Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.
Showing posts with label DOJ. Show all posts
Showing posts with label DOJ. Show all posts

Thursday, October 22, 2020

Opioids, coronavirus add up to dangerous interaction

pxfuel.com
Purdue Pharma will plead guilty to criminal charges in the marketing of OxyContin, the Justice Department (DOJ) announced yesterday.  Meanwhile, addiction and coronavirus are dangerously interrelated, Dr. Joseph Grillo warns.

DOJ settled with Purdue Pharma in civil and criminal investigations, and with Sackler family shareholders in civil investigation.  Purdue will admit that it conspired to defraud the United States by misleading and impeding enforcement by the Drug Enforcement Administration for almost 10 years.  Purdue also will admit to conspiring to violate the Federal Anti-Kickback Statute with inducements to doctors to prescribe opioids for almost eight years.  (Purdue Plea.)

On the civil side, Purdue will settle, without admission, allegations of false claims to federal healthcare programs, of improper inducements to prescribing doctors, and of improper contracts with fulfilling pharmacies.  The government will have an unsecured claim on $2.8bn in Purdue's bankruptcy.  (Purdue Settlement Agreement.)  Purdue shareholders in the Sackler family will pay $225m in settlement of allegations that they approved an intensified opioid marketing program.  (Sackler Settlement Agreement.)

The settlements do not resolve state claims.

Opioids have taken more than 450,000 American lives since 1999, The New York Times reported yesterday, citing CDC research.  COVID-19 deaths now exceed 220,000, according to the CDC.

In 2020, the coronavirus pandemic nudged the opioid epidemic out of the number one spot for enemy of public health.  But the two are hardly mutually exclusive.  Addiction, of all types, interacts with the threat of coronavirus in a mutually exacerbating feedback loop.  Joseph Grillo, M.D., J.D., and an alum of my torts class, raised a warning flag on his blog yesterday.

"Two great epidemics of our generation are intersecting in ways that are additively deadly, and which highlight the urgent ways we must respond to some of the underlying fault lines in our society that are worsening both crises," Dr. Grillo wrote.

Read more about substance use disorders (SUD) and coronavirus at A Pandemic Within a Pandemic, Joseph Grillo, M.D. Medical Legal Consulting, Oct. 21, 2020.

Saturday, September 12, 2020

Defamation case against Trump fits woeful pattern, while DOJ defense is defensible, if disconcerting

Notice of Removal in Carroll v. Trump
The recent news (e.g., N.Y. Times) that the Department of Justice (DOJ) will defend the President in the defamation suit arising from sexual-assault allegations by E. Jean Carroll has caught the interest of both my Torts I class and my Trump Litigation Seminar (TLS).  The DOJ's announcement manifests on the docket in removal of the case from the New York Supreme Court to the U.S. District Court for the Southern District of New York.  Links and key court documents are now posted atop The Savory Tort's TLS blogsite.

The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape.  It might have been Bill Cosby who committed the pattern to popular culture's long-term memory.  The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.

It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism.  Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech.  The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.

Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights.  Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction.  Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s.  I hope one day, we'll wade our way out of that morass.

Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump.  The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations.  We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office.  Thus, the DOJ reasons, it must represent the position of the President.  The bitter pill for Trump opponents to swallow is that that's probably right.

The kicker comes in that Trump's denial is only presidential if he's telling the truth.  If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected.  His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit.  You know, one in which we might debate what the meaning of is is.  So the rationale for defense by DOJ is predicated on the very question at issue in the litigation.  For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice.  If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.

Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.

[UPDATE Oct. 27, 2020.]  The court denied the government's motion to substitute party on Oct. 27, 2020.  See Special Coverage at the Trump Litigation Seminar.