Sunday, June 25, 2017

Daubert In Product Liability Cases: Mid-2017 Update

I’ve written about the Supreme Court’s Daubert opinion many times before, tagging it with the label “junk science.” The phrase “junk science” never actually appeared in Daubert, but rooting it out has been the animating concern behind the application of Daubert. See, e.g., Amorgianos v. National RR Passenger Corp., 303 F. 3d 256, 267 (2nd Cir., 2002)(“The flexible Daubert inquiry gives the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact.”)
In federal courts today, Daubert has become a magical incantation for defense lawyers in product liability lawsuits. Drug companies gleefully get drugs approved by the FDA with the thinnest of scientific evidence—often relying on “surrogate markers” or underpowered clinical trials—and then claim that plaintiffs injured by their drugs cannot present their case to a jury until they have produced vastly more scientific evidence than the company or the FDA would use. Car manufacturers regularly demand plaintiffs conduct testing that the companies themselves never did.
Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.
All of these cases have one thing in common: the defendants framed Daubert as a matter of pseudoscientific absolutes, and the Courts of Appeals rejected the defendants at every turn. In the cases that follow, defendants argued that any difference between a test and an accident renders the test unreliable, that plaintiffs cannot go to a jury without statistically significant evidence, that opinions developed in litigation are inherently unreliable, that a doctor’s differential diagnosis is an unacceptable scientific methodology, that plaintiffs’ experts must completely eliminate all potential alternative causes, and that case studies are scientifically irrelevant—and the appellate courts rejected each and every one of those arguments.
Like the Supreme Court intended, Daubert is “flexible” because science itself is flexible. Daubert is a means by which courts ensure that juries aren’t subjected to unsupported speculation; it’s not a grocery list of arbitrary requirements.

Adams v. Toyota (Eighth Circuit)

Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017) is a product liability case, one of many unintended acceleration cases brought against Toyota. The plaintiff’s expert testified that, at high temperatures, the throttle pulleys would fuse together, and that this thermal-induced sticking defect had caused the accident. Toyota raised two Daubert challenges, arguing that the expert rendered his own test invalid by repositioning the cruise control arm and that the expert’s analysis was insufficient to conclude that same defect had caused the accident.
The Eighth Circuit rejected both arguments, reiterating that “the inquiry envisioned by Rule 702 is … a flexible one,” and that these issues could all be addressed with “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Id. at *5 quoting Daubert at 549 and 596. Put simply, the expert explained what he did:

Though the parties dispute the significance of Stilson’s repositioning the cruise control arm during his thermal testing, Stilson thoroughly explained how he modified the cruise control system and why he did so. He testified that, in his opinion as an engineer, the modification did not affect the validity of the thermal testing because the cruise control system operated independently of the throttle mechanism that was the subject of his testing. He explained that his testing supported the conclusion that the throttle pulleys fused together when subjected to high temperatures.

Id. at *5. At first blush this seems rather obvious—of course the expert should explain what they did—but an expert’s failure to explain their work is often at the root of a Daubert exclusion, whereas an expert’s explanation is often the key in avoiding exclusion of an expert.
In light of that explanation, the Eighth Circuit had no trouble affirming the District Court, with the usual reminders that the Daubert “gatekeeper” function is about excluding junk science, and isn’t about demanding scientific certainty from experts:

“[T]he district court must … function as a gatekeeper who ‘separates expert opinion evidence based on good grounds from subjective speculation that masquerades as scientific knowledge.’ ” Presley, 553 F.3d at 643 (quoting Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001)). However, Stilson’s opinion as to causation need not be a “scientific absolute in order to be admissible.” Bonner v. ISP Tech., Inc., 259 F.3d 924, 929 (8th Cir. 2001). We conclude that Stilson’s opinions represented more than “vague theorizing based on general principles,” Pro Serv. Auto., LLC v. Lenan Corp., 469 F.3d 1210, 1216 (8th Cir. 2006), or “unsupported speculation,” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. The district court did not abuse its broad discretion in allowing Stilson’s expert opinion pursuant to Rule 702.

Id. (emphasis added).
The Adams case was also notable for its discussion of “other similar incidents” evidence. The defendants argued that “proponents must show that the other-incidents were caused by the same or similar defect,” essentially forcing plaintiffs into holding a mini-trial over each incident, something that is often not impossible. The Eighth Circuit rejected that rule, reiterating again “[t]here are no hard or fast rules as to what degree of similarity there must be to make the evidence admissible.” Id. at *3 (quoting Henwood v. Chaney, 156 F.2d 392, 397 (8th Cir. 1946).

In re Zoloft (Third Circuit)

In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig.,, No. 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017) involved the Zoloft birth defects MDL, in which the trial court excluded the plaintiffs’ epidemiological expert from testifying. I wrote about the District Court’s opinion back when it came out in March 2016, criticizing the District Court’s reliance on “statistical significance” when deciding Daubert. As I noted then, the American Statistical Association agrees that “statistical significance” is more a term of art than an actual scientific principle. The bedrock principles of “p ≤ 0.05” and “95% confidence interval” are hardly “scientific.” Instead, they were pulled out of thin air decades ago by a eugenicist. (More about that in this post.)
 Here’s the good news: the Third Circuit refused to establish a “bright-line rule” requiring “statistical significance.” As the Court wrote,

Central to this case is the question of whether statistical significance is necessary to prove causality. We decline to state a bright-line rule. Instead, we reiterate that plaintiffs ultimately must prove a causal connection between Zoloft and birth defects. A causal connection may exist despite the lack of significant findings, due to issues such as random misclassification or insufficient power. Conversely, a causal connection may not exist despite the presence of significant findings. If a causal connection does not actually exist, significant findings can still occur due to, inter alia, inability to control for a confounding effect or detection bias. A standard based on replication of statistically significant findings obscures the essential issue: a causal connection. Given this, the requisite proof necessary to establish causation will vary greatly case by case. This is not to suggest, however, that statistical significance is irrelevant. Despite the problems with treating statistical significance as a magic criterion, it remains an important metric to distinguish between results supporting a true association and those resulting from mere chance. Discussions of statistical significance should thus not understate or overstate its importance.

Id. at *3 (emphasis added). The Third Circuit took great care to explain, “the course of the proceedings make clear that the replication of significant results was not dispositive in establishing whether the testimony of either Dr. BĂ©rard or Dr. Jewell was reliable. In fact, the District Court expressly rejected Pfizer’s argument that the existence of a statistically significant, replicated result is a threshold issue before an expert can conduct the Bradford–Hill analysis.” Id. at *5.
Also more good news: the Third Circuit specifically recognized that a plaintiff can establish causation with a variety of methodologies, including the “weight of the evidence,” the “Bradford Hill criteria,” or a “differential diagnosis.” Id. at *5. These are all “flexible methodologies … [that] can be implemented in multiple ways.” Id. The critical part for Daubert purposes isn’t whether or not an expert applied a general methodology in a particular way, but whether they applied the methodology they chose consistently. As the Third Circuit described its prior opinion, In re Paoli R.R. Yard PCB Litigation, “[w]hile we did not require the expert to run specific tests or ascertain full information in order for the differential diagnosis to be reliable, we did require him to explain why his conclusion remained reliable in the face of alternate causes.”
The Third Circuit laid down a common sense, clear roadmap for plaintiffs to follow:

In short, despite the fact that both the Bradford Hill and the weight of the evidence analyses are generally reliable, the “techniques” used to implement the analysis must be 1) reliable and 2) reliably applied. In discussing the conclusions produced by such techniques in light of the Bradford Hill criteria, an expert must explain 1) how conclusions are drawn for each Bradford Hill criterion and 2) how the criteria are weighed relative to one another. Here, we accept that the Bradford Hill and weight of the evidence analyses are generally reliable. We also assume that the “techniques” used to implement the analysis (here, meta-analysis, trend analysis, and reanalysis) are themselves reliable.

Id. at *6.
Here’s the bad news: the expert hadn’t followed that roadmap. He “did not 1) reliably apply the ‘techniques’ to the body of evidence or 2) adequately explain how this analysis supports specified Bradford Hill criteria.” Id.

Wendell v. GlaxoSmithKline (Ninth Circuit)

Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017), involved a non-MDL medication product liability claim that two anti-inflammatory drugs (Purinethol and Remicade) that were prescribed to treat inflammatory bowel disease causes Hepatosplenic T-cell lymphoma, a rare and aggressive form of non-Hodgkin’s lymphoma. The district court excluded the plaintiff’s experts on Daubert grounds and granted summary judgment, which the Ninth Circuit reversed.
The district court opinion reads like a wish-list for defense lawyers in drug and medical device cases. The district court:

  • “focused on the fact that the experts developed their opinions specifically for litigation, and had never conducted independent research on the relationship between 6–MP and anti-TNF drugs and the development of HSTCL.”
  • “noted that both doctors conceded that although their opinions were based on a reasonable degree of medical certainty, they ‘would not satisfy the standards required for publication in peer-reviewed medical journals.’”
  • “determined that the lack of animal or epidemiological studies showing a causal link between HSTCL and the combination of 6MP and anti-TNF drugs also undermined the experts’ methodology.”
  • “found that the experts did not show ‘that all of the observed differences in these incidence rates are statistically significant or that they account for plausible alternative causes of HSTCL, such as IBD itself.’ Further, the doctors did not present scientific evidence to support their opinion that IBD is not a risk factor for HSTCL.”

Id. at *4. I’ve seen defense lawyers for drug and medical device companies raise all of these arguments before, all with the implication that Daubert imposes an arbitrary barrier requiring independent research, peer-reviewed publications, epidemiological studies, statistically significant results, and an indisputable refutation of all other alternative causes the defense lawyers dream up.
The Ninth Circuit was having none of it:

The district court looked too narrowly at each individual consideration, without taking into account the broader picture of the experts’ overall methodology. It improperly ignored the experts’ experience, reliance on a variety of literature and studies, and review of Maxx’s medical records and history, as well as the fundamental importance of differential diagnosis by experienced doctors treating troubled patients. The district court also overemphasized the facts that (1) the experts did not develop their opinions based on independent research and (2) the experts did not cite epidemiological studies. We hold that all together, these mistakes warrant reversal.

Id. at *4. The plaintiff’s experts were two “highly qualified doctors” with ample experience in researching and treating non-Hodgkin’s lymphoma, and they applied the same differential diagnosis they regularly do while treating patients. The methodologies applied were simple and straightforward. As for the first expert,

Dr. Shustov based his opinions “on medical records as well as [his] education, training and experience, knowledge of the pertinent medical literature and [his] knowledge of the epidemiology, diagnosis and natural history of HSTCL.” He explained: “I reviewed the literature, I pulled the facts out of the literature.” He found that the literature shows there is an increased risk of HSTCL in patients taking 6–MP over the general population. After reviewing the literature, he “compiled the numbers about frequency of diseases, about frequency of inflammatory bowel disease and [he] looked at the biological causation of lymphoma pertaining to this case.”
Dr. Shustov stated that he performs differential diagnosis in attempting to diagnose every patient, and that he has applied the same technique to determine the cause of a disease. When performing a differential diagnosis, he first assumes the pertinence of all potential causes, then rules out the ones as to which there is no plausible evidence of causation, and then determines the most likely cause among those that cannot be excluded. We have recognized that this method of conducting a differential diagnosis is scientifically sound.

Id. at *5 (emphasis added). As for the second,

Dr. Weisenburger based his opinion on “a summary of the medical records of [Maxx] as well as copies of the pathology reports, and the original slides of the diagnostic bone marrow,” which he evaluated with over 30 years of experience diagnosing non-Hodgkin lymphoma. He stated that he considered that Maxx’s HSTCL might have been idiopathic, and that although he was not entirely able to rule that possibility out, “[w]hen you have a patient with obvious and known risk factors, you tend to assume that those risk factors were the cause.” He did not base that assumption on pure conjecture. As he discussed throughout his deposition testimony and in his expert report, the literature shows that patients exposed to 6–MP and anti-TNF drugs are at an increased risk for HSTCL. Dr. Weisenburger also weighed other risk factors, including Maxx’s sex and age, and determined that those were “weak risk factors; whereas, the disease he had, particularly in the setting of the drugs he received would be considered very strong risk factors.”

Id. at *6 (emphasis added).
Nothing more was needed. “The proposed testimony was sufficiently reliable that the Plaintiffs’ experts should have been allowed to testify under Daubert. The district court improperly required more. The Supreme Court in Daubert aimed at screening out unreliable or bogus expert testimony. Nothing in Daubert, or its progeny, properly understood, suggests that the most experienced and credentialed doctors in a given field should be barred from testifying based on a differential diagnosis.” Id.
As the Ninth Circuit explained at length,

  • there is no requirement for expert opinions being “developed independently of litigation,”
  • the “district court also wrongly conflated the standards for publication in a peer-reviewed journal with the standards for admitting expert testimony in a courtroom,”
  • neither animal nor epidemiological studies are “necessary for an expert’s testimony to be found reliable and admissible,”
  • that case studies are useful in “support[ing] other proof of causation” (citing Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1199 (11th Cir. 2002)),
  • there is no need for a plaintiff to identify the exact “mechanism whereby a particular agent causes a particular effect,” because “[c]ausation can be proved even when we don’t know precisely how the damage occurred, if there is sufficiently compelling proof that the agent must have caused the damage somehow,” (citing Daubert II, 43 F.3d 1311, 1314 (9th Cir. 1995)), and,
  • “We do not require experts to eliminate all other possible causes of a condition for the expert’s testimony to be reliable. It is enough that the proposed cause ‘be a substantial causative factor,’” (quoting Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1199 (9th Cir. 2014).

Defendants are fond of quoting Rosen v. Ciba-Geigy Corp., 78 F. 3d 316 (7th Cir., 1996), “Law lags science; it does not lead it.” This quote was always dubious: the full quote begins with “the courtroom is not the place for scientific guesswork” and ends with “[t]here may be evidence to back up Fozzard’s claim, but none was presented to the district court.” In Wendell, the Ninth Circuit delivered an even more potent retort:

Perhaps in some cases there will be a plethora of peer reviewed evidence that specifically shows causation. However, such literature is not required in each and every case. “The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims’ condition and the toxic substance, has not yet been completed.” Clausen, 339 F.3d at 1060 (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir. 2000)). In the case of a rare disease like HSTCL, the Supreme Court’s mandate that in determining the admissibility of expert testimony, the focus “must be solely on principles and methodology, not on the conclusions that they generate,” is especially important. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

Id. at *7 (emphasis added).

Nease v. Ford (Fourth Circuit)

Finally, there’s Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017), another unintentional acceleration product liability case involving a 2001 Ford Ranger pickup truck and the claim that the speed control cable became stuck, preventing him from slowing down. The plaintiff’s expert opined that the speed control assembly allows contaminants in that cause the throttle to become stuck open.
As the Fourth Circuit said, “[t]esting was of critical importance in this case as Sero conceded that the speed control cable in the Neases’ Ranger was not bound or wedged; the cable ‘moved freely’ when Sero performed a post-accident inspection of the Neases’ Ranger. Id. at 231. In other words, because there really wasn’t anything for the expert to base their opinion on, neither inspection, nor literature, nor industry practice, nor other similar incidents, testing would have been the only way to demonstrate his theory. Unfortunately, “Sero, however, conducted no testing whatsoever to arrive at his opinion.” Similarly, “he offered no data from any other studies or accident records to prove that the older designs were less likely to bind than the one incorporated in the Neases’ 2001 Ranger.” 234. The Fourth Circuit recognized “Daubert is a flexible test and no single factor, even testing, is dispositive,” id. at 232, but found that the expert’s testimony simply couldn’t pass any of Daubert’s “reliability markers.”

Daubert In Product Liability Cases: Mid-2017 Update posted first on

Thursday, June 22, 2017

Trump ignores dangerously low truck insurance limits

Despite FMCSA report to Congress that decades-old financial responsibility levels don’t adequately cover many truck wrecks, regulators cling to status quo

Truck insurance limits

For someone who wears an “I ♥ truckers” button, President Trump isn’t acting like it.

On June 2, 2017, his Administration through the Federal Motor Carrier Safety Administration (FMCSA) made a decision that will … Read More

The post Trump ignores dangerously low truck insurance limits appeared first on Truck Accident Attorney Round Table.

Trump ignores dangerously low truck insurance limits posted first on

Wednesday, June 14, 2017

How to keep distracted driving truck accidents from happening

Tips for avoiding distracted driving truck accidents include no texting, no dispatching devices, no hand-held phones and no eating or drinking while driving

Distracted driving truck accidents

Few – if any – things are more dangerous and potentially deadly than a distracted truck driver barreling along a crowded highway, behind the wheel of a fully loaded 80,000-pound tractor-trailer.

Indeed, … Read More

The post How to keep distracted driving truck accidents from happening appeared first on Truck Accident Attorney Round Table.

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Thursday, June 1, 2017

Free Speech And Trump Tweets: When Twitter Is A Limited Public Forum

While in the White House, Donald Trump’s personal twitter timeline, @realDonaldTrump, remains a key method by which he communicates with the public. He uses it to conduct foreign policy, to urge specific action by Congress, to promote certain media articles, and, of course, to persuade the public on key issues, including with implied references to classified government information. And, critically for our purposes here, he allows the public, the media, and other elected representatives to post tens of thousands of comments in response to each tweet:
As Danny Sullivan pointed out, President Trump has recently become more aggressive in blocking people on Twitter, and so Sullivan has created a list of blocked users. Sullivan wonders if this creates a First Amendment issue, noting,

When Trump blocks, he doesn’t just impact himself. He blocks some Americans from speaking in arguably the most important forum, his tweets.

For our purposes here, I’ll refer to @realDonaldTrump’s tweets as “tweets,” and the responses to them as “replies,” so we don’t get confused. When @realDonaldTrump “blocks” someone on Twitter, they can no longer read his tweets or reply to them. That is in contrast to “muting,” which removes the person’s replies from @realDonaldTrump’s view but leaves them up for other users.
So, are President Trump’s tweets a public forum? If so, does that place limits on when President Trump can block users from replying?
I believe the answers are “yes” and “yes.” Because President Trump uses @realDonaldTrump for official business, and because President Trump allows (arguably, invites) replies on his tweets, he has made his Twitter timeline into a limited public forum. As such, the First Amendment applies. He can potentially impose content restrictions, but he can’t impose viewpoint restrictions.
Here’s why.

For years, legal scholars have wondered about how the First Amendment applies to government-sponsored social media accounts. For example, see this 2011 article on “Government Sponsored Social Media and Public Forum Doctrine Under the First Amendment: Perils and Pitfalls.”
The basic concepts of a “limited public forum” are well-settled in the Supreme Court:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional. These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when the limited public forum is one of its own creation. In a case involving a school district’s provision of school facilities for private uses, we declared that there is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated. The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint. Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828–30, 115 S. Ct. 2510, 2516–17, 132 L. Ed. 2d 700 (1995)(emphasis added, citations and quotations omitted). Rosenberger involved the use of student activities funds at state universities. As the Supreme Court recognized, “The [fund] is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.” Id. at 830.
So, what about the “metaphysical” forum of social media?
For starters, the Supreme Court has been quite clear that online speech is worthy of the same level of protection as other speech. See Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); see also Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). The federal appellate courts, too, have recognized that the use of social media can constitute expressive speech. Below is a passage from the Fourth Circuit; it might seem tiresome to read a lengthy discussion of the “like” button on Facebook, but that detailed analysis is critical to understanding how even minimal use of social media can be the exercise of free speech.

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so, the Campaign Page’s name and a photo of Adams—which an Adams campaign representative had selected as the Page’s icon—were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.
Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410–11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message …, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones, 706 F.3d 379, 388 n. 3 (4th Cir.2013).
In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43, 54–56, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).

Bland v. Roberts, 730 F.3d 368, 385–86 (4th Cir. 2013), as amended (Sept. 23, 2013).
Indeed, the federal court for the Eastern District of Virginia recently considered the exact issue we’re discussing regarding President Trump’s tweets: whether the government can properly “block” a user from commenting on a social media page used by a government officials to facilitate a discussion with the public.
In Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD), 2017 WL 58294 (E.D. Va. Jan. 4, 2017), a resident of Loudoun County, Virginia, filed suit after he was blocked from commenting on a Facebook Page operated by the Chair of the Loudoun County Board of Supervisors. The defendant claimed the Facebook Page was her personal page, not the Board’s official page, but the Court found the distinction was immaterial because of the way her page was used:

The page in question is titled “Chair Phyllis J. Randall, Government Official.” The “About” section of the page reads “Chair of the Loudoun County Board of Supervisors” and includes a link to Defendant Randall’s profile on Loudoun County’s website. It does not include any information of a personal nature. The top of the page features an image of a plaque reading “Phyllis J. Randall Chair–At–Large,” as well as an image of what the Court presumes to be Defendant Randall sitting behind the same plaque in front of a United States flag.

The image appended to Plaintiff’s Complaint includes four posts by Defendant Randall. The two most recent are specifically addressed to “Loudoun,” Plaintiff’s constituency. All pertain to matters of public, rather than personal, significance. Besides one warning of poor weather conditions in Loudoun County, all posts visible in the image involve Defendant’s duties as Chair of the Loudoun County Board of Supervisors. They note recent events in the local government and solicit attendees for local government meetings.

In short, the image of Defendant’s Facebook page substantiates Plaintiff’s claim that Defendant Randall uses the “Chair Phyllis J. Randall, Government Official” Facebook page in connection with her official duties. Drawing “all reasonable inferences” in Plaintiff’s favor, E.I. du Pont de Nemours & Co., 637 F.3d at 440 (4th Cir. 2011), Plaintiff has adequately plead that Defendant Randall’s Facebook page is a “Loudoun County social media site[ ],” governed by the County’s Social Media Comments Policy.

Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD), 2017 WL 58294, at *4 (E.D. Va. Jan. 4, 2017)(citations to the record omitted).
It’s easy to apply this analysis to the @realDonaldTrump account. As noted above, President Trump regularly uses it for official business – indeed, it’s hard to find any personal tweets at all these days. Moreover, his bio says he is “45th President of the United States of America,” and, at the moment, his cover photo is a picture of him sitting at the Resolute desk in the Oval Office while conducting official business. (This isn’t the first time the White House has made this mistake. President Trump’s social media director(!) previously got in hot water for making his personal account appear like an official account and then advocating voters choose a particular candidate.)
Back to Davison, once the Court found the defendant’s Facebook Page was officially sponsored, the next question was whether the First Amendment applied to the defendant blocking the plaintiff from commenting:

The Court is not required to determine whether any use of social media by an elected official creates a limited public forum, although the answer to that question is undoubtedly “no.” Rather, the issue before the Court is whether a specific government policy, applied to a specific government website, can create a “metaphysical” limited public forum for First Amendment purposes. See Rosenberger v. Rector, 515 U.S. at 830, 115 S.Ct. 2510. That answer to that narrower question is undoubtedly “yes.”

“Limited public forums are characterized by ‘purposeful government action’ intended to make the forum ‘generally available’ ” for certain kinds of speech. Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 (4th Cir. 2006) (quoting Goulart v. Meadows, 345 F.3d 239, 250 (4th Cir. 2003)). At the time of the events giving rise to this suit, the County maintained a Policy stating that “the purpose of Loudoun County social media sites is to present matters of public interest in Loudoun County.” Compl. Exh. 11 [Dkt. 1–11]. The Policy provided that visitors were “encourage[d] to submit questions, comments and concerns,” but that “the county reserve[d] the right to delete submissions” that violated enumerated rules, such as comments that include “vulgar language” or “spam.” Id. Such a policy evinces the County’s purposeful choice to open its social media websites to those wishing to post “questions, comments and concerns” within certain limits.

…  A “metaphysical” forum created by a government policy like the County’s social media policy, see Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), is subject to the same First Amendment analysis regardless of whether that policy is applied to online speech. See Liverman, 844 F.3d at 407 (“What matters to the First Amendment analysis is not only the medium of the speech, but the scope and content of the restriction.”).

Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD), 2017 WL 58294, at *5 (E.D. Va. Jan. 4, 2017)(emphases added).
Careful readers may have noticed the Davison opinion hinged on the County’s “social media policy,” which expressly encouraged visitors to “submit questions, comments and concerns,” and limited the circumstances under which comments would be deleted to a few obvious categories, like spam.
At this point I’d say we should look at the White House’s own social media policy… but I can’t find one. There’s a White House Privacy Policy, but it doesn’t specifically reference @realDonaldTrump, and it doesn’t say anything about the deletion of comments. The Privacy Policy does, however, say that the White House might use “comments” collected through social media to advocate policy positions:



That suggests the White House invites the public to comment on social media which, in turn, bolsters the argument that @realDonaldTrump’s account is a limited public forum when it comes to the public replying to his tweets. Similarly, President Trump’s use of @realDonaldTrump suggests that the public is invited to reply to his tweets.
So, what then? “In a limited public forum, restrictions that are viewpoint neutral and reasonable in light of the purpose served by the forum are permissible.” DiLoreto v. Downy Unif. Sch. Dist. Bd. of Ed., 196 F.3d 958, 965 (9th Cir. 1999) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)). Here’s a recent succinct summary of how it works:

First, the government may permissibly restrict content by prohibiting any speech on a given topic or subject matter. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The State may be justified in reserving its forum for certain groups or for the discussion of certain topics. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). The state may properly exclude an entire subject. Choose Life Ill., Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008). Second, however, once the government permits some comment on a particular subject matter or topic, it may not regulate speech in ways that favor some viewpoints or ideas at the expense of others. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Accordingly, while a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum, the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 (1985).

Sprague v. Spokane Valley Fire Dep’t, 196 Wash. App. 21, 54, 381 P.3d 1259, 1275 (2016).
In other words, once @realDonaldTrump allows replies to a tweet, he’s obliged to permit all views encompassed within the subject of that tweet, and he cannot do so in a manner that favors certain viewpoints or ideas at the expense of others. That permits President Trump a fair amount of leeway by the trolling standards of the Internet — if he wanted to get rid of harassing or vulgar replies that had nothing to do with the tweet, he theoretically could — but, when it comes to the subject matter of the tweet, the commentators have a broad free speech rights to address the topic at hand.
So that’s the law. A couple practical thoughts:
First, the White House needs a social media policy. Maybe they have one that I can’t find. Either way, it’d be helpful to everyone if they had a specific description of what they intend to do with comments on social media, and it’d be even better if they followed it.
Second, it is worth noting that @realDonaldTrump receives an immense number of critical comments to each tweet and yet, so far, only a handful of Twitter users have been blocked. That suggests there isn’t a systematic effort to block people, and that it’s instead an ad hoc decision. On the one hand it’s nice to see there’s not a concerted effort to suppress critical viewpoints; on the other hand, an “ad hoc” governmental policy rarely survives any degree of court scrutiny. Moreover, the absence of a concerted effort doesn’t change the free speech analysis for each blocked person.
Third, assuming @realDonaldTrump creates and enforces a social media policy that said, for example, that replies had to be related to the subject matter of his tweet, the technical limitations of Twitter would present a problem. As far as I can tell, Twitter doesn’t have an option for removing particular replies to a tweet. A user can block other users, mute other users, or mute a particular conversation. It would be difficult for @realDonaldTrump to truly enforce a social media policy that actually removed certain replies. As a practical matter, the only way he could remove particular replies is by using Twitter’s own system for reporting tweets that violated Twitter’s Terms of Service, i.e., by being abusive or spammy.
When all is said and done, @realDonaldTrump is likely better off unblocking everyone and just muting whoever is bothering him. If he keeps blocking users, he’ll eventually see himself the defendant in yet another lawsuit.

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Monday, May 22, 2017

Webinar: Truck driver deposition strategy

Truck Attorney Roundtable Co-Founder Steven Gursten leads national legal webinar on company, truck driver depositions and handling 30(b)(6) matters

truck driver depositions

On May 24, I’ll be part of Stafford Publications’ 90-minute “Deposing Truck Drivers and Trucking Company Representatives in Injury Cases” CLE webinar.

The webinar is designed so that lawyers will be able to interact and ask … Read More

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Wednesday, May 10, 2017

I ♥ safe truckers

‘Sad’ how Trump publicly declared his affection for truckers, but his Administration & FMCSA were diligently working to withdraw a key trucking safety proposal

Trump I Heart Truckers

I ♥ safe truckers.

That’s the pin I wish President Trump had worn when truckers, trucking associations and motor carrier lobbyists descended on the White House on March 23, 2017, for … Read More

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Wednesday, April 26, 2017

Goodyear v. Haeger: The Supreme Court Muddles Sanctions Law Again

Earlier this month the Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger et al., a case I wrote about way back in 2012 involving the scope of sanctions (including attorney’s fees) available when a party to a lawsuit brazenly lies about important evidence throughout most of the case.
The case involves a tire defect lawsuit and the extraordinary lengths to which the defendant, Goodyear, went to hide evidence of its culpability.
These are the underlying facts: the Haeger’s motorhome swerved and flipped over when one of the Goodyear G159 tires blew out. Goodyear’s G159 tire was originally designed for regional delivery trucks. In the 1990s, Goodyear started marketing it for Recreational Vehicles, even though the tire wasn’t meant to withstand the weight and heat of an RV traveling at interstate speeds, particularly in the hotter parts of the country. Goodyear’s own testing data showed that the G159 became unusually hot at speeds above 55 miles per hour – but in the Haeger case, Goodyear failed to produce this data. Instead, they repeatedly lied to the plaintiffs, claiming they had produced “all testing data” when, of course, they hadn’t.
After the Haeger case settled on the eve of trial, the Haeger’s lawyer read a newspaper article about another case in which, shockingly, those test results were introduced at trial. The Haegers filed for sanctions. Unfortunately, there aren’t really any clear mechanisms for addressing a violation of the rules after a case has been closed. The District Court held that sanctions under Federal Rule of Civil Procedure 11 should not be imposed after final judgment in a case. See 906 F. Supp. 2d 938, 973, n. 24 (D Ariz. 2012). Similarly, the District Court held that sanctions under 28 U. S. C. §1927 could address the wrongdoing of only Goodyear’s attorneys, rather than of Goodyear itself. See 906 F. Supp. 2d at 973.
The District Court eventually used its “inherent powers” to sanction Goodyear, awarding the Haegers $2.7 million in legal fees and costs, which was the full value of the attorney’s fees incurred in the litigation from the moment when Goodyear made its first dishonest discovery response. The Supreme Court overturned that awarded and remanded it to the trial court to re-evaluate the sanction amount based on the expenses the plaintiffs incurred that were specifically caused by Goodyear’s deception.
Let’s start with the holding, which, unfortunately, is far from clear. The Haeger opinion begins, “We hold that such [a sanction] order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith.”
That rule sounds clear enough, except that the Supreme Court creates a gigantic exception just seven pages later, allowing District Courts to award the full fees for the entire litigation in “exceptional” cases:

In exceptional cases, the but-for standard even permits a trial court to shift all of a party’s fees, from either the start or some midpoint of a suit, in one fell swoop. Cham­bers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did—“his entire course of conduct” throughout, and indeed preceding, the litigation—was “part of a sordid scheme” to defeat a valid claim. 501 U. S., at 51, 57 (brackets omit­ted). Thus, the district court could reasonably conclude that all legal expenses in the suit “were caused . . . solely by [his] fraudulent and brazenly unethical efforts.” Id., at 58.

Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is at­tributable only to sanctioned behavior, the court may again make a blanket award.

And similarly, if a court finds that a lawsuit, absent litigation misconduct, would have settled at a specific time—for example, when a party was legally required to disclose evidence fatal to its posi­tion—then the court may grant all fees incurred from that moment on.

In each of those scenarios, a court escapes the grind of segregating individual expense items (a deposi­tion here, a motion there)—or even categories of such items (again, like expert discovery)—but only because all fees in the litigation, or a phase of it, meet the applicable test: They would not have been incurred except for the misconduct.

(Line breaks added for clarity.)
If a court can, “in one fell swoop,” “escape[] the grind of segregating individual expense items” and “shift all of a party’s fees” whenever it “reasonably conclude[s]” the case should have been resolved or where the “course of conduct” was sufficiently egregious, then there is no meaningful “but for the bad faith” limitation on the amount of attorney’s fees a District Court can award as a sanction.
Regardless, the Haeger case would seem to be exactly the sort of case that would warrant a “blanket award” for the plaintiffs. Obviously, Goodyear felt that the G159 testing data was so damning that it was worth violating court orders and repeatedly lying to the plaintiffs and the court to keep it secret. It’s not just “reasonable” for a court to conclude that Goodyear’s course of conduct infected the whole case or that the case would have settled if Goodyear and its lawyers had complied with the law; it’s the only reasonable explanation for Goodyear’s blatant dishonesty.
Nonetheless, the Supreme Court unanimously came up with multiple ways to excuse Goodyear’s deception and thereby lower the award:

As an initial matter, the Haegers have not shown that this litigation would have settled as soon as Goodyear divulged the heat-test results (thus justifying an all-fees award from the moment it was sup­posed to disclose, see supra, at 8–9). Even the District Court did not go quite that far: In attempting to buttress its comprehensive award, it said only (and after express­ing “some uncertainty”) that the suit probably would have settled “much earlier.” 906 F. Supp. 2d, at 972. And that more limited finding is itself subject to grave doubt, even taking into account the deference owed to the trial court. As Judge Watford reasoned, the test results, although favorable to the Haegers’ version of events, did not deprive Goodyear of colorable defenses. In particular, Goodyear still could have argued, as it had from the beginning, that “the Haegers’ own tire, which had endured more than 40,000 miles of wear and tear, failed because it struck road debris.” 813 F. 3d, at 1256 (dissenting opinion). And indeed, that is pretty much the course Goodyear took in another suit alleging that the G159 caused a motorhome accident. See Schalmo v. Goodyear, No. 51–2006–CA– 2064–WS (Fla. Cir. Ct., 6th Cir., Pasco County). In that case (as Judge Watford again observed), Goodyear pro­duced the very test results at issue here, yet still elected to go to trial. See 813 F. 3d, at 1256. So we do not think the record allows a finding, as would support the $2.7 million award, that disclosure of the heat-test results would have led straightaway to a settlement.

The Supreme Court nit-picks what the Haegers argued and what the District Court found, conveniently skipping over why Goodyear withheld the data.
It’s more than a little ridiculous for the Supreme Court to start making inferences in Goodyear’s favor when the underlying facts of the sanction weren’t even contested. If Goodyear didn’t think the testing data would have changed whether or not it had to settle the case (or whether it would have been liable at trial), then Goodyear would have produced it. If Goodyear thought the case had “colorable defenses,” then Goodyear wouldn’t have lied to a federal judge’s face about the evidence it possessed. A company that sells $15 billion worth of products every year doesn’t decide to break the law because it’s really curious about what the Supreme Court might say about attorney fee-shifting awards; it does so to avoid paying the plaintiff what they are due.
All in all, it’s hard to see how the Haeger opinion really changes much about sanction law, given that the Supreme Court itself reaffirmed, albeit with other words, the essential point of the District Court’s opinion’s that a party can be held responsible for the entirety of the litigation when its violation of the rules is so egregious that it tainted the rest of the case.
Indeed, if anything, the Supreme Court extended the scope of available sanctions by suggesting that its analysis could be applied to other sanctions contexts as well:
Rule-based and statutory sanction regimes similarly require courts to find such a causal connection before shifting fees. For example, the Federal Rules of Civil Procedure provide that a district court may order a party to pay attorney’s fees “caused by” discovery misconduct, Rule 37(b)(2)(C), or “directly resulting from” misrepresentations in pleadings, motions, and other papers, Rule 11(c)(4). And under 28 U. S. C. § 1927, a court may require an attorney who unreasonably multiplies proceedings to pay attorney’s fees incurred “because of” that misconduct.
On the surface, this suggests that sanctions awards under Rule 37, Rule 11, and § 1927 are limited to the attorney’s fees “caused” by the violation, but, by drawing parallels to these Rules and statute and the availability of blanket awards under the inherent power sanctions in “exceptional cases,” the Supreme Court may have just extended the attorney’s fees that are available as a sanction.
Truth is, although the discussion around sanctions often wrongly centers around plaintiffs, corporate America is the biggest abuser of the court system. Ford, for example, has a long history of the same misconduct, including being sanctioned in Sheila Johnson, et al., v. Ford Motor Company, No. 99-C-509 (N.D. Illinois 1999) for concealing testing results and, in Ford Motor Co. v. Conley, 757 S.E.2d 20, (Ga. 2014), having an entire new trial ordered after it was discovered Ford had a “general corporate practice” of giving misleading answers in discovery.
Nor are these violations limited to the world of automotive safety. Here, for example, is a June 2015 order sanctioning Eli Lilly and its lawyers at Covington and Burling for hiding a document until expert depositions, when it revealed the document while deposing one of the plaintiff’s experts. (The underlying motion is available here.) Or, as another example, in Lee v. Wal-Mart Stores, No. 2004-CV-01129E, Wal-Mart was sanctioned for destroyed a videotape that captured the plaintiff being attacked and shot in a Wal-Mart parking lot.
These are but a handful of examples plucked out of my inbox; it is sadly an everyday occurrence for corporate defendants to willfully disregard their obligations to the courts.

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