Judge Tjoflat Holds An Iqbal Party!

 
It's Friday afternoon, so of course that's the perfect time for the 11th Circuit to drop a major pharmaceutical drug ruling.

Read it and -- depending on your perspective -- weep or woot.

The Judge does adopt a fairly novel policy argument rooted in how insurers supposedly price their premiums, effectively killing any kind of recovery for the insurers.

Not sure where he is coming up with some of this fact-finding in the context of a motion to dismiss:

The insurers have pled no facts in the complaint that suggest the insurers established premiums in a way inconsistent with the insurance industry’s conventional ratemaking procedures. We therefore must infer that the insurers do charge premiums established in that conventional manner. As a consequence, because the insurers consciously chose to assume the risk of paying for all medically unnecessary or inappropriate prescriptions of formulary-listed drugs—like Seroquel—we must further infer that they adjusted their premiums upward to reflect the projected value of claims for these prescriptions. Such estimates, when calculated properly, take into account all known risks that might cause the insurers to pay for medically unnecessary or inappropriate prescriptions.

Ah yes, all businesses and their chief executives always act rationally and utilize the very best business practices, I think that's the big takeaway from the last few years.

Me, I'm hitting the surf -- have a great weekend!

11th Circuit Thinks Bill Amlong Should Have Used X-Ray Glasses!

The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.

Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?

Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:

The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses  who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.

When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!

Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony?  Also, that the plaintiff speaks Creole and the deposition required an interpreter?  Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed?  Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?

I admit this case presents a close call, on difficult facts.  But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.

And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing  § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.

Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.

In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:

The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.

Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.

See kids?

Bad facts make bad law.

Judge Tjoflat: "I Was Wron......"

There's a surprising lack of internet information regarding Fonzie from Happy Days' inability to say "I was wrong."

Here's the best link I could come up with, which isn't much.

But if you watch the above clip starting around 1:45, you'll remember what I mean.

Anyways, Judge Tjoflat overcame his inner Fonzie and admitted he just was flat-out wrong about CAFA jurisdiction, reversing himself in a widely-criticized opinion that was the subject of much tsurris in the district courts:

There is no requirement in a class action brought originally or on removal under CAFA that any individual plaintiff’s claim exceed $75,000.

 There, was that so hard?


"These days are yours and mine, Happy Days!"