Delaware Supreme Court Upholds Order that Wal-Mart Produce Documents Related to Bribery Allegations

July 25th, 2014  |  by Arlin Crisco  |  Published in Discovery

The Delaware Supreme Court listens to oral argument in Wal-Mart Stores Inc. v. Indiana Electrical Workers. The court affirmed an order that Wal-Mart disclose internal documents related to a bribery scheme.

The Delaware Supreme Court listens to oral argument in Wal-Mart Stores Inc. v. Indiana Electrical Workers. The court affirmed an order that Wal-Mart disclose internal documents related to a bribery scheme.


 

Wilimington, Del—After explicitly adopting the Garner doctrine, an exception to the attorney-client privilege, the Delaware Supreme Court affirmed an order that Wal-Mart provide a shareholder with internal documents concerning company executives’ knowledge of an alleged bribery scheme. However, the July 23 decision, in Wal-Mart Stores Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, also required shareholder IBEW to return private documents that had been stolen from the company by a whistleblower.

The suit stemmed from a 2012 article in The New York Times, detailing Wal-Mart executives’ inadequate response to an alleged bribery scheme by officers at its Mexico subsidiary. In anticipation of pursuing a derivative suit, the IBEW filed a claim under Del. Code § 220 and demanded internal documents related to the scheme. The Chancery Court of Delaware ordered Wal-Mart to disclose a wide range of documents, including communications between Wal-Mart executives and attorneys. In its decision, the chancery court relied in part on the Garner doctrine, an exception to the attorney-client privilege that arises when a corporation is accused of acting inimically to a shareholder’s interest.

Adoption of the Garner Doctrine

On appeal, Wal-Mart argued that the supreme court had never adopted the Garner doctrine in a plenary proceeding, much less a § 220 claim. The Delaware Supreme Court acknowledged that it had never explicitly adopted the Garner doctrine. However, after noting the doctrine’s history, including previous chancery decisions that successfully relied on the doctrine in § 220 claims, the supreme court explicitly adopted Garner, holding it applicable in plenary suits and §220 actions. While the court also held that parties must meet the “necessary and essential” requirement to produce documents under §220 before consideration of the Garner doctrine and its “good cause” standard, it found that the chancery court properly made those separate determinations in the IBEW suit.

Return of Certain Whistleblower Documents

The decision also upheld the chancery’s court’s order requiring IBEW return whistleblower documents that had not been published by The Times or a subsequent federal congressional investigation. According to the supreme court, the documents, which Wal-Mart claimed had been stolen by a former employee, remained protected to the extent that they had not become available to the public. However, the court noted that the documents could later be found within the wide range of information Wal-Mart was required to disclose under the § 220 order.

Wal-Mart faces derivative suits throughout the country based on the bribery allegations, including federal suits in Texas and Arkansas, as well as state-law claims in Delaware.

Click here to view oral arguments before the Delaware Supreme Court.

Click here to read the full opinion.

 

Robinson Attorney Says $23.6 Billion Punitive Award Changes the Tobacco Litigation Landscape

July 23rd, 2014  |  by Arlin Crisco  |  Published in Engle Progeny, Mass Torts, Products Liability, Punitive Damages, Tobacco Litigation

Robinson v RJ Reynolds

Christopher Chestnut delivers the closing argument in Cynthia Robinson v. R.J. Reynolds Tobacco. Chestnut called the jury’s $23 billion verdict an opportunity for change in the tobacco industry.


An attorney in Florida’s record-setting tobacco case said the jury’s $23.6 billion punitive award was a response to tobacco companies’ apparent indifference to claims against them, and he hailed the verdict as an “opportunity for the tobacco industry to reconsider its conduct.”

Christopher Chestnut, part of the plaintiff’s legal team in Cynthia Robinson v. R.J. Reynolds Tobacco, described the award, the largest to-date in Florida’s Engle progeny cases, as a landmark win in tobacco litigation. “It changes the whole landscape,” Chestnut said.

On July 18, an Escambia County, Florida jury awarded more than $23.6 billion in punitive damages to the widow and son of Michael Johnson Sr., a smoker who died from lung cancer in 1996. The suit had originally been part of Florida’s Engle class action claim against tobacco industry defendants. However, an award for plaintiffs was vacated and the class ultimately decertified, exposing tobacco defendants to potential liability in thousands of individual claims. Tobacco companies have faced mixed results in the Engle progeny cases decided so far. However, punitive awards in earlier Engle progeny cases have generally run in the millions of dollars. Chestnut said those earlier awards, and the indifference by R.J. Reynolds to those damages, may have contributed to the award in Robinson. He pointed to defense counsel’s seemingly nonchalant reference during closing arguments to the more than $100 million R.J. Reynolds has paid in prior Engle progeny cases. “Those awards didn’t get their attention,” Chestnut said. “The $23 billion got their attention.”

Chestnut said he believed the evidence that most resonated with jurors was video of a 1994 congressional hearing in which tobacco industry leaders testified that cigarettes were not addictive. Chestnut said the testimony, contrasted with evidence of tobacco industry internal documents acknowledging the addictiveness of nicotine, established R.J. Reynolds’s complicity to cover up the dangers of smoking and supported the large punitive award. “We called them liars and called their practice for what it was: lies and greed,” Chestnut said.

Although some legal analysts, including loss-of-life compensation expert Ken Feinberg, believe the punitive award won’t be upheld, Chestnut said he believes Robinson may establish a new trend for larger verdicts. “This is an opportunity for meaningful change” in tobacco litigation, Chestnut said. “They called this a ‘runaway jury,’” Chestnut said. “They are a runaway company…. I hope this award resonates” going forward.

 

New Jersey Superior Court Upholds $11.1 Million Verdict in Bellwether Pelvic Mesh Case

July 22nd, 2014  |  by Arlin Crisco  |  Published in Products Liability, Punitive Damages

Atlantic County, NJ–A New Jersey Superior Court judge upheld an $11.1 million jury verdict awarded last year in a bellwether product liability case against transvaginal mesh manufacturer Ethicon Endo-Surgery Inc.

In Linda Gross v. Ethicon, Judge Carol Higbee of the Atlantic County Superior Court denied Ethicon’s motion for a new trial and a judgment notwithstanding the verdict, ruling that “strong evidence” supported Gross’s product liability claims against Ethicon’s Prolift, a device use to treat vaginal prolapse. Gross argued that she underwent multiple surgeries to remove the device after it hardened and eroded through her vaginal wall. She also claimed that long-term damage caused by the Prolift left her unable to sit for long periods of time without pain. The jury awarded Gross $3.35 million in compensatory damages and $7.76 million in punitive damages after finding Ethicon, a subsidiary of Johnson & Johnson, Inc., misrepresented the Prolift to Gross and failed to adequately warn her surgeon of its risks.

The case is one of more than 5,950 suits across New Jersey as part of In Re Pelvic Mesh/Gynecare. Additionally, more than 19,000 vaginal mesh lawsuits have been filed against Ethicon and Johnson & Johnson as part of federal multidistrict litigation brought before the U.S. District Court in the Southern District of West Virginia.

Ken Feinberg: Record Punitive Award in Engle Progeny Tobacco Case Won’t Stand

July 22nd, 2014  |  by Arlin Crisco  |  Published in Engle Progeny, Mass Torts, Products Liability, Tobacco Litigation

 

Loss-of-life compensation expert Ken Feinberg details the $23.6 billion award in Cynthia Robinson v. R.J. Reynolds Inc.

Loss-of-life compensation expert Ken Feinberg analyzes the impact that the  $23.6 billion award in Robinson v. R.J. Reynolds will have on future Engle progeny cases.


 

Following the $23.6 billion punitive award in Cynthia Robinson v. R.J. Reynolds Tobacco Company, the largest award to-date in Florida’s Engle progeny tobacco suits, Courtney Svajian interviewed loss-of-life compensation expert Ken Feinberg on the verdict and its impact. Although Feinberg said he believes the award is an aberration that won’t be upheld, he said it could serve as the impetus for tobacco companies to consider alternatives to resolve remaining Engle progeny cases.  Click here to view the interview.

Jury awards a $23.6 billion in Robinson v. R.J. Reynolds suit

July 20th, 2014  |  by csvajian  |  Published in Engle Progeny, Punitive Damages, Tobacco Litigation, Toxic Torts, Verdict

Escambia County, FL – The jury in Robinsons v. R.J. Reynolds, et al. returned a $23.6 billion punitive damages award on Friday. This four week trial was filed by widow, Cynthia Robinson in 2008 after her husband passed away at the age of 36.

The jury also awarded $16.8 million in damages for the loss of companionship and protection for Cynthia and the loss of parental companionship and guidance for the decedent’s son.

Robinsons’ suit was an Engle progeny suit, meaning it was initially part of the large class action lawsuit against a number of tobacco companies that was awarded $145 billion in damages. The Florida Supreme Court overturned this verdict in 2006, and the plaintiffs have since brought their cases against the companies individually.

CVN streamed the entire proceeding live. Cynthia Robinson v. R.J. Reynolds is now available to view on demand, along with dozens of other similar tobacco proceedings.

 

 

CVN Local to launch in September

July 10th, 2014  |  by csvajian  |  Published in Uncategorized

Atlanta, GA – CVN, a national news organization providing coverage of civil litigation throughout the US, is expanding to include coverage of regional proceedings through its CVN Local offering.  Starting at $99 per month, CVN Local will provide unprecedented access to courtrooms by tracking dockets and covering proceedings via video recordings and editorial articles. The video of the proceedings will be available for on demand access.

Starting with Georgia in September, CVN will continue its roll out of CVN Local to Florida, California, Nevada, New Jersey, South Carolina soon thereafter. Check back for launch dates for your region or email sales@cvn.com to be notified when your region’s launch date is set or to add your state to our roll out.

To suggest a case you would like covered, click here - http://cvn.com/suggestions/new


 

Planned Launch Dates:

Courtroom Connect and LexisNexis to Bring Video and Audio Content to LexisNexis Law School eBooks

June 30th, 2014  |  by csvajian  |  Published in Announcements, CVN

NEW YORK, June 30, 2014 – LexisNexis® Legal & Professional, a leading provider of content and technology solutions, and Courtroom Connect today announced that LexisNexis will license, feature and promote the Courtroom Connect academic content, CVN Law School, within law school eBooks and through other channels. This broad integration of video and audio content will be named LexisNexis® Courtroom Cast powered by Courtroom View Network. “Many law students find it difficult to develop a deep understanding of the material by text alone. They can greatly benefit from additional resources to complement their books,” said Olympia Duhart, co-president of the Society of American Law Teachers and professor of law at Nova Southeastern University. “The new offering from LexisNexis and Courtroom Connect will help address these needs. I’m excited about the learning opportunities created by video and audio embedded into law school eBooks. This will bring an important layer to my teaching, and a critical learning tool to students.” CVN Law School is the academic portal of Courtroom View Network, a pioneer in delivering on-demand multimedia content to the legal academic environment. It offers students and faculty a searchable, online learning platform with more than 2,000 audio-recorded judicial opinions and thousands of hours of video footage of U.S. legal proceedings. The platform also features video training libraries based on original courtroom video, covering 87 topics in the key course areas of Evidence, Advocacy and Appellate Advocacy.   LexisNexis Courtroom Cast will offer content in two ways:

  • Access via eBooks – LexisNexis will integrate courtroom video and audio case files within select legal eBooks used by law students, taking readers directly from the text to the courtroom with video or audio from LexisNexis Courtroom Cast.
  • Video & Audio via the Web – CVN courtroom video and audio will be offered via the rebranded portal to new and existing law school libraries, students and other customers. Additionally, LexisNexis will engage with law professors to encourage use of the LexisNexis Courtroom Cast resources as teaching tool in association with classes.

“Multimedia content from CVN Law School enables law students to enhance their education by listening, watching and learning from real courtroom events anytime from anywhere,” said Andrew Feinberg, CEO of Courtroom Connect. “We are very delighted about the collaboration with LexisNexis. Their resources and expertise provide new, innovative and expanded ways to deliver content through eBooks and other means.”   “People read and comprehend information in different ways. That is why it’s key to ‘go beyond the book’ to provide rich, multi-media experiences which enhance the understanding of the law by established and aspiring legal professionals,” said Scott Meiser, senior director, Research Information – eBooks & Digital Library at LexisNexis. “The creation of LexisNexis Courtroom Cast is the most recent example of this.” Earlier this year, LexisNexis launched an innovative role playing game within select law school eBooks and announced that the collection of eBooks from the American Bar Association will be offered within the LexisNexis® Digital Library e-lending solution, which offers access to legal eBooks from the most popular mobile devices and computers.

For more information contact: Bryan Danilovich at (877) 838-9067 and bryan.danilovich@courtroomconnect.com.

5 Tips for Displaying Documents Well at Trial

June 30th, 2014  |  by csvajian  |  Published in Uncategorized

Using media effectively at trial is what we here at CVN refer to as a “courtroom critical” skill. Utilizing PowerPoint, TrialDirector, or videos throughout the trial engages the jury and can simplify complex issues through graphics. After watching several of our video clips, our friends at A2L Consulting wrote an article highlighting five tips for displaying documents well at trial. Read it here.

An example from Steven Thomas v. Clinton Mallett 10/31/07

An example from Steven Thomas v. Clinton Mallett 10/31/07

 

Tobacco Companies Gain Edge In First Engle Trials of 2014

March 13th, 2014  |  by David Siegel  |  Published in Mass Torts, Products Liability, Tobacco Litigation, Uncategorized, Verdict

Florida juries decided seven separate tobacco lawsuits in the first two months of 2014, with four of the verdicts favoring tobacco companies and three in favor of former smokers and their families.

The trials were all part of the thousands of Engle progeny cases working their way through Florida’s courts. After the “Engle” class action resulted in a historic $145 billion verdict for 700,000 smokers and their families, the Florida Supreme Court decertified the class and ruled each case must be tried separately. The majority of subsequent individual trials have resulted in verdicts in favor of plaintiffs, but a recent string of victories for the tobacco companies could suggest a changing trend.

The first trial of the year began in Miami, Florida. Antonio Cuculino, represented by attorney Jeffrey Sloman of The Ferraro Law Firm, was awarded $5 million in January, after jurors found that years of smoking Marlboro cigarettes caused coronary artery disease. However the jury also found Cuculino, 69, to be 60% responsible for his own medical problems and reduced the verdict amount from $12.5 million. R.J. Reynolds Tobacco and Philip Morris USA Inc. were both defendants in the case, but the jury only found Philip Morris liable.

The next trial took place in Broward County, where Ft. Lauderdale jurors awarded the children of deceased smoker Georgia Cheeley $5 million, including punitive damages. Willie Cheeley and Iola Cheeley, represented by attorney Alex Alvarez, claimed R.J. Reynolds was responsible for their mother’s lung cancer. Despite the jury finding Georgia Cheeley 50% responsible for her health problems, the amount of actual damages awarded was not reduced due to the jury also finding in favor of the plaintiffs on a civil conspiracy claim against R.J. Reynolds. Florida law considers that an intentional tort and does not allow for reduction of damages in those circumstances.

The next trial resulted in the first defense verdict of the year, after another Miami jury found both R.J. Reynolds and Philip Morris not liable for deceased plaintiff Augustin Gonzalez’s death from cancer. The defendants successfully argued the cancer which eventually spread to Gonzalez’s brain and killed him was cancer of the lymph nodes and not the lungs, and could not have been caused by tobacco products. William Geraghty and Frank Cruz-Alvarez of Shook Hardy Bacon represented Philip Morris, and Harold Gordon of Jones Day represented R.J. Reynolds.

R.J. Reynolds then prevailed in Miami again. Last month jurors found the tobacco company not liable for the death of Charlene Wendel. The only defendant in the case, R.J. Reynolds was represented by Ursula Henninger and Frank Bayuk of King & Spalding, and they convinced the jury that Wendel was not addicted to nicotine and chose to smoke cigarettes with full knowledge of the associated health risks. The fact Wendel did not begin smoking cigarettes manufactured by R.J. Reynolds until she was 30 years old played a central role in the defense’s arguments.

Plaintiffs then notched another victory in Orlando, where the first Engle case to go to trial in Orange County resulted in a verdict of over $5 million for John Goveia, whose wife Mary Goveia died of lung disease after smoking cigarettes for over 25 years. Both Philip Morris and R.J. Reynolds were defendants in the case, and the jury awarded the plaintiff $850,000 in compensatory damages and $4.5 million in punitive damages. Keith Mitnik of Morgan & Morgan represented John Goveia.

Tobacco companies closed out February with two more victories. Last month a Broward County jury found in favor of R.J. Reynolds in a case brought by the family of deceased smoker George Banks. Attorney Jeffrey Furr of King & Spalding argued to the jury that Banks’ health problems were caused by his years of heavy alcohol use and could not be definitively linked to smoking. R.J. Reynolds was the only defendant in the case. One day later, jurors in Tallahasse found in favor of both R.J. Reynolds and Philip Morris in a case brought by the family of Sonny Ellis, who died of lung cancer after years of smoking. Defense attorneys made a similar argument as in the Banks case, claiming Ellis was not addicted to nicotine and his cancer could not be directly linked to tobacco use. R.J. Reynolds was again represented by King & Spalding, along with Christopher Kreiner of Womble Carlyle Sandridge & Rice.

At least five more Engle trials are currently underway or set to begin over the next few weeks in Florida courtrooms. After four separate victories for the tobacco companies, plaintiffs and their attorneys will be eager to see if the streak continues. Courtroom View Network, which has recorded almost every Engle tobacco trial to date, will be webcasting and recording each of these cases gavel-to-gavel.

Ursula Henninger of King & Spalding delivers her opening statement on behalf of R.J. Reynolds. King & Spalding has delivered victories for R.J Reynolds at three Engle trials so far in 2014.

Ursula Henninger of King & Spalding delivers her opening statement on behalf of R.J. Reynolds. King & Spalding delivered victories for R.J Reynolds at three Engle tobacco trials so far in 2014.

Retrial of Accutane Lawsuit Begins After $10.5 Million Verdict Reversed

January 30th, 2014  |  by David Siegel  |  Published in Accutane, Kendall v. Roche, Pharmaceutical, Uncategorized

Atlantic City, NJ – Opening statements began today at a trial involving claims, that the widely prescribed acne medication Accutane caused inflammatory bowel disease, known as IBD, in a female plaintiff which led to the removal of her colon.

Hoffman-La Roche, the Switzerland-based manufacturer of Accutane, is accused by plaintiff Kamie Kendall of not adequately warning her or her prescribing physician about known risks of gastrointestinal disease associated with taking Accutane. Kendall began taking Accutane in 1997 at the age of 12 to treat cystic acne.

Today’s proceedings are part of a retrial, after a jury in 2008 found in favor of Kendall and awarded her compensatory damages of $10.5 million. In 2010 a New Jersey appellate court vacated the verdict and ordered a new trial on the basis that Roche should have the opportunity to present jurors with statistical evidence related to the background rate of IBD in the general public as compared with the background rate in Accutane users. That evidence was not permitted during the first trial. The trial judge in the case, Hon. Carol Higbee, also referred to Roche’s evidence as “unscientific” in instructions to the jury.

The Supreme Court of New Jersey briefly stayed proceedings in the case earlier this month while Roche appealed Judge Higbee’s decision not to recuse herself from presiding over the thousands of Accutane cases consolidated before her in Atlantic City. Roche alleges various court rulings show a bias against the drug company, but their requests to have the case re-assigned were eventually rejected by the higher court, and Judge Higbee will preside over the Kendall retrial.

During his opening statement to the jury, attorney Michael Hook of Hook Bolton P.A. said Roche knew about the risks of intestinal disease associated with Accutane as far back as the early phases of animal research, when the drug was tested on dogs, according to a Courtroom View Network webcast of the trial proceedings. Hook told jurors that according to internal Roche documents, the body of evidence to support a causal relationship between Accutane and intestinal problems steadily grew throughout the 1980’s. “Their animal studies showed the risk. The human clinical trials showed the risks. The post marketing reports showed the risks,” said Hook. He then showed jurors the label on Accutane from 1984 next to a label from 1999 and highlighted how despite allegedly increased knowledge about risk of IBD, no changes were made.

Opening statements by attorneys for the defense are scheduled for tomorrow morning. During earlier trials involving Accutane, attorneys for Roche have argued IBD in some of the individuals who took Accutane was not caused by the drug, and adequate warnings were provided to patients and physicians.

In 2009, Roche discontinued the production of Accutane, known generically as isotretinoin, after juries awarded millions of dollars to other plaintiffs in cases in New Jersey, Florida and New York. In its statement to the U.S. Food and Drug Association notifying the agency of their withdrawing the drug from the market, Roche specifically cited high costs from personal-injury lawsuits as well as competition from generic manufacturers.

The current trial is expected to last from six to eight weeks. Courtroom View Network (“CVN”) is providing a gavel-to-gavel video webcast of the full proceedings. The underlying case is Kendall v. Hoffmann LaRoche Inc., ATL- L-8213-05, New Jersey Superior Court, Atlantic County (Atlantic City)

Plaintiff's attorney Michael Hook shows jurors Accutane labels from 1984 and 1999 during Thursday's opening statements.

Plaintiff’s attorney Michael Hook shows jurors Accutane labels from 1984 and 1999 during Thursday’s opening statements.