global agreements accomplished under MDL auspices had to be settled pursuant to formal class requirements and due process protections. By engrafting the label quasi-class action onto MDL procedure, self-interested actors have created a perfect staging ground for negotiating back-room deals that carry a false aura of judicial legitimacy, liberated from the constraints of the formal class action rule.

MDL judges, in turn, by endorsing the concept of the quasi-class action have greatly expanded the scope of their authority and have become complicit in allowing private parties to accomplish the very backdoor settlements that the Supreme Court and federal courts have disallowed for decades. The quasi-class action, then, represents an ultimate, cynical expression of an aggregate claims-resolution model that enables self-interested actors to resolve claims in the actors‘ best interests rather than the interests of injured claimants.

At first blush, the sheer frequency of federal use of the term quasi-class action would seem to suggest that the quasi-class action is a well-recognized and well-established doctrine in federal jurisprudence. Since 1946, sixty-eight federal cases have cited the label. However, careful reading of this case law suggests an entirely different conclusion: the quasi-class action is a phantasm. None of these cases actually discussed the concept of the quasi-class action, and rarely-cited authority is inapposite or inaccurate.

Important Case Law

Although SCOTUS has yet to address the question : Does and MDL Judge (like a Class Action Judge) have jurisdiction over settlement, as the question has yet to be presented to SCOTUS, the high court has ruled on other questions in a manner which may be of value to any firm representing a plaintiff in the Xarelto litigation if said plaintiff case is dismissed or otherwise prejudiced by any of the orders related to or arising from the prosed Xarelto Settlement.

Lexecon v Milberg (Scotus)

https://www.oyez.org/cases/1997/96-1482

Note: Lexecon did not directly address the question of an MDL Judges jurisdiction over MDL settlement however, SCOTUS made it clear that USC 1407 does not extend an MDL judges jurisdiction beyond the exact language codified by Congress in 1407.

Federal Judges have broad discretion over many matters however, Federal Judges have no discretion in any matter (subject matter nor personal) beyond the specific grant of jurisdiction by Congress under which the court acts.

Question

May a federal district court conducting “pretrial proceedings” under 28 USC section 1407(a) invoke section 1404(a) to assign a transferred case to itself for trial?

No. In an opinion delivered by Justice David H. Souter, the Court held that a district court conducting pretrial proceedings pursuant to section 1407(a) has no authority to invoke section 1404(a) to assign a transferred case to itself for trial. The Court noted that the Panel’s section 1407(a) instructions are crouched in the word “shall,” which “creates an obligation impervious to judicial discretion.” Justice Souter wrote for the Court that, “the straightforward language imposing the Panel’s responsibility to remand… bars recognizing any self-assignment power in a transferee court.” The opinion was unanimous except insofar as Justice Antonin Scalia did not join Part II-C.

Lexecon Inc. was a defendant in a class action lawsuit. Under 28 USC section 1407(a), the lawsuit was transferred for pretrial proceedings to the District of Arizona. Section 1407(a) authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact “to any district for coordinated or consolidated pretrial proceedings,” but provides that the Panel “shall” remand any such action to the original district “at or before the conclusion of such pretrial proceedings.” After claims against it were dismissed, Lexecon brought suit against Milberg Weiss Bershad Hynes & Lerach and others (Milberg) in the class action lawsuit in the Northern District of Illinois. Ultimately, the Panel, under section 1407(a), ordered the case transferred to the District of Arizona. Afterwards, Lexecon moved for the Arizona District Court to remand the case to Illinois. Milberg filed a countermotion requesting the Arizona District Court to invoke section 1404(a) to “transfer” the case to itself for trial. Ultimately, the court assigned the case to itself and the Court of Appeals affirmed its judgment.

 

AMCHEM PRODUCTS, INC., et al., PETITIONERS v. GEORGE WINDSOR et al.

Note: AMCHEM arose from the asbestos litigation, the ruling addressed attempts to settle cases filed in MDLs as well as cases filed in Class Actions. SCOTUS did not address the question of MDL Courts jurisdiction (nor lack thereof) over MDL settlement as this issue was not raised. SCOTUS ruling in AMCHEM did however make it clear that any mass tort judge, whether presiding over an MDL or a Class Action, has a duty to protect the interest of “absent plaintiffs”.

Excepts from AMCHEM

This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class action certification sought to achieve global settlement of current and future asbestos related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tie d together by this commonality: each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here.

Rule 23(e), on settlement of class actions, reads in its entirety: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” This prescription was designed to function as an additional requirement, not a superseding direction, for the “class action” to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. Eisen, 417 U. S., at 176-177 (adequate representation does not eliminate additional requirement to provide notice). Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed.

The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point:

[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups.” In re Joint Eastern and Southern Dist. Asbestos Litigation, 982 F. 2d 721, 742-743 (CA2 1992), modified on reh’g sub nom. Inre Findley, 993 F. 2d 7 (CA2 1993).

The Third Circuit found no assurance here–either in the terms of the settlement or in the structure of the negotiations–that the named plaintiffs operated under a proper understanding of their representational responsibilities. See 83 F. 3d, at 630-631. That assessment, we conclude, is on the mark.

The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. 

Subject Matter Jurisdiction Case Law 

Note: There are literally thousands of appellate rulings related to Lower Courts (Federal) issuing judgments and orders in excess of their jurisdiction. The citations below are merely examples of the vast number of rulings on the subject.

Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity, People v. Rolland 581 N.E.2d 907, Ill.App. 4 Dist. 1991)..

Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 (Mo.App. 1964).

Note: MDL Court Judges imposing themselves into MDL settlements never seem to actually claim to have jurisdiction in the record, instead they  claim to have “inherent authority”. No authority exists absent jurisdiction.

Decision is void on the face of the judgment roll when from four comers of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment that was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995).

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent Power to enter the particular judgment. or an order procured by fraud,can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).

A void judgment is one which from its inception was a complete nullity and without legal effect, Lubben v. Selective Service System Local Bd. No. 2 7, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).

A void judgement is one which from its inception and forever continues to be absolutely null. without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree – Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985).

A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (CaLApp. 2 Dist. 1491).

Res judicata consequences will not be applied to a void judgment which is one which from its inception is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).

Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973 1991)..

Disclaimer: The author of this article, John Ray, is not a lawyer. Nothing in this article should be taken as legal advice. The opinions expressed in this article are the opinions of the author. Publication of this article by any third party should not be considered an endorsement of nor agreement with the opinions expressed by the author.

 

 

 

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Did Trump and Epstein Rape Two Underage Girls?

Did Trump and Epstein Rape Two Underage Girls?

Before we address the question, Did Trump and Epstein Rape Two Underage Girls” we will first discuss Attorney General Bob Barr’s highly unusual decision to un-recuse himself from the Epstein case and actually take direct control over the case, despite have previously announced he was conflicted from having anything to do with the matter.

 

Why did Barr Un-Recuse?

Mass Tort Nexus researcher, Mark York, discovered a civil lawsuit filed in 2016 by Katie Johnson (now an adult), she accuses Trump and Epstein of committing multiple acts of sexual violence against herself (13 at the time) as well as a 12-year-old. (see excerpts below or download the complaint at:

Donald Trump – Jeffrey Epstein Federal Complaint (USDC California 2016) Re: Minor Sex Abuse

Given Epstein’s history of secretly taping famous people taking sexual advantage of young women procured by Epstein, if the allegations in the Johnson complaint are true, Trump has every reason to be concerned that tapes might exist which would prove Johnson’s allegations.

Would Bob Barr Obstruct Justice to protect Trump?

Evidence to date would suggest that Bob Barr is more than willing to pervert our justice system and even defy elected officials to protect his boss.

Would Trump ask Barr to Un-Recuse Himself?

The Presidents history (in his own words) related to Jeff Session’s recusal from the Russia Probe and subsequent refusal to un-recuse himself provide strong evidence that the President would ask an attorney general to un-recuse himself despite any previously addressed conflicts.

Why would Trump want his loyal Protector in Chief (Barr) in charge of the Epstein matter?

The remainder of this article will provide information on which the reader can draw their own conclusions as to why Trump may need Barr to interfere in the Epstein Case.

White House Initial Reactions to Epstein Indictment

Kellyanne Conway took the airways shortly after the new Epstein indictment was announced claiming that the president had not talked to nor seen Epstein in 10 to 15 years. If this claim was intended give the impression that the President and his hold friend had not cross paths in over a decade, the Lawsuit filed by Katie Johnson against Trump and Epstein in 2016 (co-defendants) accusing the pair of committing multiple acts of sexual violence against Johnson (then 13) and another girl (12 at the time) makes the statements made by Kellyanne Conway highly questionable. (see excerpts from complaint below)

 

Also See:

https://www.politico.com/story/2019/07/09/trump-jeffrey-epstein-kellyanne-conway-1402997

NOT FAKE NEW’s

After reading the excepts provided below from the Johnson complaint, you decide is Trump may need someone (Barr) to run interference on his behalf before the Epstein matter spills over and creates yet another potential reason Trump may have to be concerned about his future, not just as President but also as total loss of his choice of clothing (being restricted to a single orange jumpsuit).

 

Excerpts from Complaint:

FACTUAL ALLEGATIONS

The Plaintiff, Katie Johnson, alleges that the Defendants, Donald J. Trump and Jeffrey E. Epstein, did willfully and with extreme malice violate her Civil Rights under 18 U.S.C. ; 2241 by sexually and physically abusing Plaintiff Johnson by forcing her to engage in various perverted and depraved sex acts by threatening physical harm to Plaintiff Johnson and also her family. The Plaintiff, Katie Johnson, alleges that the Defendants, Donald J. Trump and Jeffrey E. Epstein, also did willfully and with extreme malice violate her Civil Rights under 42 U.S.C.; 1985 by conspiring to deny Plaintiff Johnson her Civil Rights by making her their sex slave.

The Plaintiff, Katie Johnson, alleges she was subject to extreme sexual and physical abuse by the Defendants, Donald J. Trump and Jeffrey E. Epstein, including forcible rape during a four month time span covering the months of June-September 1994 when Plaintiff Johnson was still only a minor of age 13.

The Plaintiff, Katie Johnson, alleges she was enticed by promises of money and a modeling career to attend a series of underage sex parties held at the New York City residence of Defendant Jeffrey E. Epstein and attended by Defendant Donald J. Trump.

On the first occasion involving the Defendant, Donald J. Trump, the Plaintiff, Katie Johnson, was forced to manually stimulate Defendant Trump with the use of her hand upon Defendant Trump’s erect penis until he reached sexual orgasm.

On the second occasion involving the Defendant, Donald J. Trump, the Plaintiff, Katie Johnson, was forced to orally copulate Defendant Trump by placing her mouth upon Defendant Trump’s erect penis until he reached sexual orgasm.

On the third occasion involving the Defendant, Donald J. Trump, the Plaintiff, Katie Johnson was forced to engage in an unnatural lesbian sex act with her fellow minor and sex slave, Maria Doe age 12, for the sexual enjoyment of Defendant Trump. After this sex act, both minors were forced to orally copulate Defendant Trump by placing their mouths simultaneously on his erect penis until he achieved sexual orgasm. After zipping up his pants, Defendant Trump physically pushed both minors away while angrily berating them for the “poor” quality of their sexual performance.

On the fourth and final sexual encounter with the Defendant, Donald J. Trump, the Plaintiff, Katie Johnson, was tied to a bed by Defendant Trump who then proceeded to forcibly rape Plaintiff Johnson. During the course of this savage sexual attack, Plaintiff Johnson loudly pleaded with Defendant Trump to “please wear a condom”. Defendant Trump responded by violently striking Plaintiff Johnson in the face with his open hand and screaming that “he would do whatever he wanted” as he refused to wear protection. After achieving sexual orgasm, the Defendant, Donald J. Trump put his suit back on and when the Plaintiff, Katie Johnson, in tears asked Defendant Trump what would happen if he had impregnated her, Defendant Trump grabbed his wallet and threw some money at her and screamed that she should use the money “to get a fucking abortion”.

On the first occasion involving the Defendant, Jeffrey E. Epstein, the Plaintiff, Katie Johnson, was forced to disrobe into her bra and panties and to give a full body massage to Defendant Epstein while he was completely naked. During the massage, Defendant Epstein physically forced Plaintiff Johnson to touch his erect penis with her bare hands and to clean up his ejaculated semen after he achieved sexual orgasm.

On the second occasion involving the Defendant, Jeffrey Epstein, the Plaintiff, Katie Johnson, was again forced to disrobe into her bra and panties while giving Defendant Epstein a full body massage while he was completely naked. The Defendant, Donald J. Trump, was also present as he was getting his own massage from another minor, Jane Doe, age 13. Defendant Epstein forced Plaintiff Johnson to touch his erect penis by physically placing her bare hands upon his sex organ and again forced Plaintiff Johnson to clean up his ejaculated semen after he achieved sexual orgasm.

Shortly after this sexual assault by the Defendant, Jeffrey E. Epstein, on the Plaintiff, Katie Johnson, Plaintiff Johnson was still present while the two Defendants were arguing over who would be the one to take Plaintiff Johnson’s virginity. The Defendant, Donald J. Trump, was clearly heard referring to Defendant, Jeffrey E. Epstein, as a “Jew Bastard” as he yelled at Defendant Epstein, that clearly, he, Defendant Trump, should be the lucky one to “pop the cherry” of Plaintiff Johnson.

The third and final sexual assault by the Defendant, Jeffrey E. Epstein, on the Plaintiff, Katie Johnson, took place after Plaintiff Johnson had been brutally and savagely raped by Defendant Trump. While receiving another full body massage from Plaintiff Johnson, while in the nude, Defendant Epstein became so enraged after finding out that Defendant Trump had been the one to take Plaintiff Johnson’s virginity, that Defendant Epstein also violently raped Plaintiff Johnson.

After forcing Plaintiff Johnson to disrobe into her bra and panties, while receiving a massage from the Plaintiff, Defendant Epstein attempted to enter Plaintiff Johnson’s anal cavity with his erect penis while trying to restrain her. Plaintiff Johnson attempted to push Defendant Epstein away, at which time Defendant Epstein attempted to enter Plaintiff Johnson’s vagina with his erect penis. This attempt to brutally sodomize and rape Plaintiff Johnson by Defendant Epstein was finally repelled by Plaintiff Johnson but not before Defendant Epstein was able to achieve sexual orgasm. After perversely sodomizing and raping the Plaintiff, Katie Johnson, the Defendant, Jeffrey E. Epstein, attempted to strike her about the head with his closed fists while he angrily screamed at Plaintiff Johnson that he, Defendant Epstein, should have been the one who “took her cherry, not Mr. Trump”, before she finally managed to break away from Defendant Epstein.

The Plaintiff, Katie Johnson, was fully warned on more than one occasion by both Defendants, Donald J. Trump and Jeffrey E. Epstein, that were she ever to reveal any of the details of the sexual and physical abuse that she had suffered as a sex slave for Defendant Trump and Defendant Epstein, that Plaintiff Johnson and her family would be in mortal danger. Plaintiff Johnson was warned that this would mean certain death for herself and Plaintiff Johnson’s family unless she remained silent forever on the exact details of the depraved and perverted sexual and physical abuse she had been forced to endure from the Defendants.

 

MATERIAL WITNESSES

Tiffany Doe, a former trusted employee of the Defendant, Jeffrey E. Epstein, has agreed to provide sworn testimony in this civil case and any other future civil or criminal proceedings, fully verifying the authenticity of the claims of the Plaintiff, Katie Johnson. Witness Tiffany Doe was employed by the Defendant, Jeffrey E. Epstein, for more than 10 years as a party planner for his underage sex parties. Despite being subject to constant terroristic threats by Defendants Epstein and Trump to never reveal the details of these underage sex parties at which scores of teenagers, and pre-teen girls were used as sex slaves by Defendant Epstein and Defendant Trump, witness Tiffany Doe refuses to be silent any longer. She has agreed to fully reveal the extent of the sexual perversion and physical cruelty that she personally witnessed at these parties by Defendants Epstein and Trump.

Material witness Tiffany Doe fully confirms all of Plaintiff Katie Johnson’s allegations of physical and sexual abuse by Defendants Donald J. Trump and Jeffrey E. Epstein. Tiffany Doe was physically present at each of the four occasions of sexual abuse by Defendant Trump upon the person of Plaintiff Johnson, as it was her job to witness all of the sexual escapades of Defendant Epstein’s guests at these underage sex parties and later reveal all of the sordid details directly to Defendant Epstein. Defendant Epstein also demanded that Tiffany Doe tell him personally everything she had overheard at these parties explaining to her that “knowledge was king” in the financial world. As a result of these underage sex parties, Defendant Epstein was able to accumulate inside business knowledge that he otherwise would never have been privy to in order to amass his huge personal fortune.

Material witness Tiffany Doe will testify that she was also present or had direct knowledge of each of the three instances on which Defendant Jeffrey E. Epstein physically and sexually abused the Plaintiff, Katie Johnson. Tiffany Doe will testify to the fact that the Plaintiff, Katie Johnson, was extremely fortunate to have survived all of the physical and sexual horrors inflicted upon her by Defendants Epstein and Trump.

(end excerpts from Johnson Complaint)

Would Trump Do Such Things? 

 

“The fact that Donald Trump had a friendly relationship with Epstein — he told New York Magazine in 2002 that “(Epstein’s) a lot of fun to be with … It is even said that he likes beautiful women as much as I do, and many of them are on the younger side”

http://nymag.com/nymetro/news/people/n_7912/

Not Just Locker Room Talk

 

Is it Normal to Agree that your Daughter is a “Hot Piece of Ass? 

More Creepy Daddy Moments 

 

Do You Enjoy Kissing Your Daughter More than Kissing  your Wife?

 

 

 

 

Daddy Really Loves His Little Girl

 

 

 

Trump and Epstein Like Them Young

10 Creepy Things Donald Trump Has Said About Ivanka

Conclusion

Do you think Trump has a reason to want Bob Barr heading up the Epstein case?

Do you think Barr would be willing to run interference for Trump, even if it meant giving Epstein a break?

Do you think Trump might engage in the acts alleged in the Johnson Complaint?

Will Trump Supporters be OK with this?

More Background Information 

 

In case you have not been following the Epstien Case, the following should get you up to speed:

 

Other News and Links:

Donald Trump and Prince Andrew met up in London ahead of Jeffrey Epstein’s arrest on new sex trafficking charges

 

 

 

 

 

 

 

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The Definitive Guide to Opioid Litigation

The Definitive Guide to the “Opioid Litigation”

If you believe your firm is not big enough to be involved in the “Opioid Litigation”, you are wrong. If you believe it is too late to get involved in the “Opioid Litigation”, you are so very wrong. The opioid lawsuits, filed mostly by government entities thus far, represent the tip of an extremely large iceberg. A vast number of entities both public and private, with potentially viable claims against opioid defendants, remain unrepresented. Recent actions by the FDA, the Surgeon General, and the DEA support potential product liability claims on behalf of individuals harmed by opioids. These mass litigations on behalf of individuals are in the inception phase. The total number of clients with claims in the “Opioid Litigation” could rival the Tobacco Litigation.

Mass Tort Nexus announces the upcoming release of “Volume 1 of the Definitive Guide to Opioid Litigation.”  A very limited number of  “pre-release”  copies will be provided to attendees of the October 18-20, Mass Torts Made Perfect Conference in Las Vegas.

To receive one of the limited “pre-release” copies at MTMP, contact Jenny Levine jenny@masstortnexus.com or (954) 520-4494.

Over the past two years, the research and technical divisions of Mass Tort Nexus have worked in conjunction with educational institutions, government entities and private organizations, to establish a comprehensive archive of documents, data and knowledge relevant to “The Opioid Litigation”.  Thus far, we have used our archive of documents as well as our databases to educate government entities, as well as private organizations that may have claims against the manufacturers, distributors and other co-conspirators that took part in causing the “Opioid Epidemic.”

Mass Tort Nexus also uses our document archive, data and our knowledge base to assist select law firms in identifying entities, both public and private, that have incurred the most significant financial damages related to opioids. After an entity client has been retained, Mass Tort Nexus then assists with establishing the direct connection between the actions of specific opioid defendants and the damages caused by those actions specific to given state, city, county or other entity.

Using “Big Data”  in the Opioid Litigation

Between 2013 and 2015,  68,177 doctors accepted a total of $46 million dollars in payments from opioid manufacturers. Using our collection of databases, Mass Tort Nexus can identify doctors in specific cities, counties and states that accepted payments from opioid Manufacturers. Mass Tort Nexus can then cross reference that data with the specific doctor’s opioid prescribing habits, as compared to the benchmark for their specialty.

Opioids “The Trillion Dollar Epidemic”

The damages caused by the Opioid defendants to government entities, as well as private business and individuals is in excess of 1 trillion dollars by our estimates. Although we have no expectation that the defendants will pay for all of the damage they have caused, Mass Tort Nexus intends to do its part to make sure the opioid defendants do not get off easy.

Only a Fraction of Government Entities Have Filed Claims

Of the 45,789 State, City, County, Territory and reservation governments that potentially have claims against opioid manufacturers, less than one percent have filed claims to date. Of course, not all government entities were damaged equally, some cities or counties may have suffered very little financial damage. Understanding how to identify and account for damages caused by opioids to a given city or other government entity is vital for the potential entity client, as well as the lawyers that represent them.

Mass Tort Nexus Definitive Guide to the Opioid Litigation First 6 Volumes

 

Volume 1

Volume 1:  The Definitive Guide to Opioid Litigation provides the history of the defendants bad acts, statistics related to which government entities (Cities, States and Counties) suffered the most significant financial damage directly related to the opioid defendants actions. Volume 1 also critiques entity complaints to date, as well as defense strategies employed related to those complaints. (Limited Pre-Release at October MTMP)

 

Volume 2

Volume 2: The Definitive Guide to Opioid Litigation provides guidance for identifying entity clients, both government and provide sector, with significant damages  related to the actions of the opioid clients. This volume also delves into how law firms undertake retaining these entity clients.

 

Volume 3

Volume 3: The Definitive Guide to Opioid Litigation takes the massive amount of statistical data, documents and other information most important to clients and their attorneys and summarizes the information for ease of use. Mass Tort Nexus has collected well over one million pages of documents and billions of data points related to the opioid litigation for our internal use, in our efforts to assist entity clients and law firms we work with directly. Although it would be impossible to provide all of these documents and data in a single resource, we hope that volume three of the guide provides a road map for those who wish to undertake the monumental task of collecting the data and documents needed to be in the best position possible, to represent any client they retain.

Volume 4

Volume 4: The Definitive Guide to the Opioid Litigation records the criminal convictions of opioid manufacturers, employees and executives that have occurred to date and makes some predictions of what may occur in the near future. Hint, unlike the three Purdue Pharma Executives that paid a $65 million dollar fine and agreed to probation to resolve criminal charges, future charges against opioid executives are likely to result in their receiving an all orange wardrobe.

On the record, admissions stemming from the criminal cases already prosecuted in addition to those to come will be very useful in the ongoing opioid civil litigations.

Volume 5

Volume 5: The Definitive Guide to the Opioid Litigation is intended to tie all of the pieces and players together referenced in Volumes 1-4.  The Mass Tort Nexus research staff has been amazed by the connections that they have uncovered between supposedly independent organization that contributed to the development of the “echo chamber” that was used to convince doctors that opioids were safe, despite the fact that over a thousand years of history indicated otherwise.

 

Volume 6

Volume 6: The Definitive Guide to the Opioid Litigation  provides a comparison and contrast between three mass litigation’s with many similarities:

  1. The Tobacco Litigation
  2.  The BP Oil Spill Litigation
  3. The Opioid Litigation

 

 

 

 

 

 

 

 

 

 

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Opioid Manufacturers Break the “Don’t Kill White People Rule”

Government Inaction Turns to Obsession

The FDA, DEA, and the CDC, as well as numerous other government agencies have known for years that prescription opioids were killing people and took no significant action to confront the problem. Only after the CDC began correlating the data, that had always been at their disposal, did inaction turn into obsession and give birth to the Feds recognition of the opioid epidemic.  The word epidemic was not even in the government’s opioid lexicon, until it was discovered that opioids were killing white people at an alarming rate.

Although the correlation mentioned above is not likely to be made issue of in the “Opioid Litigation,” we found it interesting that the Feds discovery that Opioids were killing middle class, white suburban soccer moms, as well as other privileged white folks temporally coincided with the Feds sudden obsession with the problem noteworthy. Better late than never.

The Definitive Guide to the “Opioid Litigation”

Mass Tort Nexus will release the first volume of the “Definitive Guide to the Opioid Litigation” in October 2017. Contact Jenny Levine at jenny@masstortnexus.com to find out how to get a free copy of volume one. If your firm is interested in becoming involved in the Opioid Litigation, the guide should be your Bible, Koran, Torah etc. for the case.

The first volume is intended to provide plaintiff attorneys with a basic understanding of the multifaceted litigation, past, present and future. In reality, the term  “Opioid Litigation” is somewhat misleading, as it implies a far more limited scope to the “case” than is accurate.

Much attention has been given to the lawsuits filed on behalf of State, Federal and Local Governments against the makers of Opioid’s; however, these types of entity cases are only a fraction of those which can and should be filed.  Cases filed on behalf of individuals based on varied causes of actions should be far more numerous that those filed on behalf of entities. Firms of all sizes will be in a position to represent clients in the many niches that make up the “Opioid Litigation.”

  Back to the “Killing White People Rule”

“The wise do not take part in baseless conspiracy theories nor do they ignore reality regardless of the offense that may be given for its recognition. ”

John Ray

Circa 2017 🙂

 

Anyone who believes  that harming white people will not evoke action from our government far more quickly than harming non whites is ignoring history.

In the early 1930’s, the U.S. government conducted experiments on black men, which involved leading black men with Syphilis to believe they were being treated, when in fact they were being given a placebo. The government did not acknowledge or admit its actions for over 50 years. This is not a conspiracy theory, it is a fact.

This is Ancient History, Right?

More recently, one of  President Richard Nixon’s closest aides (and Watergate Co-Conspirator), years after being released from prison, admitted that Nixon created the “War on Drugs,”  in part to create an excuse to jail young black men. Every single President since Nixon has continued the war on drugs, resulting in a massive number of  black youth incarcerations, despite the fact that white people use illegal drugs at a higher rate than non whites.

 

 

The Reality 

Did the government’s realization that Opioids were killing white folks have an effect on turning inaction into obsession? Did the same factors turn an almost ignored problem into an epidemic?

The time line of the CDC getting around to correlating data, which had been at their disposal for almost 20 years, revealed a violation of the “Don’t Kill White People Rule.” The birth of the Feds obsession with the “Opioid Epidemic” would lead a wise man to conclude the two things are related.

 

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