Posts Tagged ‘appellate’

A Fish Tale

Thursday, November 6th, 2014

In the wake of the Enron collapse, the WorldCom fiasco, and the various other corporate scandals that occurred in the late 1990s, Congress enacted the Sarbanes-Oxley Act, which made it a crime to knowingly destroy or conceal “any record, document, or tangible object” with the intent to obstruct an investigation into potential wrongdoing. Seems straightforward enough, right? A statute aimed at preventing cover-ups of corporate fraud? Well, maybe not. It seems the statute is also being used to pursue all manner of fishy business.

The U.S. Supreme Court recently tackled argument in the case of Florida fisherman John Yates v. United States. In a bit of turnabout, it was Yates who got caught this time—by a fish-and-wildlife officer who found Yates had 72 undersized grouper on his boat. He issued Yates a civil citation and told him to bring the fish back to port. According to prosecutors, Yates played hard of herring and instead dumped the undersized fish, replacing them with others that met the size limit. A jury convicted Yates of a Sarbanes-Oxley violation—destroying evidence on porpoise—and he got 30 days in the tank, plus three years of supervision.

Now, Sarbanes-Oxley carries with it some pretty harsh penalties. It seems it was meant for the slippery eels and the real sharks, not small fry like Yates. That motivated Justice Antonin Scalia to carp about the wisdom of the prosecution. Justices Kennedy, Alito, and Breyer also seemed ready to school the U.S. Attorney. Nevertheless, Justice Department lawyer Roman Martinez pointed out that it was not the Court’s plaice to decide that obstruction-of-justice should be applied differently between minnows and whales. Justice Kagan also pointed out that Sarbanes-Oxley’s language does not necessarily contemplate corporate fraud as its sole target.

The Court will mullet over for now and decide whether Yates is on the hook or will be the one that got away. A decision is expected in the summer of 2015.

Tip o’ the hat to Mary Flood.


Staying on message….

Monday, October 13th, 2014

I’m not a big fan of arbitration agreements. I’m not talking about a voluntary agreement between parties to litigation to resolve an existing dispute or lawsuit by submitting it to an arbitrator or panel of arbitrators in lieu of litigation. No, I’m talking about pre-suit, pre-dispute agreements whereby parties agree (or are required to agree as a condition of doing business) to forego any remedy in court, in favor of a panel of hired guns, who may be industry insiders or—worse—paid by one of the parties. These kind of agreements require a foresight that most people simply don’t have, and anyone who says that arbitration is always a less expensive, more expeditious solution than litigation is full of it. It just isn’t true. That’s why I’m a little torn about last week’s decision by the Fourteenth Court of Appeals in Mission Petroleum Carriers v. Kelley.

In that case, one David Kelley was seriously injured in an 18-wheeler accident while employed by Mission Petroleum. Kelley wound up in the hospital, hooked up to a morphine drip and—according to his own later testimony—basically incoherent and unable to give legal consent to anything. It was during that time that a Mission representative showed up at his bedside to enroll him in Mission’s Health & Safety Plan, which would pay for his medical care, rehab, wage replacement, etc., presumably as a stand-in for workers’ compensation. The Plan also contained an arbitration provision that covered suits for injury of the kind Kelley had suffered. Kelley signed the agreement and Mission started paying benefits.

Fast forward several months and Kelley filed suit against Mission and a third party for his injuries. Mission moved to compel arbitration under the terms of its agreement but was denied. Mission then took an appeal to the Fourteenth Court.

Kelley argued to the Court that the arbitration provision was unconscionable and shouldn’t bind him because he was too high on painkillers to know what was going on when he signed it. In fact, he said he had no recollection at all of signing anything when he was in the hospital. But Justice Sharon McCally, writing for the appellate court, observed something that he should have noticed, namely, someone was sending him weekly checks of $935 and paying a bunch of his medical bills. Some of those checks even came in after he had already filed suit against Mission. The Fourteenth Court reversed and remanded the case with instructions to the trial court to send the parties to arbitration.

Much as I dislike arbitration as a cookie-cutter solution, it’s easy to see what motivated the Court here and hard to say it got it wrong. In for a penny, in for a pound: if you accept the benefits of a contract, you accept its responsibilities, too. Kelley couldn’t just keep on cashing those checks without asking where the money was coming from. Maybe if he’d at least refused additional payments once he was out of the morphine fog, the Court would have gotten to Mission’s behavior, which seemed a little sleazy. But Kelley just didn’t act like someone who had no idea he’d signed on to an agreement to receive money, and that counted for everything. Don’t contradict your words with your acts. It’s a good lesson to keep in mind for lawyers and non-lawyers, alike.


A move to restore sanity….

Sunday, March 3rd, 2013

Ragging on the Texas Supreme Court—particularly when it comes to the Court’s rulings on healthcare law—is not exactly a new pastime for me.  To be honest, I’ve probably said a lot more negative things about the Court’s interpretations of the Texas Medical Liability Act than I have positive things.  A lot more.  So it’s nice to be able to point out when I think the Court got something right.  And a couple weeks ago, it did exactly that in the case of Certified EMS v. Potts.

 Potts is kind of a big deal for those of us on the plaintiffs’ side of the bar.  Some time ago, the Texas Legislature required that plaintiffs in healthcare liability cases provide reports from qualified medical experts that support their allegations very early in a case or have the case dismissed.  And by “very early,” I mean before any kind of meaningful investigation beyond reviewing medical records.  No talking to opposing witnesses, no talking to defendants.  Figure it out from the records or have your case thrown out of court.  Sometimes, one theory is obvious from the records, but others aren’t so easily discovered.

The basic mechanism of the procedure is that a plaintiff has 120 days from the time he files his lawsuit to serve an expert report that addresses the three chief elements of his liability case—the standard of care, breach of that standard, and causation—on the defendant.  Once he serves that report, the defendant has 21 days to object to deficiencies in it, and the plaintiff usually gets another 30 days to cure that deficiency.  If the plaintiff doesn’t cure the deficiency, and the trial court agrees that it is a deficiency, the defendant can move to dismiss the case and recover his or its attorneys’ fees and costs from the losing plaintiff.  The idea is to weed out, at an early stage, frivolous cases—the ones that can’t be won by the plaintiff; no way, no how.

Years ago, the Court held that the only thing a plaintiff needs to do in an expert report is set out the basic stuff the defendant did wrong—the conduct the plaintiff’s suit calls into question—and show that his case has “merit.”  At the same time, the Court held that “showing merit” doesn’t mean proving the case, as would need to be done at trial, and it doesn’t mean removing all doubt as to whether or not the plaintiff can ultimately prevail.  But in the grand tradition of “give ‘em an inch, and they’ll take a mile,” health care defendants have taken what was, ostensibly, supposed to be a brief procedural matter and turned it into a mini-trial that can last well over a year, all the while running up costs that the health care liability law was supposed to limit.  Rather than saving objections to expert reports for those cases where there is a clear deficiency, many health care defendants and their lawyers—on marching orders from the real puppet masters, their insurance companies—object to every expert report they’re given and move to dismiss every case, regardless of its merit.  And that’s what happened in Potts.

The facts of Potts really aren’t as important as the holding.  That said, the plaintiff in Potts had set forth more than one theory of liability—against a corporate defendant, individually, and through one of its employees—but provided an expert report that supported only one of those theories—the one through the employee.  The defendant moved to dismiss—not the case—but the claim against itself, individually, though the vicarious claim would have survived.  The trial court denied the motion, and the First Court of Appeals affirmed, holding that the Texas Medical Liability Act seeks to dismiss entire cases or causes of action, not individual theories of liability, by its plain language.  The Texas Supreme Court’s opinion is a bit shorter on analysis (it specifically says that it doesn’t adopt the First Court’s rationale), but it reaches the same conclusion—supporting one theory of liability lets the case go forward as to every theory alleged (and even new ones that weren’t alleged before, as long as the defendant stays the same).

The holding itself is useful, but for me, the real significance of Potts is that it’s an effort by the Texas Supreme Court to cram the genie back into the bottle.  Recent precedents suggest that the Court is getting tired of the number of health care cases being brought up before it on procedural technicalities.  Potts stands as another in a line of cases that attempts to restore authority to trial courts over a procedure that has become—put bluntly—disrespectful of the authority of those trial courts.  With Potts, the Court has definitively cut off one avenue of appeal, and it may be only a matter of time before we eventually see a defendant held responsible for filing a frivolous appeal of an expert report matter.  Texas appellate courts are, understandably, reluctant to issue such rebukes, but one may be necessary before the landscape truly changes.  Nevertheless, the Texas Supreme Court has taken a needed step toward sanity with Potts.  That is something I am happy to write about, any time.


The Contemporary Constitution

Monday, March 12th, 2012

Norm Pattis writes today about Hon. J. Harvie Wilkinson, III, and his opinion on opening up the legal can of worms that is is the U.S. Constitution.  Judge Wilkinson, in an op-ed piece in the New York Times, suggests that all the debate over the meaning of the Constitution–and, I suppose, the increasing amount of it every four years–really does not serve us well.  Judge Wilkinson argues that elevating every argument to a discussion of Constitutional interpretation and values risks either demeaning the value of fully debated and vetted federal legislation or devaluing the laws of state and local communities.

Norm takes issue with the Judge’s piece, and, I think, understandably so.  While Judge Wilkinson argues that much of what passes for constitutional debate is really political argument, Norm argues against the kind of conservatism advocated by Judge Wilkinson because it would “keep the Constitution in its place;” that is, tied up in interpretations that are themselves governed by opaque rules of interpretation.  As Norm correctly and poetically observes, “Each generation recreates the document for itself.”  No one owns the law.

Norm’s position is one I’ve stated myself on this blog.  Nevertheless, I’m sympathetic to the basis for Judge Wilkinson’s argument.  To me, the real danger lies, not in the elevation of political argument to the constitutional level, but of the dragging down of the Constitution to mere politics.  How many times in recent years have we seen proposals for new Constitutional amendments, be they to define marriage, allow school prayer, require a balanced budget, or–let’s face it–see to it that Arnold Schwarzenegger is eligible to run for President?  The trend in our national discourse has been to have more and more of these proposed amendments come along.  And that says to me that the Constitution is being regarded as the ultimate political end run.  Tired of debating something? Get a constitutional amendment passed, and kick it all over to the courts.  Let them deal with the fallout.  Even if you can’t get it passed, you’ve taken an uncompromising position and can’t be accused of being wishy-washy.

The Constitution should be interpreted by each generation, but its interpretation should be governed in light of its history.  It doesn’t exist for the transient political whim of the moment, and I like to think that is what Judge Wilkinson was getting at.  There is always going to be a tension between fundamental rights and lesser ones when we examine them through the lens of the law.  As Justice Brennan once wrote, “the demands of human dignity will never cease to evolve.”  That is reason enough for flexibility in our Constitutional interpretation.  But present passion should always be safeguarded by long-term perspective.  The values enshrined by the Constitution are contemporary; but the underlying principles are also eternal.


Selling health

Sunday, November 20th, 2011

Anybody who watches the evening news has seen them—advertisements for prescription drugs of all sorts to ease chronic pain, lighten depression, make things that won’t get up get up, and make things that won’t stay in stay in.  Each comes with a soothing voiceover noting that the drug in question “is not for everyone” and that serious side effects can occur.  The litany of admonishments ends with sage advice to “ask your doctor” and a repetition of the slogan that started the whole ad.   End scene.

In Centocor, Inc. v. Hamilton, an appeal from the Corpus Christi Court of Appeals, the Texas Supreme Court now wades into the issue of whether a drug manufacturer can still rely on the “learned intermediary” defense that has long been a staple of any drug or medical device manufacturing defendant’s legal arsenal.  The defense essentially says that, if you give appropriate warnings about the dos and don’ts of using a particular drug or device to a patient’s doctor—the one who is actually prescribing the use of the drug or device in question—you are insulated from telling the patient, himself.  The law assumes that the doctor will pass on any necessary warnings to the patient because the doctor himself has a duty to the patient.

Does this make sense?  Well, yes and no.  On the one hand, a doctor does have a duty to his patient—both in the form of prescribing medications where the potential risk is outweighed by the reward and of educating himself and informing his patient of the potential side effects.  On the other hand, no doctor can be expected to read his patient the entire entry on a drug from the Physicians’ Desk Reference (PDR)—which exhaustively details the results of every study on a particular prescription medication.  If you read those full descriptions any time the doctor gave you a prescription, you’d never agree to take anything again, as they read like a catalogue of disaster akin to something from the Old Testament.  (No arthritis treatment has ever been connected to a plague of locusts, but just wait.)  Moreover, with drug companies now taking it upon themselves to advertise directly to consumers, do they have a duty to give all sides of the story?  And not just the one that makes their product look like a miracle cure?  (Notably, these drugs that are being advertised still can be prescribed only by a physician, so a physician’s involvement and approval is still very necessary.)

In Centocor, set for oral argument on December 8, the Court will likely consider the effect of all those ads on the nightly news.  Does the direct marketing of drugs to consumers create a greater duty for the manufacturers of those drugs, and is it a duty that they cannot fulfill by merely providing warnings to an intermediary?

It’s a good question.  Right now, patients get all the spin but very little of the real information.  Even so, it seems like manufacturers should be able to tell prospective buyers that their product exists and that it might be helpful.  One thing is certain though:  if the Court makes inroads on the “learned intermediary” defense, those voiceover warnings in the TV ads are going to be longer and louder.  Either that, or expect a free copy of the PDR any time you visit the pharmacy.

Tip o’ the hat to the Supreme Court of Texas Blog.

UPDATE:  Surprise!!!  They held for the drug manufacturer.


Things that make my head explode

Thursday, October 6th, 2011

Apologies to Kendall Gray for cribbing one of his catchphrases, but it seemed appropriate in response to . . . well, this.  Just . . . wow.

The gist of this abstract of a paper by Brian Flanagan, part of the law faculty at the National University of Ireland, Maynooth—and I’ll confess I haven’t read the paper, itself—is that the legal meaning of a statute and its literal meaning are two different things.  Now, that’s really not a huge revelation to most lawyers.  We’re used to dealing with technical meanings, and there are times that a word might be given a special definition by a statute or it may have a particular meaning through its use as a term of art in the profession.

But Professor Flanagan goes a step farther by stating that, if literal meaning isn’t determinative of legal meaning, it’s also not even relevant to legal meaning.  That is, it doesn’t even weigh in the decision of a correct legal outcome.

Even acknowledging that Professor Flanagan’s argument is an academic one and not an argument concerning practicality or application, I’m still left scratching my head.  The basic principles of statutory construction applied by Texas courts require that the literal meaning of a statute is the first place to look for its legal meaning, and if the statute is unambiguous, it’s the only place to look.  Does this lead to less than perfect outcomes sometimes?  You bet; sometimes even outcomes that seem just plain wrong.  But does it fulfill the ultimate purpose of law—to provide a set of rules for civil society that everyone can understand and abide by?  Generally, yes.  And it does it much better than the sort of ivory-tower regime suggested by Professor Flanagan’s essay.  The latter would seem to allow legal decisions based on what someone thought was a “preferred” outcome, rather than what the law said was the right one.  That way lies corruption.  And that way lies madness.

The meaning of the law should be accessible.  It shouldn’t be reserved to lawyers or academics because it belongs to us all.

Tip o’ the hat to Cheryl Stephens for the link to the Legal Theory Blog.


This is getting ridiculous….

Friday, July 1st, 2011

The definition of what constitutes “health care” for purposes of the Texas Medical Liability law just keeps on growing.  When you go to the doctor, and he makes a decision on how to treat you, there’s not anyone who can argue with a straight face that that’s not health care.  When you’re a patient at a hospital, and the nursing staff puts an IV in your arm and gives you medicine, same thing.  But now, any stay in a hospital, any visit to a doctor’s office, would appear to be “health care” by virtue of the latest opinion out of the Texas Supreme Court, Omaha Healthcare Center LLC v. Wilma Johnson.

In that case, the titular appellee, Wilma Johnson, sued on behalf of her deceased sister Classie Mae Reed, who died as a result of a bite from a brown recluse spider sustained while a resident of a nursing home run by Omaha Healthcare. Johnson sued for negligence, claiming the nursing home breached a duty to inspect, clean and use proper pest-control measures to thwart spider and insect infestations.  Viewing her case as a straight negligence case, instead of a health care liability claim covered by the expert report requirements of the Texas Medical Liability statutes, Johnson’s attorney did not serve the sort of expert report—detailing the standard of care, breach of the standard, and causation information—that the medical liability law requires in such a case.  Omaha moved to dismiss the case on the grounds of Johnson’s failure to provide the report.  The trial court denied the motion, and the Texarkana court of appeals agreed that this was the correct decision.  But the Texas Supreme Court disagreed.

Writing for a seven-justice majority, Hon. Phil Johnson noted that “the underlying nature of [Wilma Johnson’s] claim was that Omaha should have but did not exercise the care required of an ordinarily prudent nursing home to protect and care for Reed while she was confined there.”  But this begs the question, “what does a nursing home do that is not the ‘ordinary activity of a nursing home’?”  If everything it does is toward the ultimate goal of patient care, can it ever perform acts that are outside that scope and that are, thus, not “health care”?

In a dissent, Hon. Debra Lehrmann, joined by Hon. David Medina, called out the majority.  Noting that the Court has not—at least, not explicitly—stated that all injuries occurring in a health care setting are necessarily subject to the Medical Liability law, Justice Lehrmann suggested the Court’s decision does just that.  By bringing pest control—yes, pest control—within the ambit of “health care,” the Court changed the focus of the statute from the activity of the actor to the status of the actor.  As Justice Lehrmann noted, under the majority’s holding, a medical expert—someone with appropriate experience working in nursing homes—would need to testify concerning the proper standards of pest control for nursing homes as it relates to providing a safe environment.

But isn’t providing a safe environment a goal of every business, health-related or not?  What makes nursing homes, hospitals, and doctor’s offices so special?  The answer is—as is so often the case—our Texas Legislature at work, stacking the deck to favor those who they believe should win lawsuits, rather than leaving that decision to the juries properly empowered to decide.  Courts—even our highest—have little discretion when the Legislature tells them what to do.  But, Justice Lehrmann’s dissent injects a welcome note of common sense to the debate.  One can only hope that it is heeded at some point.


What is “health care”? Part 2.

Tuesday, April 19th, 2011

There are times you just know that the Texas Supreme Court is up to something.  You can tell from the cases accepted for review that have a recurring theme, and, while it’s often difficult to figure out what the Court will eventually say, you know something or other is coming down the pipeline.

A few weeks ago, the Court accepted review of two cases that might or might not fall under the Texas medical liability law.  I’ve expounded on various aspects of that law in several earlier posts.  The applicability of the medical liability statutes—Chapter 74 of the Texas Civil Practice and Remedies Code—is significant because of the procedural burdens—or protections, depending on how you look at it—that they place on parties to a case.  One of the most significant of those burdens is the expert report requirement.  The law requires that any plaintiff filing a healthcare liability claim serve a report from an expert witness or witnesses—usually a physician—outlining the medical facts and standards underlying the case within 120 days of commencing suit.  Failure to comply carries a heavy penalty.  The case gets dismissed with prejudice to re-filing, and, to add insult to injury, the plaintiff gets to pay the defendant’s attorneys’ fees.

So whether or not a case qualifies as a “healthcare liability claim” and is thus subject to Chapter 74 is a significant issue.  And that’s why two recent petitions granted by the Court caught my attention.  In Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, an appeal from Houston’s Fourteenth Court of Appeals, a defendant physician accused of sexually assaulting a patient moved for dismissal as a result of her failure to serve an appropriate expert report, thus attempting to classify her claim as a simple departure from a standard of medical care.  Both the trial court and the court of appeals rejected his argument.  Now the Supremes will get their say.

In Texas West Oaks Hospital, LP v. Frederick Williams, another case out of the Fourteenth, a hospital employee sued his employer for negligence following a fight with a severely paranoid-schizophrenic patient, prone to violence.  In the altercation between the patient and Williams, the patient died, and Williams was injured.  The patient’s family subsequently sued both the hospital and Williams under a healthcare liability theory, and Williams cross-claimed against the hospital.  The case raises interesting questions as to whether Williams’s cross-claim—because it arises out of an original healthcare liability claim—may itself be healthcare liability claim.  This was certainly the position taken by the hospital, but again, both the trial court and the court of appeals rejected it.

As defendants push harder and harder to bring more cases under the purview of Chapter 74, the Court may take this opportunity to set some sort of boundary.  One would hope so, because as things stand, Chapter 74 has the potential to swallow up a whole host of common law actions and inject itself, with potentially bizarre consequences, into actions far-removed from healthcare.  An inherent tension exists between the traditional cornerstone of medical liability—the physician-patient relationship—and the extensive reach of Chapter 74.  While a defensive tactic in years past was to disclaim any physician-patient relationship (and thus any sort of duty), the new idiom calls for openly invoking that relationship—or at least, to do so 120 days after the lawsuit has been on file.  And that means that the Legislature’s enactment of Chapter 74 is warping the common law in ways it probably was never intended to.  Once again, this is what happens when  politicians, as opposed to juries, decide to dictate who wins lawsuits.


The Healthcare Express trainwreck….

Monday, February 28th, 2011

In the latest procedural headache to arise out of Chapter 74, the Texas Medical Liability statute, the Texas Supreme Court issued four separate opinions in the case of Eberhard Samlowski, M.D. v. Carol Wooten. The four opinions—two affirming, as modified, the decision of the Tenth Court of Appeals; one concurring in the result and dissenting in part; and one dissent that would have reversed and rendered—reflect the difficulty judges have finding fairness when fairness was just about the last thing on the Legislature’s mind at the time it enacted the statutory scheme.  The trial court plaintiff, Wooten, won the right to continue to pursue her case.  The losers were the bench and the bar.

Wooten sued Dr. Samlowski for misdiagnosis and performing an unnecessary gall bladder surgery upon her.  She served a timely expert report—authored by Dr. R. Don Patman—on Samlowski in an effort to comply with the relevant provision of Chapter 74, which requires that a report detailing the whats and wherefores of the case be served on all defendants within 120 days of the lawsuit’s commencement.  Samlowski—as was his right—challenged the report as inadequate on the sole issue of causation and moved to dismiss.  Wooten—as was her right—moved for a 30-day extension of time to cure the alleged deficiency.  The trial court granted Samlowski’s motion and simultaneously denied Wooten’s.  Wooten took an appeal to Waco’s Tenth Court, which reversed the trial court judgment and instructed that Wooten should have her 30 days.  Samlowski appealed that court’s decision to the high nine in Austin.

Any first-year law student who has made it three-quarters of the way through Constitutional Law will tell you that the standard of review applied by an appellate court often determines the outcome of a case.  Put simply, limitations on what a court can do often decide a case, regardless of what the court might otherwise be willing to do.  In considering the adequacy of Chapter 74 reports and motions for additional time to prepare them, appellate courts are limited to an “abuse of discretion” standard.  That is, unless the trial court acted completely arbitrarily, they cannot disturb its judgment.

Each of the four opinions issued by the Supreme Court wrestled with the standard of review in its own way.  Justice Medina, writing for himself, Chief Justice Jefferson, and Justice Hecht, argued that the way for Wooten to show an abuse of discretion by the trial court in failing to grant her extension of time was to demonstrate that her report could have been made adequate within the 30-day window provided by Chapter 74 (and within the window of the court’s plenary power).  This would require her to by file an amended report and move for re-hearing of the court’s dismissal order.  If the trial court then denied reconsideration, the necessary showings for appeal would be in place.  But this flies in the face of abundant case law stating that the only matters relevant to determining whether a trial judge abused his discretion are matters before the court at the time it made its decision.  An amended report would not fit this criterion, and Justice Medina’s opinion thus seems to create a new procedure from whole cloth.

Justice Guzman, writing for herself, Justice Lehrman, and, in part, for Justice Wainwright, took a simpler approach, noting that an extension of time such as that sought by Wooten should be granted any time that an expert report’s deficiencies can be cured within the applicable time period to show that the case has merit.  She then suggested that “[a] report from a qualified health care professional stating a belief that a plaintiff has a claim against a defendant, even though elements of the report are deficient, should be sufficient for a trial court to determine the curability of the report.”  The trouble with this approach is the legion of Texas cases holding that such a conclusory statement constitutes no report at all and can support only dismissal under the abuse-of-discretion standard.  Justice Guzman’s opinion provides sadly little explanation of what the report she has in mind would look like.

Justice Johnson, writing for himself, Justice Green, and Justice Willett, dissented from the majority’s “reversal of an errorless trial court judgment.”  (Justice Medina’s opinion did, indeed, note that there was no error in the trial court’s denial of Wooten’s motion but reversed all the same “in the interest of justice.”)  Justice Johnson took Justice Medina’s opinion to task for creating a new procedure after the relevant decision was made.  But, in doing so, he created an even larger hurdle for any claimant.  Under Justice Johnson’s approach, a claimant is charged with making “a proper record on a motion to reconsider.”  Since, as his opinion noted, the determination of whether a report can be cured is a fact question, he appears to require that a claimant be prepared to go forward with a full-blown evidentiary hearing—presumably, with expert testimony—merely to justify obtaining a 30-day extension of time to say the same things in writing that would inevitably come out in the hearing.  The increased costs to claimants could be staggering in light of the limited purpose of the hearing.  Moreover, it would require a claimant to present, not just argument, but testimony to bolster the “curability” of a report that the claimant presumably does not believe defective in the first place.  It would require a claimant to adopt a host of contradictory positions within a single hearing.

Finally, Justice Wainwright, in an additional dissent, made perhaps the most cogent argument of the day and pressed to throw out the abuse-of-discretion standard for reviewing expert reports, altogether.  He suggested replacing it with a de novo standard, wherein the appellate court could review the decision from the ground up.  Such a measure, he argued, would promote consistency among the courts, and it would prevent a denial of an extension by the trial court from being the virtual death knell to a claimant’s case that it is now.

In enacting the procedural protections of Chapter 74, the Legislature ostensibly sought to weed out frivolous lawsuits.  But in providing the draconian sanction of dismissal as an avenue of first resort and lacing the statute with the language of discretion, the Legislature placed the entirety of a claimant’s case in the hands of a single trial judge, effectively removing much of the efficacy of the appellate system from the equation.  Despite loosening the standards for taking an appeal, the standard for actually winning one is still as difficult as ever for appellants.  Though the courthouse doors are open, the judges’ hands are often tied.  Thus, we see cases like this one, where the Justices must turn contortionists’ tricks to seek a fair result, and parties are left with a murky picture of how to protect their rights.  Mercifully, these are few and far between, trial judges rarely denying a claimant additional time to prepare a new or improved report.  But the rare case is still a case, and where certainty and clarity suffer, justice does, too.


EA and the NCAA v. the folks who play the games….

Tuesday, February 15th, 2011

What do the estates of the late Bob Marley and John Steinbeck, the NFL Players Association, and the Comic Book Legal Defense Fund all have in common?  All have weighed in on the case of Keller v. Electronic Arts, Inc., an interlocutory appeal of which is pending before the Ninth Circuit Court of Appeals. (In other news, there’s such a thing as the “Comic Book Legal Defense Fund.”)

Sam Keller, a former quarterback for Arizona State and the University of Nebraska, brought suit against Electronic Arts for its unauthorized use of his image in its NCAA Football 2007 game.  The game shows an unnamed player with Keller’s playing number, his listed height and weight from Nebraska’s media guide, and his home state.  The video-game-depicted Keller even has the characteristic visor he wore in his red-shirt senior season for Nebraska.  Keller sued under the theory that EA’s use of his likeness violated his “right of publicity”—both a statutory and common-law right, as recognized in California.  EA conceded that Keller’s complaint alleged a cause of action, but it also pressed several defenses in response, including the doctrines of “transformative use” and “public interest,” plus a defense for reporting, which is pretty much what it sounds like.

In a nutshell, the First Amendment protects artistic works that contain “significant transformative elements” or where the value of the work does not derive primarily from the celebrity of its subject.  In other words, if you’re going to use someone else’s likeness, get creative.  If you’re going to call it art, take some artistic license.  For example, one case found the doctrine protected a comic book publisher whose magazines depicted musicians Johnny and Edgar Winter as half-human, half-worm cartoon characters, and renamed them “Johnny and Edgar Autumn.”  (This really isn’t so bad as it sounds.  Have you ever actually seen Johnny Winter?)  In her examination of EA’s position, Judge Claudia Wilken, the trial court judge, ruled that EA’s depiction was insufficiently “transformative” to invoke the doctrine.  She rejected EA’s argument, as a result.

The “public interest” exception—true to its name—protects matters that are distinctly within the public interest, like depictions of politicians, celebrities, and yes, athletes.  The exception applies when the way a person makes a living naturally draws attention to who he is and how he does it.  Realistically, this is probably EA’s best argument, but it has problems all the same, as Judge Wilken again pointed out.  She noted that EA was not just reporting on events—historical or otherwise—but was creating something new and doing it with Keller’s likeness.  (Just not new enough to satisfy the “transformative use” doctrine.  Perhaps if they’d made him half-worm . . . .)

Finally, Judge Wilken rejected EA’s “reporting” defense on the grounds that it applies only to more traditional types of reporting, such as print, radio, and television journalism that relate actual, historical events.  EA’s use, according to Judge Wilken, went further than mere reporting about Keller.

College athletes have long complained about being unpaid pawns in the multi-billion dollar game of modern college athletics.  Indeed, the NCAA, universities, media outlets, and others have all made tidy profits from the labors of student-athletes, while censuring any athlete with the temerity to ask for a piece of the pie.  Keller—like the majority of players depicted in any of EA’s NCAA titles—is not one of those who attained professional sports glory.  His case, however, could change the landscape for all manner of media, from video games to movies to books to audio recordings.  If Keller can recover for the use of his image, presumably any college athlete in any sport can do the same, and the result could have a substantial impact on companies like EA—and, according to EA’s appellate briefing—on documentary filmmakers and anyone who writes an “unauthorized” biography or report.  But dire warnings of artistic catastrophe aside, is it too much to ask for a guy who now spends his days managing a hotel bar in Scottsdale to get a little something for generating so much wealth for others?

Tip o’ the hat to the Internet and E-Commerce Law Blog.