Will Eglet be on vacation for very long now that they have secured this, because I'd like his help on an action I'm thinking of filing against Costco and Sams Club.
How dare they sell lotion in those size of bottles. They are encouraging me to use it all in one sitting and they should know better.
Perhaps I'm just ignorant, but doesn't Nevada law limit punitive damages to no more than 3 times the amount of actual damages? If the actual damages are just $5 Mill, then this punitive award is 100 times the actuals. I think the US Supremes have already said that such excessive punitives violate due process, regardless of state law limits like Nevada imposes. How does Judge Walsh allow a plaitiff to argue for an amount the law precludes? Again, perhaps I'm just missing something.
2:21 pm - I was thinking the same thing. Is there some statutory exception for the claims brought in this case?
For what it is worth, I think the cap on punis is bogus. If they are meant to punish or deter conduct, isn't a better measure a portion of the tortfeasor's earnings or profits? 15 million would not be punishment for a company that generates 10 billion in revenue.
The appeal is complicated by the fact that a supersedeas will have to be posted to avoid executio on the judgment during the pendency of the appeal. In this case it would tbe the principal amount of the judgment (505,000,000) plus (assuming plaintifffs' beat an Offer of Judgment) attorney's fees of probably 40% (200,000,000), plus prejudgment interest for two years (approx $50,000,000 (assuming 5% to make it easy)), plus post judgment interest for three years that the appeal be pending (say, another 75,000,000).
That's over $800,000,000 in cash that will hve to be tied up to avoid execution on the judgment during the appeal. And if Teva is successful, what do they have to look forward to? Another trial!!
Moreover, there will be insurance issues too numerous to mention.
Also, don't forget that Teva's liability is now res judicata. I smell a big fat settlement coming.
If it wins on appeal, it will look forward to another trial where a whole bunch of evidence favorable to it that previously was excluded will be admitted. It isn't res judicata yet.
No settlement. No way. It can't let that happen and, anyway, there are so many plaintiffs who now will want such big money it couldn't afford to settle. What? Are the other plaintiff's going to want just a few measly million each now? This verdict may have hurt the other plaintiffs more than it helped.
@2:21 This award is going to be cut down by the judge. I'm not sure on what the law is regarding the judge's ability to stop the plaintiff's from arguing a huge number but I'm pretty sure the law says the Judge needs to review the award to make sure it is reasonable and proportionate. 100-1 ratio is not going to stand when the Supreme's have said 4-1 is close to excessive.
Hmmm. Must be an out of state attorney that thinks that a judge must review the jury verdict to determine if it is reasonable. And look who the judge is!
I'm not sure what's more embarrassing – the fact that Las Vegas has medical providers who knowingly reuse dirty needles or the fact that it has jurors who award $500M in punitive damages against the manufacturer and distributer of a drug because of the way it is packaged, and not because the drug itself was unsafe.
They'd be better off with a lower award. This opens the whole thing to scrutiny and they were on thin ice to begin with. A state court awarding $500 million in punitives, when the compensatory damages were $5 million, is a red flag screaming "Please Grant Cert!" Last time I checked you need intentional conduct or at least gross negligence for punitives. I.E., Exxon Shipping Co. v. Baker ("The prevailing rule in American courts also limits punitive damages to cases of what the Court in Day, spoke of as “enormity,” where a defendant's conduct is “outrageous,” 4 Restatement § 908(2), owing to “gross negligence,” “willful, wanton, and reckless indifference for the rights of others,” or behavior even more deplorable,"). Now the whole thing will be put under a magnifying glass and I don't think it wouldn't be out of the question for punitives to be precluded altogether. I'd be kicking myself right now if I was counsel.
Federal due process only permits 9 times the compensatory award, and the NRS limits it even further. The judge has to remit this award. He should have instructed the jury on the limit in the first place. Oh wait...he doesn't know it himself, because he was elected, not appointed based on merit.
Agree that the award will invie scrutiny and that the plaintiffs could have done with a smaller award. That said, you should know that the criteria for awarding punitive damages is matter of state law in this case. You failed to address the NEVADA perquisites: malice, oppression and fraud.
The award will most likely be remitted, but is will still be high.
7:30
Doesn't know that Walsh is a woman; another carpetbagger?
It's my understanding from reading Countryside that you must have some culpable conduct. "Since its language plainly requires evidence that a defendant acted with a culpable state of mind, we conclude that NRS 42.001(1) denotes conduct that, at a minimum, must exceed mere recklessness or gross negligence" 192 P.3d 243, 245-55.
I just cannot imagine how the jury concluded that 1) Def willfully and deliberately failed to act to avoid 2) what Def knew to be harmful consequences of 3) the "wrongful act" of selling an item in bulk.
My guess... new trial, plaintiffs lose on that go'round.
The clinics are culpable, here, but the drug companies were only sued because of their deep pockets. First, this award is getting reduced big time. Second, I have news for everyone. The defendants won't pay for this. Everyone else who buys their drugs will. This is why tort reform is such an important part of health care reform.
All of this screams for a mass settlement in the Centers Bankruptcy Cases, you throw in a portion of Teva's money, some from the insurance company for the Center's and Dr. Desai's assets and everyone gets something....the decision should open up everybody's eyes and try to figure out a resolution of all of the cases. Yes I like ADR, but I am also tired of waiting for a trial date because of all of these medical cases! By the way, is anyone following the Bankruptcy cases?
11:50 am. My facts are not off - here is a excerpt from the Review Journal piece that ran on May 6:
Local health officials blamed the outbreak on nurse anesthetists reusing vials among patients after the vials had become contaminated by the reusing of syringes on patients who already had hepatitis C.
The definition of Syringe: A device used in medicine to inject fluid into or withdraw fluid from the body. Medical syringes consist of a needle attached to a hollow cylinder that is fitted with a sliding plunger. The downward movement of the plunger injects fluid; upward movement withdraws fluid.
So, the vials allegedly became contaminated after they were exposed to dirty needles. Should I have said syringe?
Of course MEC did. I'm not sure if Walsh is more biased towards plaintiffs or just stupid. It's a coin toss. Just be nice to deputy Diamond - He runs the courtroom.
2:20 - agree with you, we are involved, things are getting hot in Bankruptcy; the Trustee was deposed and disclosed issues with the Insurance Company and Defense which made them seal the depo ... he is probably the only one truthful out of everybondy involved. The Insurance Company sued the Trustee and the Trustee sued for their failure to pay for defense costs....and apparently he was truthful as the Defense attorneys have not even been paid, got to wonder who is really running the defense...and why they have not withdrawn...lots of consipiracy thoughts...
Plaintiffs are starting to agree that Bankruptcy is the smartest place for everyone to resolve it...
Can I get a look at your crystal ball? Apparently you put a lot of trust into it.
Also, if you think tort reform is going to lower our insurance costs, you are out of you GD mind, or delusional. You are the kind of zombie who has bought into the insurance industry's fear campaign. News flash: They are lying to you! Did med mal premiums go down much, if at all, after the med mal tort reform? No. They are feeding you full of shit, and you are lapping it up. The sad thing is, there are A LOT of people like you who are so easily convinced. Suckers.
I heard Eglet and Kemp have a pool full of ill-tempered sea bass with frickin' laser beams attached to their heads.
ReplyDeleteDamn! Let's start petiting Eglet and Kemp to buy a baseball/basketball team and bring them to Las Vegas.
ReplyDeleteShit! My pharmaceutical company stock just crashed!
ReplyDeleteGreat Job!
ReplyDeleteIf this doesn't get us at least a top five ranking for 2010, we'll know this list is fixed!
ReplyDeletehttp://www.atra.org/reports/hellholes/
Great job! And for te record, I've been an insurance defense lawyer innNevada for 25 years.
ReplyDeleteWill Eglet be on vacation for very long now that they have secured this, because I'd like his help on an action I'm thinking of filing against Costco and Sams Club.
ReplyDeleteHow dare they sell lotion in those size of bottles. They are encouraging me to use it all in one sitting and they should know better.
Perhaps I'm just ignorant, but doesn't Nevada law limit punitive damages to no more than 3 times the amount of actual damages? If the actual damages are just $5 Mill, then this punitive award is 100 times the actuals. I think the US Supremes have already said that such excessive punitives violate due process, regardless of state law limits like Nevada imposes. How does Judge Walsh allow a plaitiff to argue for an amount the law precludes? Again, perhaps I'm just missing something.
ReplyDeleteSee NRS 42.005. Defective products are excluded from the cap.
ReplyDeleteMake love to me. Now!
ReplyDeleteIt just means it is more likely to get overturned either the Nevada or U.S. Supreme Courts.
ReplyDelete1:59 PM I saw you on teh interwebs.
ReplyDeleteYou're that jedi master debater.
2:21 pm - I was thinking the same thing. Is there some statutory exception for the claims brought in this case?
ReplyDeleteFor what it is worth, I think the cap on punis is bogus. If they are meant to punish or deter conduct, isn't a better measure a portion of the tortfeasor's earnings or profits? 15 million would not be punishment for a company that generates 10 billion in revenue.
Either way, congrats Eglet and Kemp. Well played.
1:59
ReplyDeleteActually, your analogy is off. If the lotion is so big, it actually encourages you to use it over time and maybe share it with others.
What you are saying supports the plaintiffs' position.
The appeal is complicated by the fact that a supersedeas will have to be posted to avoid executio on the judgment during the pendency of the appeal. In this case it would tbe the principal amount of the judgment (505,000,000) plus (assuming plaintifffs' beat an Offer of Judgment) attorney's fees of probably 40% (200,000,000), plus prejudgment interest for two years (approx $50,000,000 (assuming 5% to make it easy)), plus post judgment interest for three years that the appeal be pending (say, another 75,000,000).
ReplyDeleteThat's over $800,000,000 in cash that will hve to be tied up to avoid execution on the judgment during the appeal. And if Teva is successful, what do they have to look forward to? Another trial!!
Moreover, there will be insurance issues too numerous to mention.
Also, don't forget that Teva's liability is now res judicata. I smell a big fat settlement coming.
3:02
ReplyDeleteIf it wins on appeal, it will look forward to another trial where a whole bunch of evidence favorable to it that previously was excluded will be admitted. It isn't res judicata yet.
No settlement. No way. It can't let that happen and, anyway, there are so many plaintiffs who now will want such big money it couldn't afford to settle. What? Are the other plaintiff's going to want just a few measly million each now? This verdict may have hurt the other plaintiffs more than it helped.
@2:21 This award is going to be cut down by the judge. I'm not sure on what the law is regarding the judge's ability to stop the plaintiff's from arguing a huge number but I'm pretty sure the law says the Judge needs to review the award to make sure it is reasonable and proportionate. 100-1 ratio is not going to stand when the Supreme's have said 4-1 is close to excessive.
ReplyDelete@1:50. You mean that the AMA-back publicity org won't like this verdict? Oh no, run for the hills.
ReplyDeleteIdiot.
Are any of you fucking people lawyers?
ReplyDeletemany of your q's are plainly answered by statute or case law.
Hmmm. Must be an out of state attorney that thinks that a judge must review the jury verdict to determine if it is reasonable. And look who the judge is!
ReplyDeleteCome play in my sandbox anytime.
@3:30
ReplyDeleteThe award is NOT going to be cut down by the judge. Its Judge Walsh.
3:02 is right. The plaintiffs have a clear tactical and strategic advantage. Well played indeed!
ReplyDelete3:02
ReplyDelete"It isn't res judicata yet"
It will be, it will be.
Watch out Tracy. Bob is going to trade in for newer model now.
ReplyDelete@3:49 - Take the stick out of your a$$. Somebody needs the wood.
ReplyDeleteNo way this stands.
ReplyDeleteI'm not sure what's more embarrassing – the fact that Las Vegas has medical providers who knowingly reuse dirty needles or the fact that it has jurors who award $500M in punitive damages against the manufacturer and distributer of a drug because of the way it is packaged, and not because the drug itself was unsafe.
ReplyDeleteThey'd be better off with a lower award. This opens the whole thing to scrutiny and they were on thin ice to begin with. A state court awarding $500 million in punitives, when the compensatory damages were $5 million, is a red flag screaming "Please Grant Cert!" Last time I checked you need intentional conduct or at least gross negligence for punitives. I.E., Exxon Shipping Co. v. Baker ("The prevailing rule in American courts also limits punitive damages to cases of what the Court in Day, spoke of as “enormity,” where a defendant's conduct is “outrageous,” 4 Restatement § 908(2), owing to “gross negligence,” “willful, wanton, and reckless indifference for the rights of others,” or behavior even more deplorable,"). Now the whole thing will be put under a magnifying glass and I don't think it wouldn't be out of the question for punitives to be precluded altogether. I'd be kicking myself right now if I was counsel.
ReplyDeleteFederal due process only permits 9 times the compensatory award, and the NRS limits it even further. The judge has to remit this award. He should have instructed the jury on the limit in the first place. Oh wait...he doesn't know it himself, because he was elected, not appointed based on merit.
ReplyDelete6:45
ReplyDeleteAgree that the award will invie scrutiny and that the plaintiffs could have done with a smaller award. That said, you should know that the criteria for awarding punitive damages is matter of state law in this case. You failed to address the NEVADA perquisites: malice, oppression and fraud.
The award will most likely be remitted, but is will still be high.
7:30
Doesn't know that Walsh is a woman; another carpetbagger?
It's my understanding from reading Countryside that you must have some culpable conduct. "Since its language plainly requires evidence that a defendant acted with a culpable state of mind, we conclude that NRS 42.001(1) denotes conduct that, at a minimum, must exceed mere recklessness or gross negligence" 192 P.3d 243, 245-55.
ReplyDeleteI just cannot imagine how the jury concluded that 1) Def willfully and deliberately failed to act to avoid 2) what Def knew to be harmful consequences of 3) the "wrongful act" of selling an item in bulk.
My guess... new trial, plaintiffs lose on that go'round.
5:36 - Your facts are off. They were not resuing "dirty needles." Read up on these cases.
ReplyDeleteThe clinics are culpable, here, but the drug companies were only sued because of their deep pockets. First, this award is getting reduced big time. Second, I have news for everyone. The defendants won't pay for this. Everyone else who buys their drugs will. This is why tort reform is such an important part of health care reform.
ReplyDeleteAll of this screams for a mass settlement in the Centers Bankruptcy Cases, you throw in a portion of Teva's money, some from the insurance company for the Center's and Dr. Desai's assets and everyone gets something....the decision should open up everybody's eyes and try to figure out a resolution of all of the cases. Yes I like ADR, but I am also tired of waiting for a trial date because of all of these medical cases! By the way, is anyone following the Bankruptcy cases?
ReplyDelete11:50 am. My facts are not off - here is a excerpt from the Review Journal piece that ran on May 6:
ReplyDeleteLocal health officials blamed the outbreak on nurse anesthetists reusing vials among patients after the vials had become contaminated by the reusing of syringes on patients who already had hepatitis C.
The definition of Syringe: A device used in medicine to inject fluid into or withdraw fluid from the body. Medical syringes consist of a needle attached to a hollow cylinder that is fitted with a sliding plunger. The downward movement of the plunger injects fluid; upward movement withdraws fluid.
So, the vials allegedly became contaminated after they were exposed to dirty needles. Should I have said syringe?
Now, go fuck yourself.
Speaking strategically, I heard MEC had motions in limine granted that prohibited any use of the words "Doctor" or "Needle" during the trial.
ReplyDeleteOf course MEC did. I'm not sure if Walsh is more biased towards plaintiffs or just stupid. It's a coin toss. Just be nice to deputy Diamond - He runs the courtroom.
ReplyDelete2:20 - agree with you, we are involved, things are getting hot in Bankruptcy; the Trustee was deposed and disclosed issues with the Insurance Company and Defense which made them seal the depo ... he is probably the only one truthful out of everybondy involved. The Insurance Company sued the Trustee and the Trustee sued for their failure to pay for defense costs....and apparently he was truthful as the Defense attorneys have not even been paid, got to wonder who is really running the defense...and why they have not withdrawn...lots of consipiracy thoughts...
ReplyDeletePlaintiffs are starting to agree that Bankruptcy is the smartest place for everyone to resolve it...
5:54 That's lovely. Wouldn't you just die laughing if you're one of my best friends????
ReplyDelete5:54 Yes, you should have said "syringe." The needles weren't reused. Really, it's irrelevant. Forget I mentioned it.
ReplyDelete2:10:
ReplyDeleteCan I get a look at your crystal ball? Apparently you put a lot of trust into it.
Also, if you think tort reform is going to lower our insurance costs, you are out of you GD mind, or delusional. You are the kind of zombie who has bought into the insurance industry's fear campaign. News flash: They are lying to you! Did med mal premiums go down much, if at all, after the med mal tort reform? No. They are feeding you full of shit, and you are lapping it up. The sad thing is, there are A LOT of people like you who are so easily convinced. Suckers.