January 2008 Archives

Ace Insurance Company received a bit of its own medicine in a recent Superior Court Opinion. The court ruled that Ace had not given timely notice of a claim for bad faith to its insurer and that the insurer need not show prejudice in receiving the late notice. Pennsylvania courts appropriately have required a showing of prejudice when the insured has an occurrence policy since the Supreme Court of Pennsylvania’s 1977 opinion in Brakeman v. Potomac Insurance Co. The Superior Court, however, refused to extend this rule to claims made policies in a ruling in line with other recent Pennsylvania cases. The Superior Court offered no reason why the rule should apply only to occurrence policies other than to say it would wait for the Supreme Court to decide the issue.

            Ace is appealing and, while we would normally be hesitant to root for an insurer before the high court, we will make an exception here where the plaintiff insurer is wearing the hat of the insured. There is no reason why late notice should relieve an insurer of its obligation to indemnify an insured in the absence of prejudice whether the underlying policy is occurrence based or claims made.

Jeffrey Resnick

This appeared first at blog-bioethics.net.

By Alan Milstein

January’s issue of Human Gene Therapy offers some intriguing commentary on the issue of informed consent in gene transfer trials. I became aware of the articles when a writer for TheScientist Blog called for my reaction to the Editorial by James Wilson, because I had represented the Gelsinger family after the death of their son in the experiment sponsored by Dr. Wilson and because I currently represent the family of Jolie Mohr, whose recent death renewed the debate over the informed consent process in this field of research.

My initial reaction reported by the caller reflects my surprise that Dr. Wilson would thrust himself into the debate when the informed consent process he used during his trial was so deficient.

In the Editorial, Wilson writes:‘I encourage the professional gene therapy societies and various related foundations to work together in the new year to undertake a critical review of the conduct of our clinical trials... it behooves us to get ahead of this issue and put in place more effective ways to assure that research subjects who courageously give of themselves can do so with a full and unbiased understanding of the risks and benefits of their participation.”

The Issue includes commentaries by Art Caplan and Jeffrey Kahn who both question whether subjects in such trials are ever able to understand the mechanism of gene transfer and the risks associated with this nascent technology. Both call for subject advocates to be included in the process so that the human subject has a representative who can understand the risks and benefits of participation and offer advice on whether participation is in his or her best interest. Kahn questions whether the name of the field itself, splattered through the pages of the informed consent documents, misrepresents gene transfer as a proven therapy when, of course, it is not. Caplan laments: “very little has changed in the past decade in the way informed consent is obtained from perspective subjects.”

Wilson makes no mention of the specific problems in the informed consent process in the Gelsinger experiment but some of the commentators imply they were primarily the inability of an 18 year old subject and his father to understand such complex research. While that certainly was the case, it ignores the failure of Wilson and his team to include in the document the monkey deaths that had occurred in the pre-clinical research, the prior adverse events involving other human subjects in the earlier cohorts, and the extent of the financial stake both Wilson and the University of Pennsylvania had in a successful outcome. These are issues the family could understand without a subject advocate.

What is most troubling is that Wilson has not written an explanation of what really went wrong in the Gelsinger research and what lessons should be learned. Such an article was supposed to be an express condition of the settlement of the claims brought by the government against Wilson and the University of Pennsylvania. At least this was the promise made by the United States Attorney to me and Mr. Gelsinger, a promise as yet still unfulfilled.

The subject of this massive document was “Filing of Amended Return, and Tax Statements” and Snipes made numerous claims throughout:

1.He doesn’t have a Social Security Number or Tax ID number

 2. his name is Wesley Trent Snipes, not WESLEY TRENT SNIPES

3. his advisors had filed that amended Form 1040 for 1997 in his name and he now issued a “sincere apology about the 1997 filing”; he claimed that when he filed the amended return in 2001, he “didn’t have the legal skills” that he does now and admitted that the “refund attempt may have been illegal.”

4. he complained that he was being both ignored and persecuted

5. he made it clear that he has not waived his sovereign immunity

6. he asserted that he is a “nontaxpayer” not a taxpayer and is therefore free from taxes

7. after claiming that he is a nonresident alien and instead of finally filing a normal Form 1040, he submitted a blank amended Form 1040NR-EZ and stamped “NOT LIABLE” on it in huge block letters

8. he called the prosecutor and IRS people “public dis-servants” among other insults

9. he threatened “significant personal liability” for anyone who tried to collect from him

10. “Warning: pursuit of such a high profile target will open the door for your increased collateral risk.” 

The California Supreme Court has held that employers may terminate employees who test positive for marijuana use even if such use is prescribed by a physician to treat chronic pain. The Court held in

 "We conclude that the lower courts were correct:  Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.  Under California law, an employer may require preemployment    drug tests and take illegal drug use into consideration in making employment decisions.  We thus affirm."

Ross had been terminated after his preemployment drug test revealed the presence of THC, though he had given the drug testing company and his employer a certification from his doctor that the marijuana was used to treat chronic back pain. California is one of thirteen enlightened states with a Compassionate Use Act which permits marijuana use for medical reasons. Some medical historians note that marijuana or cannabis has been used for medicinal purposes for over 4000 years and, prior to the introduction of aspirin in the mid- nineteenth century, was widely used to relieve pain.

Despite the clear views of the people of California in approving such legislation, the majority reasoned that the Act did not “eliminate marijuana’s potential for abuse or an employer’s legitimate interest in whether an employee uses the drug.” 

The dissent recognized that the  majority “disrespects the will of California’s voters” in failing to protect an employee’s off-duty use of marijuana where a doctor had recommended it. Termination of such an employee, according to the dissent, would be a violation of the California Fair Employment and Housing Act unless the employer could demonstrate that the off-duty use would impair the employer’s operations. The employer offered no such defense in this case.

Alan Milstein

  A Yiddish Proverb claims "Borrowed brains have no value." Maybe. But not when it comes to litigation.  

          When 30 year old Mark Albrecht drowned after an epileptic seizure, the state ordered an autopsy by the local coroner. After the procedure, the body was returned to the family for burial. What was not returned was Albrecht’s brain which had been removed by the coroner and later cremated and discarded as medical waste.

            The family filed a class action lawsuit against all of Ohio’s coroners. At issue is whether the next of kin have a protected right in the organs of their loved ones or at least the right to be notified after the organs are removed with the opportunity to claim them when the state no longer needs them. The federal court certified the issue to the Ohio Supreme Court which just heard oral argument in the matter. The briefs can be accessed on line as can the oral argument.

            Both sides claim an adverse result will lead to an avalanche of further trouble. The coroners claim a plaintiff’s win here would greatly restrict the right of the state to conduct autopsies, an argument with little merit. The plaintiffs, on the other hand, claim scientists would view a decision favorable to the defense as an invitation to harvest organs obtained in autopsy for use in medical research.

            The bottom line is that it would seem to ask little of the coroners if they had to give notice to the interested families of the autopsy procedures and the right to obtain the removed body parts after the autopsy is completed.

Alan Milstein

Here is an article in TheScientist Blog which includes my reaction to the Editorial by James Wilson in the January issue of Human Gene Therapy.

Alan Milstein

If you have ever thought it odd that your physican wrote your prescription on a pen inscribed with the very logo of the company whose drug he or she was prescribing, you are not alone. Now, the

In response, SMDC employees turned in 18,700 items, including Nexavar pens, Combivir note pads, Vioxx mouse pads, Advair and Levitra clipboards, a disembodied stuffed nose from Allegra that exclaims, "That's snot funny," clocks, mugs, surgical caps, calculators, tape dispensers, and a stress-relieving squeeze toy made to look like a red blood cell.

            Not surprisingly, BigPharma is not pleased that its sales representatives have to cease such back-door direct to patient marketing techniques. “This is the first time I've ever heard of a systematic round-up of pens," said Ken Johnson, senior vice president of Washington, D.C.-based Pharmaceutical Research and Manufacturers of America. "Clearly there's a marketing backlash we've seen in a number of states. But this is a bit draconian."

          Not according to Dr. Sidney Wolfe, director of health research for Public Citizen, a nonprofit consumer advocacy group in Washington: "A hundred thousand a year is nickels and dimes compared to the savings patients will experience when they aren't prescribed the most expensive drugs inappropriately. All this stuff that's handed out is really influence peddling. It's legalized bribery."

Alan Milstein

The New Jersey legislature amended the state's Law Against Discrimination ("LAD") effective January 13, 2008. The amendment requires employers to reasonably accommodate the sincerely held religious beliefs  of its employees and applicants, including allowing time off to observe the Sabbath or other holy days, unless to do so would impose an undue burden. 

      The amendment provides that an employer may not "impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance" unless "after engaging in a bona fide effort the employer demonstrates that it is unable to reasonably accommodate the religious observance or practice without undue hardship on the conduct of the employer's business."

       The amendment does not define "bona fide effort" to reach a reasonable accommodation. As to "undue hardship, the amendment defines it "as an "accommodation requiring (1) unreasonable expense or difficulty, (2) unreasonable interference with the safe or efficient operation of the workplace, (3) a violation of a bona fide seniority system or (4) a violation of any provision of a bona fide collective bargaining agreement. The amendment further provides "an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed," and (2) no accommodation is required "where the uniform application of terms and conditions of attendance to employees is essential to prevent undue hardship to the employer."  

    As to the effect on pay and benefits of granting a religious accommodation, the amendment provides an employee is not entitled to any "premium wages"or "premium benefits" that would otherwise be applicable to the hours worked by the employee as an accommodation.  So if an employee works the night shift or a Sunday or holiday that is not his or own as an accommodation, the employee is not entitled to any pay differential that might otherwise be applicable.

An article published today in the

While the drug companies must report the results of all their clinical trials to the FDA, the agency at present is prohibited from publishing the results on its own.

This system has to be changed. Not only do human subjects and patients have the right to review all material information about the drugs or therapies they have been prescribed, but physicians also have the need to review material information before they suggest a particular drug or treatment. While BigPharma may have a monetary interest in keeping negative information about their products from the public, the interest in public health is what the FDA is obligated to protect.

Alan Milstein

This first appeared at Blog.Bioethics.Net.

It’s official. Chimpanzees are not human beings. So ruleth Austria's Supreme Court. The court recently rejected a petition to appoint a trustee for the chimp, shown at the left, named Matthew Hiasl Pan. The case arose when Pan’s shelter declared bankruptcy. Animal rights activists wanted to ensure Pan and his roommate Rosi didn’t wind up homeless but, under Austrian law, personal gifts could not be made to animals. Some clever member of the group thought the solution was  to have the chimp declared a person. The court, however, failed to play along.

Interestingly, both chimps were captured as babies in Sierra Leone and were smuggled into Austria to be used in pharmaceutical experiments. Customs officers intercepted the shipment and placed  Pan and Rosi in the animal shelter.

SSKRP has been on the forefront of making favorable law for insureds on the issue of collapse. Two cases make this point.  

            In  401 Fourth Street,Inc. v. Investors Insurance Group, the insured’s building was bowing and in imminent danger of collapse. When it contacted its insurance company, it received a peculiar response. Wait until it falls, the company said, because we won’t pay you before then to prevent the harm that might come from the building’s fall.

 This was a case of first impression for the Pennsylvania Supreme Court. The state’s lower appellate courts had always ruled against the insureds on this issue, holding that collapse meant collapse not risk of collapse, even if such a holding created a dangerous dilemma for an owner of building in such a condition. The Supreme Court reversed, changing the law of collapse in the Commonwealth. The Court held that the reasonable expectation of an insured is that insurance policies cover claims that a building is about to collapse because of a covered event. In other words, the imminent risk of collapse is recoverable damage and no one should have to wait until further damage develops.

  The other case had an interesting twist. Christ Memorial Episcopal Church was the oldest and grandest of the churches in the Diocese of the Reformed Episcopal Church. It had been built in the last quarter of the nineteenth century and its elegant 171 foot steeple was the tallest structure in West Philadelphia. The steeple, however, was in serious disrepair. In fact, an engineering firm had recently determined it was in imminent danger of collapse. But unlike the building in 401 Fourth Street, this risk of collapse was caused by wear and tear which was not a covered cause of loss under the church’s policy with Guideone Elite Insurance Company.

There were only fifty members in the congregation and they could hardly afford the two million dollars it would cost to repair the steeple. Then on a hot August night, as if by divine intervention, lightning struck the steeple causing it to fall. The insurance company refused coverage claiming that the steeple was so weak from wear and tear the company should not have to pay the more than seven million dollars it would cost to replace the damage as new.

The issue for the court was a familiar one. What do you do when wear and tear weakens a structure but a covered event causes it to fall? The court found in favor of coverage. Even if wear and tear so weakens a structure it would fall soon anyway, if it falls because of a covered event, the company must pay, even if it would not have fallen had the structure been sound. An act of God, in other words, is a risk the insurance company assumes when it takes the church’s premiums.

Jeffrey Resnick 

Over at SCOTUS are links to the many amicus briefs filed in support of the District of Columbia in the upcoming Second Amendment case before the United States Supreme Court. The list of amicus is impressive, all arguing that the Amendment never was intended to guarantee an individual’s rights to gun ownership. The Bush Administration filed a brief arguing the contrary position.

Everybody loves a good story about hypocritical politicians but the Chuck Rosenthal scandal may be the best one yet. Rosenthal is the District Attorney of Harris County, Texas, the county with the highest number of executions of any county in the land. His office even sought the death penalty for Andrea Yates, the clearly emotionally troubled woman who drowned her five children. Rosenthal, a self-proclaimed evangelical conservative, believes capital punishment is part of God’s plan.

            Apparently, Rosenthal has some plans of his own. Some 860 of his emails recently surfaced in a civil rights suit against his office. Rosenthal had argued the emails were protected by his constitutional right to privacy established in cases like the one he lost in the United States Supreme Court in which he argued that Texas should be allowed to outlaw homosexual practices.

            In one email, the married Rosenthal tells his legal assistant who he now claims was only a former paramour: “The very next time I see you I want to kiss you behind your right ear.” In others, Rosenthal forwards rather lame racist and sexist jokes and videos. Now the state’s attorney has opened up an investigation into whether Rosenthal also illegally used his office email for campaign activities. As far as we know, such indiscretions do not yet carry the death penalty in Texas.

Alan Milstein

From the annals of crime comes an interesting

      Lawrence Cohen, along with two others, owned and operated a storefront business where they sold books, tapes, videos and other instructional materials explaining how to legally stop paying income taxes.  Frequently, as part of his consultation services, Cohen advised clients to file a “zero return,” a tax return with zeros placed on the income reporting lines which generate refunds if someone has had income tax withheld during the course of the year.

   The Justice Department does not take kindly to such enterprises and it charged Mr. Cohen with various federal tax and other criminal offenses; he was convicted in the District Court.  All criminal acts generally require that there be some intentional conduct and in tax crimes that intent is couched in terms of willfulness.  On appeal, Mr. Cohen argued that he did not have that requisite willfulness but that he could not prove this defense when the court precluded his psychiatric expert who had opined that Mr. Cohen suffered a “mental disease …bearing on … the issue of guilt.”

     The expert had diagnosed Mr. Cohen as suffering from a narcissistic personality disorder and concluded that he “did not intend to violate the law, as would be the case with a criminal who acted out of a desire for personal gain” but rather “[h]is behavior is driven by a mental disorder as opposed to criminal motivation…Although it is true Mr. Cohen was not delusional or psychotic and was in possession of basic mental faculties, his will was in the service of irrational beliefs as a result of narcissistic personality disorder.”  The report also noted: 

Because [Cohen’s] beliefs are fixed and have led him to significant adverse consequences, he is irrational to the point of dysfunction, demonstrated by his stubborn adherence in the face of overwhelming contradictions and knowledge of substantial penalty.  …Despite evidence to the contrary, his psychological needs dominated his mentation…This is the nature of the narcissistic personality in which the sufferer could essentially pass a lie detector test when asked commonsensical questions while giving improbable answers. 

   The United States Court of Appeals for the Ninth Circuit reversed, concluding that psychiatric expert testimony on narcissistic personality disorder is admissible to help a jury determine intent.  The Court of Appeals reasoned that the expert testimony could have helped Mr. Cohen counter the government’s arguments that he knew the “zero returns” were false because, once Mr. Cohen obtained a belief about the validity and legality of his conduct, he would cling doggedly to that belief even in the face of overwhelming contradictions. 

           So that rude patron at the next table exhibiting a socially repugnant level of narcissism while out to dinner just may be building a criminal tax fraud defense. 

John Hanamirian 

            The New Jersey Assembly has passed an amendment to the state's Wrongful Death Statute allowing claims for pain and suffering as well as for mental anguish and loss of companionship. Previously, only pecuniary damages were permitted. Here is a copy of the Amendment.

It might normally be hard to root for someone like Jose Padilla. He is a former Chicago gang member who converted to Islam and allegedly attended terrorist training camps in Central Asia, then was arrested coming through Chicago’s O’Hare Airport with $10,000 in cash and a list of suspected Al Queda agents. Last year, he was convicted in Florida on charges he was part of an overseas terrorist network. But when his opponent is John Yoo, it’s an easy call as to who has done greater harm to the interests of Justice in the United States.

            Padilla’s attorneys filed suit in federal court in California against the former deputy assistant Attorney General who drafted the so called “Torture Memos” for his bosses in the Bush Administration. Included in the memos are such gems as: "There is a category of behavior not covered by the legal system ...If you were an illegal combatant, you didn’t deserve the protection of the laws of war... They were tried in a military court, and executed"; and Congress has no power to "tie the President’s hands in regard to torture as an interrogation technique."

            Now, incredibly, the former clerk to Justice Clarence Thomas, teaches law at UC Berkely. The suit was filed by Jonathan Freiman of Yale Law School, Yoo’s alma mater. Freiman issued a statement, saying: “John Yoo was central to the justification and creation of the torture system. Without his legal green light, it never could have happened. The Torture Memos are a cynical how-to guide for government officials eager to break the law. . .What Yoo seems to have forgotten is that lawyers are not above the law.”

Here is a copy of the lawsuit.

Alan Milstein

 

  

“When a man wants to murder a tiger, he calls it sport; when the tiger wants to murder him, he calls it ferocity. The distinction between crime and justice is no greater.” George Bernard Shaw

            The great tiger litigation is heating up. Criminal defense attorney Mark Geragos has signed on to represent the two brothers mauled by Tatiana at the San Francisco Zoo. Geragos denied the humans had done anything to incite the animal, stating any such assertions were part of “a campaign of disinformation and misinformation” by zoo officials.

          Zoo director Manuel Mollinedo responded, saying: "All I know is that something prompted our tiger to jump out of her enclosure." Sam Singer, the zoo’s public relations director, added that the word of a criminal defense attorney should be taken "not just with a grain of salt but with a ton."

          Geragos appears to have a pretty good case, to say the least. The zoo’s enclosure was undersized, the “moat” was dry, the staff seemed to doubt the initial reports that the tiger was on the loose and apparently kept the police at bay outside the gate. Even if Geragos' clients taunted the tiger, zoos should expect such unmanly behavior on occasion and make sure their animals, though justifiably peeved, should not be able to retaliate.

Alan Milstein

  Ms. Ferguson and Mr. McKiernan made a deal. He would donate his sperm and would never seek visitation; she agreed his donation would remain anonymous and to never seek parental support. It had all the hallmarks of an anonymous sperm donation except it was a private deal and the parties had previously had a romantic relationship.

            Ms. Ferguson soon gave birth to twins. She married and, for five years, honored the deal with Mr. McKiernan. Her bond was hardly her word, however, and she brought suit against the father of her twins for child support. The trial judge expressed his dismay at her dishonest behavior but, because the deal was not binding on the twins, found the agreement was unenforceable and contrary to public policy. The Superior Court affirmed.

            The Pennsylvania Supreme Court would have none of it, or at least 3 of the 5 Justices who participated. The Court acknowledged the Pennsylvania statute that seemed to control the outcome against the father and for the benefit of the children. It acknowledged the case law that seemed to affirm that parents can not contract away a child’s benefit. Instead, the Court worried that a wrong ruling would keep truly anonymous sperm donors from making deposits in the Commonwealth, failing to see a difference between two exlovers  who privately agree to ignore the paternal obligations of the father and the transactions at a public sperm bank.

            Justice Eakin in dissent had it right. “Do these children,” he asked, unlike any other, lack the fundamental ability to look to both parents for support? . . .Is the means by which these parents contracted to accomplish conception enough to overcome that right. I think not.” Neither do I.

Alan Milstein