ConsultantsExpert WitnessLitigation

The Super Bowl Arrives as We Await the SCOTUS Decision on Sports Gambling in Christie v. NCAA

Super Bowl Sunday is upon us! In just five days, we’ll be sitting down with friends and family to watch the Eagles and Patriots duke it out to determine NFL supremacy in 2018. I’ll be filling up on smoked brisket, barbecue beans, and a variety of other chips and dips (likely including mass quantities of guacamole). Sunday is also a time of unrepentant gambling. A day of vice if you will. It’s great fun!

This year is no different from years past, except we in the legal community are expecting a ruling from the Supreme Court on the Christie v. NCAA, a case that could open the flood gates for legalized sports betting throughout the United States.

Let’s be honest, many citizens are already participating in sports gambling. Whether it be the office pool, fantasy football, prop bets during the game, or bets with your local bookmaker (not recommended), gambling is a massive part of this annual event.

The Las Vegas hotels and casinos are busy with enormous bets. A story from Boston.com last week highlighted some six and seven-figure bets being placed at the South Point sports book and The Mirage Hotel & Casino. One person placed a bet for $2 million, which is just a tad more than I’m willing to bet this year. Bookies expect total legal betting on the Super Bowl to break last years’ record $138.5 million.

So let’s take a look at how all of this began approximately 7 years ago.

PASPA and Christie v. NCAA:

Gambling is big business and other states want in – New Jersey included! In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibited state-sanctioned sports gambling with a few exceptions. According to this post from The Legal Intelligencer, “The act includes exceptions for state-sponsored gambling in Nevada and sports lotteries in Delaware and Oregon.” The act was enacted with the support of all four professional sports associations and the NCAA. The intent of the law was to preserve the integrity of athletic events.

Starting in 2011, then New Jersey Governor Chris Christie’s administration took measures to challenge PASPA, leading to a multi-year court battle to have PASPA declared unconstitutional for violating the anti-commandeering doctrine of the 10th Amendment.  It should be noted that New Jersey has lost the case(s) every step of the way (trial and appeals), yet the Supreme Court granted certiorari and heard oral arguments in December of last year.

As laid out by The Legal Intelligencer, “New Jersey argues that, by requiring it to enact state laws to prohibit sports betting, PASPA is commandeering the state’s law enforcement system. The state claims that PASPA violates its sovereignty.”

SCOTUS Ruling Expected by June 2018:

As oral arguments have already been heard, we can expect the decision to be released no later than June of this year. What will happen? I’m no professional SCOTUS commentator, so I dare not hazard a guess at the potential outcome. However, Professor I. Nelson Rose of the Gambling and the Law Blog, predicts “a fairly large majority of the Supreme Court will rule that states cannot be told that they have to continue to make a product or service illegal.” Professor Rose is a law professor at Whittier and has served as an expert witness in civil and criminal trials on the topic of legalized gambling.

If Professor Nelson is correct, next years’ Super Bowl could be a whirlwind of new state-sanctioned sports gambling. Will this also open the doors for eSports and fantasy gambling sites like FanDuel and DraftKings? I guess we’ll have to wait to see how the Supreme Court rules.

How will you be spending Super Bowl Sunday?

Expert WitnessLitigationPharmaceuticalUncategorized

Kentucky AG files lawsuit against opioid distributor McKesson

As I mentioned in our blog post on November 6, 2017, we would be covering the US “opioid crisis” as the lawsuits against manufacturers and distributors heated up. Today, we found out Kentucky Attorney General, Andy Beshear, filed a complaint against McKesson Corp. According to this story by Reuters, Mr. Beshear “accused drug distributor McKesson Corp of helping fuel the opioid epidemic by failing to halt shipments of suspiciously large or frequent orders by pharmacies of prescription painkillers.”

Mr. Beshear’s office filed suit in Kentucky state court. The complaint further alleges McKesson filled suspicious orders and shipped tremendous quantities of prescription opioid pharmaceuticals to Kentucky pharmacies, without reporting them to authorities or preventing the shipments. According to the AG’s own press release, “Federal and state law requires pharmaceutical distributors to monitor and report to law enforcement when it ships large or suspicious supplies of opioids to a state or region.

There’s a wide array of state and local governments pursuing lawsuits against pharmaceutical companies, including McKesson, for deceptive marketing and failures to report suspicious activity which are resulting in opioid addiction and deaths within their cities and towns.

Let’s take a look at causes of action and potential experts:

Based on the complaint, we see that the Kentucky AG is attacking McKesson on some interesting causes of action, including: Consumer Protection Act Violation; Public Nuisance; Negligence per se; Negligence; Unjust Enrichment; Fraud by Omission; and Medicaid Fraud. Mr. Beshear is seeking punitive damages for the State of Kentucky. The complaint further provides the Kentucky Consumer Protection Act protects citizens from “predatory or inappropriate acts by sellers of goods.” The Act states “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

With this information it appears deceptive marketing practices will be an issue in this lawsuit. Both Kentucky and McKesson are likely to employ marketing expert witnesses to address which practices may or may not be false and misleading.

Within this cause of action, Mr. Beshear further alleges violations of the Kentucky Controlled Substances Act. This Act creates a “broad duty on the part of wholesalers to monitor, detect, investigate, refuse to fill, and report suspicious orders of prescription opioids.”

One can only imagine there will be an argument over what constitutes a “suspicious order of prescription opioids.” As such, we expect both parties will be retaining pharmaceutical and pharmacy industry experts. The parties are likely to argue about the existence of indicators used to alert a distributor when a suspect order is placed. I anticipate the parties will be looking to pharmaceutical supply chain or logistics expert witnesses to provide background about notification and indicator systems for identifying suspicious orders.

What relief is the Kentucky AG seeking?

By reviewing the complaint and articles mentioned above, Kentucky is arguing McKesson’s activity has resulted in overdoses which put a drain on emergency services and hospitals. I’m certain Mr. Beshear will argue the costs of medical services have increased significantly as the state has had to deal with opioid overdose.

I further envision an argument will be made about the increase in law enforcement and first responder costs associated with fighting the illegal sales of heroin and other opiates stemming from addiction.

The complaint makes it pretty clear Mr. Beshear is seeking punitive damages on behalf of Kentucky. That being said, both parties are going to employ damages experts. This may involve the use of economists and forensic accountants to determine the amount of financial damage inflicted on Kentucky by McKesson’s actions.

Final Thoughts:

As I’m sitting here in California, I do not understand the true ramifications of the opioid crisis on the State of Kentucky. I am interested to see what individual civil litigation options may be available to the citizens of Kentucky. As such, I invite my friend Daryl Dixon of Daryl T. Dixon Law, in Paducah, Kentucky, to provide us with his thoughts on this subject on his own blog! Ball is in your court, Daryl. Let’s see what the Wildcats have for me…

UPDATED 02/07/2018:

Here is the response from Daryl T. Dixon – Examining the Opioid Crisis: What are my options?

 

Uncategorized

Casino shuttle boat fire resulting in evacuation and one death

A casino shuttle boat caught fire Sunday in Florida, forcing the evacuation of dozens of passengers into the cold Gulf Coast waters. Officials initially stated that none of the evacuation injuries were life threatening. One passenger went home after the evacuation into frigid waters, where she later became ill. She arrived at the emergency room Sunday night about 10pm and died shortly thereafter. Cause of death has not been determined at the time of this writing.

The ferry was only about 100 yards from shore when the captain noticed smoke coming from the engine room. He turned the boat around and told the passengers and crew to abandon ship. About 15 passengers suffered injuries from smoke inhalation and the cold water.

According to this article, The Tropical Breeze Casino said they had never had an issue with the shuttle and have not yet determined the cause of the blaze. The boat is used to ferry passengers to and from the Tropical Breeze offshore casino. The casino is approximately 45 minutes offshore, in international waters.

This maritime accident could require investigation and inspection from a variety of experts in the lead up to probable litigation. Here are the types of experts I expect to be involved in the weeks and months ahead.

Fire Investigation:

The captain noticed smoke very early after leaving port and was able to turn the boat around and have the passengers evacuate while they were still in shallow waters. In this article from Yahoo News, “Coast Guard Petty Officer 1st Class Michael De Nyse said investigators will determine the cause of the fire and examine the history of the boat and Tropical Breeze Casino.” This is what will probably be the initial fire investigation.

From the article it also sounds as though the Pasco County Sheriff will be conducting their own accident/fire investigation. Further cause and origin investigations can be expected from the insurance company for the Tropical Breeze Casino.

With 15 passengers injured and one deceased, I am assuming at least some of the injured parties will be filing a lawsuit. The lawyers for the injured parties will probably request their own inspection of the ferry, which was evidently burned down to the hull. In fact, plaintiff’s counsel will likely want additional experts, beyond fire investigators, to inspect the remainder of the vessel.

Forensic Engineers:

This post on Polymersolutions.com defines forensic engineering as follows, “…using reverse engineering to figure out why a structure, material or component failed to perform as intended. Then, those findings can be used as evidence in court if that failure caused injury, property damage, or was related to some other criminal case.”

From the information currently available, the fire originated in the engine room. If the engine itself caught fire, an engineer specializing in engine mechanics or naval engineering could be used to determine what caused the engine to fail and erupt in flames.

Such an engineer would inspect the components of the engine to determine which item may have failed. It is important to note, once the failed item is discovered, it may expand liability to the manufacturer of the failed component.

Maritime & Admiralty Safety Experts:

The news tells us the captain of the ferry noticed smoke coming from the engine room, so he turned the boat around and ordered the passengers to evacuate.

I expect a great deal of the investigation and approach to establishing liability will hinge on whether the captain followed the appropriate safety protocols for marine passenger safety.

Industries are governed by safety regulations and maritime is no different. A maritime expert will be asked to evaluate the actions of the captain, and other crew, to determine if they acted appropriately under the circumstances.

Did the captain or crew properly inspect the boat before leaving port? Did he order an evacuation too late? Could the captain have done something, before leaving port, that would have prevented the catastrophe? Was the evacuation properly executed? Did the captain follow maritime safety standards in abandoning ship and making sure passengers made it to shore?

Maritime Medicine / Emergency Medicine Experts:

A passenger presented to the emergency room and died a short while later. With this information, I expect both plaintiff and defense counsel to retain medical experts. Since the passenger was only treated at the ER before expiring, both sides will retain emergency medicine experts to review her ER records and possibly opine about whether or not she could have been saved had she presented to the ER sooner.

There is one type of expert both sides may not immediately consider: a maritime medicine expert witness. Although the boat was only 100 yards offshore and the passengers were in waist deep water, this was a maritime accident resulting in death.

It is quite possible that boating accidents taking take place in cold ocean waters require a specific medical response. Was the appropriate medical response utilized? Was there something that could have been done to prevent the death after rescue? Should the passenger have been released home or monitored for 24 hours? What appropriate actions should have been taken after an ocean-based rescue? These are questions for an expert with a long history of maritime lifesaving experience.

Other experts may be involved in litigation stemming from this accident, but these are the most likely types of experts I see being retained in this matter.

Expert WitnessPsychologyUncategorized

NFL investigating Panthers for possible breach of concussion protocol

According to this article on Yahoo, the NFL and the NFL Players Association have opened an investigation into whether the Carolina Panthers violated the concussion protocol for quarterback Cam Newton on Sunday.

This armchair pundit can tell you in watching the replay, Mr. Newton took a pretty solid hit to the head. Thereafter, in walking towards the sideline he fell to his knees. According to Yahoo, Cam Newton only missed one play. You may have wondered, as I did, what is the NFL’s concussion protocol. For that I turned to SBNation.com where they lay out the protocol as follows:

  1. When a potential concussion is identified the player shall be removed immediately from the field.
  2. The NFL team physician and the unaffiliated neurotrauma consultant (UNC) will:
    • Review the video of the play
    • Perform a focused neurological examination
  3. Madden Rule: If there is suspicion of a concussion, the player will be escorted to the locker room for a full assessment
  4. If the player is diagnosed with a concussion, there is NO same-day return to play
  5. If the player passes the exam, he will be monitored for systems throughout the game.

As we witnessed on Sunday, Cam Newton was only ushered to the blue medical tent and then back to the bench. We have to assume the team physician and the unaffiliated neurotrauma consultant did their due diligence to protect him from further harm. Mr. Newton claimed after the game there was a problem with his eye rather than a head injury. I’m of the mind that the human eye is a part of the head and further examination may be necessary. Then again, I am only playing a doctor in this piece.

Why am I concerned about this protocol and the possible failure to adhere to it? In the last 8 years I have seen the reports and talked to the expert witnesses who testify about traumatic brain injury and chronic traumatic encephalopathy (CTE). The real doctors take it very seriously. The damage from CTE is immense and life altering.

I can tell you from my personal experience, the number of doctors specializing in TBI and CTE has at least doubled (probably tripled) in my time at Experts.com. They come in a wide range of medical specialties:

My concern is the medical professionals do what is right for Cam Newton, even if he is only interested in getting back to the game.

With all this said, I want to invite a couple of my friends, both lawyers and former college football players, to respond on this topic in their own time and on their own blogs.

So, to Bernard Nomberg of Nomberg Law Firm and Morris Lilienthal of Martinson & Beason, what say you? Did the Panthers fail to follow protocol? Does the protocol need to change?

UPDATE: January 12, 2018

We asked for input from the lawyers mentioned above. We have received both of their responses in blog posts!

From Morris Lilienthal – Protecting Players: Following Concussion Protocol is a Must.

From Bernard Nomberg – Big Hit on Cam Newton Calls into Question NFL Concussion Protocol.

 

LawyersLitigationSocial Media

LegalTech and Access to Justice: Panel at The ABA GPSolo/GLSA Spring Meeting

As 2017 comes to an end, I am looking at what we accomplished this year and what is on our “to do a list” for 2018. There is one item I’m very excited about. I’ll be moderating a panel at the ABA-GPSolo/GLSA 2018 Joint Spring Meeting (April 25-28, 2018) in New Orleans. This is the GLSA’s (Group Legal Services Association) annual educational conference.

Legal Technology:

The panel is covering the topics of legal technology (legaltech) and access to justice. Many may wonder why I’m excited about this. If you are not in the legal or legaltech business, I understand the topic may seem dry. I’ve been working in legaltech for nearly 8 years at Experts.com and one of my hobbies includes vlogging about legal technology. I am deeply passionate about the impact of technology on the practice of law and delivery of legal services. In essence, I get to host a panel on a topic that fascinates me.

There are a lot of exciting advancements taking place in legaltech. You may have heard about topics such as artificial intelligence, blockchain, and chatbots. These subjects have been dominating legal news for the last couple of years. The innovations are very cool, at least to an admitted nerd like myself. However, our panel will not be taking a deep dive into these legaltech topics. A friend and colleague, Tom Martin of LawDroid will be at the conference and he’ll be discussing running his practice virtually while vacationing in Europe. I highly recommend chatting with Tom about chatbots and how they can help to run a lean, efficient practice as well as improve access to justice.

Access to Justice:

As much as I’d like to have a more involved discussion about the cutting edge technologies impacting the practice of law, there are less sophisticated, readily accessible technologies that can be employed by lawyers and law firms to improve access to justice. In fact, many of these technologies are already employed by legal practitioners. I’ll be hosting the panel with four actively practicing lawyers, with varying levels of technical aptitude, who are actively improving consumer access to justice.

To learn more about the magnitude of the access to justice problem, I encourage you to visit the US Department of Justice, Office for Access to Justice and this page from the United Nations and the Rule of Law.

Here is a brief breakdown of the items identified by our panel for discussion to improve access to justice within the United States:

  • Cost of legal services
  • Consumer awareness of pro-bono services
  • Time restraints for lawyers
  • Technologies used to improve access to justice

As mentioned above, you and your firm already have access to many of the technologies we’ll be discussing. It is just a matter of how the technology is used to improve consumer access to legal services.

Here are a few of the technologies we will cover:

  • Open source and cloud-based services
  • Mobile technology
  • Social media
  • Prepaid legal services

If you are a solo-practitioner looking to improve client access to justice, what would you want to learn about in this presentation?

To my friends and colleagues in the legaltech space, what other legacy technologies should be covered?

EngineeringExpert WitnessInsuranceUncategorized

California Wildfires: Personal Analysis of Expert Information

Approximately two months after the horrific fires in Northern California (Santa Rosa, Napa, etc.,) we are witnessing catastrophic wildfires tearing through the Southern California landscape. Unlike the fires in October, I have not noticed any smoke or ash in the air this week. However, I am keeping a close eye on the fire activity in the Los Angeles area and have maintained communication with friends who are being impacted by the devastation.

Watching the news and reading the articles on this matter led me to read some articles, by fire experts, on our website. I wanted to pull together some information that might prove useful for those suffering immense loss and even displacement. Here is what I learned from Experts.com members:

Collect the Evidence – Document, Document, Document:

Once the fires are extinguished, you are going to be dealing with your insurance company. Your home, office, vehicles, and other property do not need to be engulfed in flames to suffer damage. Being in the region of a fire can cause costly soot damage to both real and personal property.

For example, let’s assume your home suffered some soot damage as a result of wildfires in your region. When your insurance adjuster comes to review the damage to your property, they are going to want to know if it was a common source of residential soot or the result of regional wildfires. Here are some common causes of residential soot as described in an article by Member EFI Global.

  • Smoking
  • Candles
  • Fire Places
  • Cooking
  • Heater malfunctions
  • Wildfires nearby
  • Interior fires (cooking, appliance etc.)

The article goes on to state, “localized soot over stoves, fire places, heater vents, and used candles is explainable to those sources and is generally not a covered loss.” This is why I believe it is important to document!

If you are noticing soot damage to your home as a result of the wildfires, you should begin taking your own photos and video to properly document areas of damage you have found since the fires began. You do not want your insurance adjuster to arrive, do their own investigation, note the areas above, and claim these are the result of the soot damage in your home. Make sure you have your own documentation of these areas and other areas damaged by soot.

The documentation should take place inside and outside the home. I have seen several pictures of fire retardant found on neighborhood streets, vehicles, and homes. If the fire retardant hit your property, make sure to document the exterior of the home for fire, smoke, and other damage related to extinguishing the fire.

If you can locate pictures from before the fire. Do it! Get some before and after photos assembled to help present the damage you see to your home.

Review Policy & Contact Insurance Provider:

Granted, most articles online will probably tell you to do this first. I am assuming you’re doing this at about the same time you are collecting your own evidence to provide to the adjuster.

Upon reporting the damage to your insurance company, you should inquire as to who may be able to assist with fire restoration in your region. Remember, if flames actually reached your home and water was used to extinguish the flames, you have to be cognizant of the potential for mold. This is why you want to find someone competent with fire restoration protocols. Your insurance should be able to guide you to finding the right provider.

Separate the Good from the Bad:

It is possible portions of your home remain undamaged. If this is the case, you’ll want to separate items that are damaged from those that are undamaged.

By separating the items you prevent further harm to the undamaged portions of your home. The separate section of damaged property will actually serve as your inventory for your insurance provider. It will help you to establish what was lost and what should be covered.

Take Care of Each Other:

Do not forget, fires are life altering events. We have experienced some catastrophic wildfires in California this year. The losses are felt throughout many neighborhoods. In preparing for this post, I found this article from the Napa Valley Register. It shares the story of a man who has lost a house in Santa Rosa, only to find out that his original home (turned rental) was destroyed in the Ventura fire this week.

If you can, reach out and help your neighbor. Help someone in your community. If you are insulated from the wildfires, maybe just write a blog post providing some information for those you know who have been impacted by the devastation.

Computer ForensicsComputer SecurityComputersConsultantsExpert Witness

Google Antitrust Investigations: FTC, EU, state attorneys general… More to come?

The ABA Journal reported this week that Google was subpoenaed by the Missouri attorney general (Josh Hawley) for antitrust and consumer protection violations. Google has been placed on notice and the investigation is ongoing. Earlier this year, the Mississippi attorney general sued Google for similar violations and the European Union fined the company $2.7 billion for consumer protection violations. Are you seeing a pattern? Antitrust litigation against Google seems to be full speed ahead.

According to the article, the Federal Trade Commission (FTC) completed an investigation against Google in 2013. The FTC concluded, “We have not found sufficient evidence that Google manipulates its search algorithms to unfairly disadvantage vertical websites that compete with Google-owned vertical properties.” Evidently, Mr. Hawley does not agree with the FTC finding so he decided to investigate on his own.

When investigating and prosecuting cases involving sophisticated technology and antitrust issues, attorneys depend on experts to perform complex investigations and unravel complex issues. Who will the attorneys general and defense counsel turn to in support of these involved matters? Let’s take a look at the issues:

Antitrust / Consumer Protection:

To understand more about the laws governing antitrust issues in the US please visit the FTC for a brief summary.

Essentially, United States antitrust law is a collection of federal and state laws regulating the conduct and organization of businesses, generally to promote fair competition for the benefit of consumers.  As the FTC page indicates, there are three main laws covering antitrust behavior: the Sherman Act 1890, the Clayton Act 1914 and the Federal Trade Commission Act 1914. For more than 100 years, “The antitrust laws have had the same basic objective: to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.” The laws also basically prevent collusion or cartel-like practices and monopolies.

The Missouri attorney general has said, “There is strong reason to believe that Google has not been acting with the best interest of Missourians in mind.” It appears the Mr. Hawley believes Google is doing things which are not promoting, and possibly impeding, fair competition. Further, their algorithms may be directing users to Google-owned properties rather than websites offering services which compete with those Google-owned properties. As Google is the 800 pound gorilla when it comes to Internet searching, any tactics directing users to their own goods or services could be considered a restraint of trade.

In order to prove Google manipulates algorithms for their own benefit, the Missouri attorney general is probably going to have to employ some expert consultants who may later testify as expert witnesses. Google’s defense counsel will probably have to do the same. I assume Google will have many of the pre-litigation consultants in-house.

During the investigation, Mr. Hawley will likely need to consult with antitrust and antitrust economics experts to determine if actions by Google are negatively impacting consumers or restraining trade. Furthermore, he may need to employ consultants to conduct market research to have statistical evidence of the impact on consumers.

Algorithms:

Most of us (is this too presumptive?) have some sort of rough idea about search algorithms and what they accomplish. We understand it to be a mathematical equation used to search data and deliver a result based on the search terms we utilized.

After reading my last paragraph, I have to say there are probably far more accurate and simplistic descriptions of an algorithm. I may not have properly described how they work. That’s because I’m not a computer scientist. Luckily, neither the prosecution nor defense will be calling Nick Rishwain as an expert witness in Missouri v. Google.

The legal representatives from both sides are going to need assistance in understanding search algorithms and how algorithms might be manipulated by Google. They are going to need to know this quite early in the case in order to request and deliver the proper documentation during the investigation and discovery stages should Missouri file a lawsuit.

Both sides will likely need the assistance of information and Internet technology consultants. More specifically, I can see the need for information science & architecture experts as well as search engine optimization experts.

As the ABA Journal article made abundantly clear: Google has faced many legal actions related to antitrust and it appears even more legal actions lie ahead. It should be noted that Google is not alone in this area. There appears to be increased chatter about antitrust actions against Amazon as well. If the US Department of Justice and the Federal Trade Commission avoid taking action, we may see more attorneys general choosing to investigate and possibly prosecute the corporate giants for dominating the market.

For more information, check out the Experts.com Antitrust Articles section.