Big Pharm & The Doctors vs The Tort Lawyers

Eventually, it will happen. There will come a day of reckoning.

Eventually, it’s going to be common knowledge that the powerful pharmaceutical industry, aided by gullible doctors and a host of other well-meaning, but ignorant individuals and entities, have been engaged in the kind of cover-up akin to the one the cigarette manufacturers engaged in for decades. The tobacco industry knew for many years that their product was harmful. They had studies that showed the harm. After years of winning cases, they suddenly began to lose. It seems information had leaked out about the secret studies, and the information about the studies was no longer a closely-held secret. The “other side” knew about it.

Make no mistake, the same thing is going to happen in the medical world. You’re going to see, one day, litigation that is going to take a position that will attack the pharmaceutical industry as well as the medical industry. The lawsuits will allege, on the part of the doctors, old fashioned malpractice. But, with the pharmaceutical industry, the litigation will focus on what they knew, what they could and should have known, and what the science actually says about good health. They will be unable to plead ignorance. There will be a legal presumption of their knowledge about the scientific studies and conclusions on the subject. There is a wealth of data and thousands of studies out there that are showing us that cancer is closely linked to diet. The data also is showing us that the current treatments for cancer either not effective, or they are not as effective as they could be if the doctors would pay attention to the studies, the accumulated data that says cancer treatments that are coupled with dynamic natural treatment are far more effective than treatment that lacks that element.

Dr. Russell Blaylock is a board certified neurosurgeon, author and lecturer. For the past 25 years he has practiced neurosurgery in addition to having a nutritional practice. He recently retired from both practices to devote full time to nutritional studies and research. He is the author of several books, and more recently, a book entitled Natural Strategies for Cancer Patients. This book is “cutting edge” stuff. I predict it will be used by lawyers, eventually, in their quest to bring the pharmaceutical industry and the medical profession to court to answer as to why they have ignored what Dr. Blaylock describes so completely in the book that he spent over three decades researching.

Blaylock discusses how normal cells become cancerous, and goes into great detail as to the many ways nutritional intervention can interfere with cancer cell growth and spread. More importantly, he shows how the current data and studies shatters one of the myths firmly held by most oncologists, namely, that antioxidants interfere with conventional cancer treatments. Most doctors who treat cancer patients adhere to the myth (for which there is absolutely no reliable scientific data) that a patient should absolutely stay away from antioxidants (which are so good at destroying free radicals). Blaylock demonstrates that the truth is and always has been that a cancer patient needs antioxidants in his or her treatment.

The book is a “must read,” and it a book that ought to be in the hands of every person who has cancer or who has a loved one with cancer. But, I think it’s a book that ought to land on your lawyer’s desk, too, especially if you lose a loved-one to cancer because a doctor refused to pay attention to what the scientific studies have been showing with regard to treatment of cancer patients with a holistic approach that includes proper nutritional therapy.

Following is an interview with Dr. Blaylock that demonstrates some of the cogent arguments that he makes in his books.

Child Molesters in the Church - Church Policy

Most Protestant churches do not have a “church policy” regarding child protection.

That’s unfortunate, because it can have serious consequences. If an incidence of child molesting hits your church, be sure that a lawsuit is likely to hit the church. That "hit" could be a crippling financial blow that might destroy it. It does not have to be that way, if the church would take certain steps to protect itself legally. Those steps necessarily involve the protection of the children in the care and custody of the church.

It is somewhat ironic that if you asked the pastor of most churches whether they had a Child Protection Policy, they’d indicate they do have such a policy. Sadly, they don’t even recognize what is meant by that term. The position of some, radical though it may seem, is that since everyone is against child molesting, then it can be said that it goes without saying that the church is against such things, thus, there is a “policy.”

Others are a bit more sophisticated.

One church I know held a view that sounds something like this: Every church member is against child molesting and for child protection. We take steps to watch out for this kind of thing. It’s a heinous thing and we don’t want any child harmed. Our church has certain standards with respect to the lives of our workers. If a worker is found to be living in sin, we will dismiss that worker immediately. We make sure a worker meets our standards even before they are accepted as workers. We will handle these kinds of issues ourselves. We know what to do. [and blah, blah, blah...]

Still other churches hold to the view that they watch out for such things and are very aware about the need to beware of sexual predators who might victimize a child under their care. They have security monitoring the premises. They warn the workers to be careful. Workers are instructed to never be alone with a child. All events are chaperoned by at least two adults.

But, they still don’t have a church policy. They think they do, but in reality, they don’t.

A church policy must have, at a minimum, the following features:

• 1. It must be in writing.
• 2. It must be designed so as to reasonably protect the children in the care and custody of the church.
• 3. It must be disseminated.
• 4. It must be implemented.
• 5. It must be followed.
• 6. It must be comprehensive, that is, it must cover all the bases.
• 7. It must be understood and understandable.

Many, if not most, church leaders assume they have a “handle” on the issue. They presume to understand what it is that the church must do in order to protect both the child and itself. But, far too many do not. Some do. But, many are ignorant of their ignorance.

For example, I recall a conversation with a pastor who was one of those who assumed he had things under control. One piece of the conversation went something like this:

VG: So, if you’re called to the stand, you’d testify that everyone in your congregation knew about your policy?

Pastor: Well, maybe not everyone. But, we did talk about it with the deacons and everyone in that meeting got a handout, plus every Sunday School teacher got one.

VG: So, if you had a worker who wasn’t in that meeting, would he or she have gotten that handout?

Pastor: I, uh, well, I don’t know. I suppose. I’m assuming that the leaders would have made sure of that.

VG: But, you realize that you would be the one on the stand answering questions like that? And you do understand that the old proverb, “the buck stops here” is very much applicable?

Pastor: Sure. I will make sure every worker gets a copy.

VG: Suppose a child comes to the church for the first time with her parent and mom leaves her off in the Sunday School. Now, suppose further that on this particular day, a man comes to the Sunday School class looking for this child. And, suppose that on this particular day, there is a new worker there who didn’t get her copy of the “rules” you handed out. Or, perhaps she didn’t read them if she got them. She hands the child over, but it turns out the man is not her father, nor even a relation. He disappears with the child. Is there any liability on the part of the church?

Pastor: I suppose so, yes.

VG: I can tell you that for certain there would be. But, let me ask you this: Do you have any proof that you gave a copy of the policy to these workers? And if you do, is there any proof they read it? And, that they understood it? And, that they will comply with it?

Pastor: No.

As we talked further, it became clear that the “policy” they had was completely inadequate. There were so many potential problem areas not addressed that any jury would have found against the church because their efforts to protect the children in their care was not “reasonable.” Indeed, they took more security precautions to safeguard their cars and the premises than they did the children. It wasn’t because they were a bad church. They were just ignorant of the large number of areas that must be addressed, some of which are complex, in the undertaking of formulating a valid church policy. For example, they had no policy or even an awareness of the problem dealing with who is able to take a child out of his or her Sunday School class. It was kind of understood that if someone showed up for the child and knew the child by name, and the child went with them, that was all right.

If a church does not have a written church policy that is published to the congregation and followed regularly, then some day, a child will be harmed and the church will be harmed. The harm to the child will be permanent. They harm to the church may prove to be “fatal” in economic terms, and even if not, the reputation damages may have consequences lasting for decades.

Predators are cunning, devious, and able to spot vulnerabilities in a church system. Sometimes, there’s almost nothing you can do to protect against them. A dedicated molester will find a way. But, if a church makes it too difficult and places obstacles in the way, he’s usually going to look for an easier target. He’s got a virtual banquet of churches to choose from, ranging from those who are arrogantly ignorant, to those who are just ignorant. He’s not going to choose the churches that are aggressively establishing guidelines and policies designed to thwart his evil.

There is a book I highly recommend on the subject. It is designed to not merely inform, but to educate and motivate. The book contains some useful forms, but most of all, it contains all the reasons why your church, if it is to survive in the coming days as an outreach to the community, must address the issue of what to do about protecting the children and the church. The book is entitled “Protecting Your Church Against Sexual Predators.”

I may be a bit biased, but frankly, I think it is a “must read” for every church member, not just the leaders. An informed church is a church on guard.

An ignorant church is a "candy store" for a child molester.

Some day, one will visit your church.

It's almost a statistical guarantee.

Heparin: The Road to China has Potholes

On November 2, 2007, I underwent open heart surgery. During the surgery, I was administered the drug Heparin. I had an "allergic" reaction to it. Subsequently, my recovery was pretty dicey. I had days in ICU where I suffered from extreme bouts of heat, so much so I had to have a fan blowing directly on me. That diminished, but a week later, I still had periods of time when I'd go through several hours of extreme heat.

Also, I had difficulty breathing. For days, especially in the night, I'd gasp for breath. I recall one night curled up in a fetal position, so weary, tired of the constant gasping for breath and wondering if I was going to make it.

Now, I've learned that there's been a massive recall of the drug Heparin. It seems the product, made in China, had a bacterial agent in it, or the drug was in fact, a counterfeit! Incredible. I'd certainly like to know whether I've gotten something that, in a dozen years is going to do me in, or turn my skin purple, or cross my eyes. One thing is for certain: the reaction I got from Heparin came close to putting me on the other side of life.

All that to say this: In our society, we routinely expect the roads upon which we motor to be hazard-free. We expect that when we top the rise of a road, that it will continue. And, when we are given a drug, we expect it to be free of contaminants. But, that's a "road" that is becoming increasingly filled with potholes, and roads that suddenly end, with no warning signs posted.

Unfortunately, in the world of "Big Pharm," we are at their mercy. They make a HUGE profit off the drugs they sell to us. If drugs were gasoline, we'd be paying $20.00 a gallon. Lots of money in drugs, legal or otherwise. The Drug Industry is a powerful lobbying group, and it's no wonder that they seem to be able to get away with stuff that makes the tobacco manufacturers look like sellers of cotton candy.

Speaking of "legal," one certainly has to wonder how it is that a drug manufacturer can license a company in a foreign country (like China) to produce any drug that will be consumed in America, where there is absolutely no ability on the part of the U.S. Government to monitor the manufacturer for cleanliness, for quality control, or any of the normal demands made by our government on U.S. companies who manufacture products which we consume, including drugs.

Maybe it's time we begin to put some pressure on that cabal of legislators who cater to these companies who are willing to put us at risk. I say it's time to put the careers of those legislators at risk, be they Republican, Democrat or whatever.

Copyright 2008 - Voyle A. Glover

Sex Discrimination in a Nutshell

The Law

The main statutory (law-based) protection against sex discrimination is under federal law and is found under what is commonly called “Title VII.” The Civil Rights Act (See: 42 U.S.C. §2000e, et. seq.) provides that it is unlawful for an employer (private employers with 15 or more employees, employment agencies, and labor organizations) to “fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual because of such individual’s ...sex....” 42 U.S.C. §2000e-2(a)(1). Sexual harassment is also prohibited, though it is not specifically mentioned under the statute. The United States Supreme Court in the case Meritor Savings Bank, FSB vs. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399 (1986), held sexual harassment was in fact, an element that can be implied to exist within the statute.

After the Supreme Court and appellate courts began what was perceived to be a regression or reining in of the rights under the civil rights laws, Congress passed the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). This law expanded the rights under Title VII and enforced the notion that victims of discrimination, including sex discrimination and harassment, were going to have substantive remedies. It also stopped the courts from making regressive rulings in certain areas of the civil law arena.

The new law expanded the remedies and rights, including the right to a jury trial, and to compensatory and punitive damages. Previously, Title VII provided equitable remedies, limited the party’s right to trial before the bench (judge), and limited damages to back and/or front pay, costs and legal fees. That was it. No punitive damages were allowed and no compensatory damages. However, the law is now that if a victim can show certain elements in her (or his) case, that Plaintiff will be entitled to damages caused by mental anguish or emotional sufferings.

There are other, lesser used statutes that may be applicable where someone has been a victim of sexual discrimination, including , 42 U.S.C. §1983, which prohibits a person acting under color of state law to deprive any person of his or her constitutional or federal rights. A Plaintiff may, if applicable, bring a claim arising under §1983, in the same complaint as the claims arising under Title VII. Other statutes may also offer protection, depending on the facts and circumstances in your case. See: 42 U.S.C. §1985; Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988); 20 U.S.C. §38; 42 U.S.C. §2000e-k; 29 U.S.C. §206(d); 29 U.S.C. §2601 et seq.

State law claims may also be brought, but in the state of Indiana, it is more common to use the broader, stronger federal laws and use the state laws to include tort claims, such as intentional infliction of emotional distress, constructive discharge, assault and battery, retaliation and defamation. Note that the mere fact that there is a wide array of available remedies does not mean you have a case or claim under any particular remedy. Every sexual discrimination case is fact sensitive. That means you must have facts that are going to support your legal claims made under any particular statute or case law upon which you base your case.

Establishing Your Case

You must have certain elements present in order to make a valid claim of sex discrimination or harassment or retaliation, or a hostile work environment (based on your gender). There are many things that can be alleged in a case, far too many to mention here. Suffice it to say, your claim must allege that because of your gender, you were singled out for treatment that was different from your co-workers of the opposite sex or that in some way, you have been targeted by an employer because of your gender, and that you have suffered harm as a result. (I have purposely made this very broad statement. I’ll clarify somewhat later.) For example, a supervisor makes unwelcome advances and makes it clear that if you do not comply, you will suffer consequences such as denial of promotion, or assignment to a less desirable position, or discharge. The question at trial to that supervisor, of course, would be whether he or she made such proposals to those of the opposite sex of yourself. (This article does not deal with same sex discrimination, which can also be actionable.)

It is not necessary that the supervisor touch you or even attempt to make an unwanted touching. It is sufficient that the proposals are made and that a job detriment occurs as a result of your non-compliance. In some instances, one may prevail even where a tangible job detriment did not occur, since the threat alone can cause mental and emotional suffering. The threat of firing or demotion can be a heavy weight to bear. In addition, having to work in an environment where you are subjected to unwelcome advances, whether by a supervisor or co-worker, is clearly a hostile environment, which is actionable.

You must prove at trial by a preponderance of the evidence that the conduct on the part of the supervisor was unwelcome. However, if you consent to the advances, you may find yourself on the losing side of a your lawsuit. It definitely will not help your case. However, it does not mean that because there was a consensual relationship that you have no case. If you broke off that relationship and refuse to continue it, and as a result you suffer a job detriment, you can still prevail. Much will depend on how the jury perceives your situation and your employer’s responses to the situation.

And that leads to another important element: You must make a complaint to your employer, even if is a situation where the owner of the business who is the main individual discriminating. If you’re confronted with a sexual harassment or discrimination situation in the workplace, ordinarily, you must inform the employer. The Court is going to want to see that the employer had (a) knowledge of the discriminatory acts; and (b) had an opportunity to remedy the situation. For example, if a co-worker is sexually harassing you and you say nothing to your employer, then you quit your job and file a complaint against your employer alleging sexual discrimination, the Court is not likely to find the employer liable (absent other evidence/factors or circumstances).

Laying a Foundation: Here are some important steps to take in laying a foundation for your case:

1. Make a verbal complaint to your superiors. Ask to speak to someone in authority, even if you think it will be pointless and that they will do nothing. This is true even if the person doing the discrimination is the President and owner of the company. If you can have a witness, great, but even if they will not allow a witness, you still should make the complaint. However, do not be shrill. Do not yell and do not threaten. It does not mean you cannot be emotional. Just don’t get mean and ugly. It’ll not help your case. Be assured that in trial, the employer will embellish your actions.

2. Memorialize the conversation. That means, within a week, follow up with a written letter that recounts the conversation. Here’s an example of how such a letter might sound where the discrimination was done by the President and owner: “Dear Mr. So and So, on (date), I met with you and told you that I did not appreciate your sexual advances and asked you to stop. You replied that you thought that I would probably move up a lot faster if I were not so uptight, implying that unless I gave in to your sexual advances, I would not advance. I told you I want this all to stop and hoped you would not hurt my career because of my refusals.” (This is only to be used as an example here. Do not copy this verbatim but instead, consult with an attorney as to the proper language and have him or her assist you in the drafting of that letter.)

You now have two important pieces of evidence in your case, should it go to court. First, you have your own testimony. Secondly, you have a written piece of evidence that is close in time to the actual conversation and that recounts or memorializes that conversation.

3. Keep a diary. Keep a written account of events. Make sure you date the events. Also, realize that everything you write will be read by your employer some day, should you end up in court. The process called “discovery” will require your attorney to turn over that diary.

Filing with the Equal Employment Opportunity Commission (EEOC)

The EEOC is a federal agency empowered to investigate and prosecute claims of discrimination. An employee must file an administrative charge with the EEOC before he or she can file a complaint in federal court (42 U.S.C. §2000e-5) It is important that you do not blow the deadlines for your case. Procedurally, you are required to file an administrative charge with the EEOC before you can file a complaint in federal court (42 U.S.C. §2000e-5).

Indiana is what is known as a “deferral” state, which means, among other things, that you have 300 days from the date of the occurrence of the discrimination to file your complaint. Note that “file” does not mean “mail.” If you mail your complaint on the last day and it is filed three days later, you have missed your deadline. In Indiana, which has offices under the Indiana Civil Rights Commission, you may file with a local office. They will then forward the complaint to the EEOC, but they do the initial intake. Or, you can go directly to the EEOC. Do not delay. If you go past the deadline, you may be unable to make a complaint because of the 300 day requirement. However, if you have discriminatory events that occur subsequently, make sure you file. Those events that are beyond the 300 day mark may still be used in your case, but your case cannot rest solely on that event.

The best thing to do, and one which is more likely to get the attention of the EEOC staffers and make your complaint more likely to receive prompt action (as opposed to prompt dismissal), is to see a lawyer and have him or her draft the complaint on the official EEOC forms. It must be notarized. The complaint is then either mailed (certified) or hand delivered, depending on your location. It is best to have a lawyer who has dealt with the EEOC, with you though the entire process, since he or she will understand the proceedings, and will give you a better chance at a successful mediation. (If you are a federal employee, it is, unfortunately, extremely important you retain counsel early in the process. It will save you from some serious mis-steps in the early parts of the process, since the administrative proceeding are somewhat complicated and confusing. Also, please be advised that the procedures discussed here are somewhat different, as are the timetables, so please don’t rely on the information given here if you are a federal employee.)

The EEOC will evaluate your complaint. A well drafted complaint with supporting documentation will get their attention and will typically result in an investigation. However, since the EEOC is understaffed, your complaint has a good chance of being found without merit. The EEOC will send you a letter stating they have no found no discrimination (called the “90 day letter”) Indeed, this is the finding of the vast majority of the complaints filed with the EEOC. Do not despair. It has no legal significance. It can’t be used against you in court. But, it does start the “clock” to ticking. At that point, you have 90 days to file your federal complaint in court.

Filing Your Complaint in Federal Court

If you have not already done so, find a lawyer immediately. Do not wait until the last week. Most lawyers will not accept a case where they have to prepare a complaint within a few days. There’s way too much work to be done in the drafting of a complaint and typically, the lawyer will not have the time to draft it. What I have done in some instances where a client sought my assistance at the last minute is to have the client prepare their own complaint. These are forms that are available at the Clerk’s Office in federal court. The client prepared the complaint (filled out the blanks), filed it, then returned a copy to me. I then began preparing an Amended Complaint. If you’re running up on your 90 day deadline and you don’t have a lawyer, at least get into the Clerk’s Office, get a form, fill it out and file it. That way, you will have stopped the clock and your rights are preserved.

The Process in Federal Court

It is a process that can be confusing to those who have never been there. The first thing that is done is to send the employer (the Defendant) a copy of the lawsuit–the complaint (and to any other defendants that you may have named in your complaint). Thereafter, they will file an Answer, which is a response to your lawsuit. Sometimes, they may file for an immediate dismissal (if, for example, you missed your deadline). The Court will schedule an initial conference between the lawyers for each side. This is to arrange certain dates and for the judge and the lawyers to get a feel for the cases insofar as time and scheduling. Certain information will be exchanged by the parties. There will be a “discovery” period of time where the parties will take depositions (oral questioning of witnesses, including the Defendant and the Plaintiff), and production of documents that are important to the case. In addition, there will be written questions sent by each side to the other called “interrogatories.”

Finally, at some point, usually after discovery, there will probably be a Summary Judgment Motion filed by the Defendant. This is a legal document filed by the employer asking the Court to dismiss the case of the Plaintiff because of a failure to state a legal claim that can be supported by the evidence. It is beyond this article to explain all the legal standards surrounding such a motion. Suffice it to say that in employment cases, they are almost always filed, and are often successful.

Assuming the Court denies the Motion for Summary Judgment, the case proceeds to trial. Much work is involved. There are many documents to assemble and an enormous amount of work by the attorney to prepare for trial. There are Motions to prepare, Jury Instructions, Trial Briefs, and depending on the case, there may be a need for legal experts. All the witnesses will require time for the attorney to develop, as well as preparing and assembling the necessary documents, including “demonstrative” evidence (“show and tell”). It is an arduous task requiring an enormous amount of time.

By the time you get to trial, more than a year will likely to have passed. The trial may take a week or more. At the end, a verdict is rendered. If you asked for a jury (and you should), the jury will return a verdict. After that, if you win, the Defendant may appeal. Or, if you lose, you may decide to appeal.

Conclusion

This has been an effort to give you the basics of a sex discrimination case in a “nutshell.” There are far too many variables to treat every circumstance in this article. For example, I’ve not touched on federal employees, though they enjoy the same protections, but have a somewhat different process on their journey to federal court (once in federal court, the process is the same). And, in most civil rights cases, there are genuine efforts by the parties to seek a settlement (which is where the Defendant pays more than they think they should have to pay, and the Plaintiff gets less than she thinks she deserves).

The information provided here is not designed to provide specific legal guidance for any individual who may have a claim. You should consult a lawyer who is experienced in this area of law in order to determine whether you have a case, and to assist you in preparing it, assuming you do have a case. The information here is merely designed to give you a broad overview of how the system works.


Copyright 2008 Voyle A. Glover

Beware of Filing a Discrimination Case pro se

The Civil Rights arena is a very complex one. It’s not an area of the law well suited for the unwary, nor is it where someone can truly compete without a lawyer. There’s just too much that the lay person is not going to know that is crucial to their case.

For example, most Plaintiffs who file a discrimination lawsuit pro se (unrepresented by counsel) fail to understand the vital role of the process of discovery. It can be difficult for a plaintiff to remain in court with their case even with a lawyer, but without doing proper discovery, the odds are pretty strong that your case is going to be tossed out of court on the Defendant’s Motion for Summary Judgment. This is a motion that says, in essence, that there isn’t a material issue of fact raised by the Plaintiff to be tried to the jury or the court. Thus, if the court decides there is no genuine, material issues of fact to be tried, it may issue a judgment for the Defendant, dismissing the case. (This often happens in these cases, even when represented by counsel.)

One of the first things a Plaintiff must do in a case is to obtain discovery. This means, you absolutely must get witness statements in the form of an affidavit, but preferably by deposition, and you must obtain as much documentary evidence as possible that is supportive of your claims. This kind of information (depositions and documents) may enable you to show to the court that there are genuine, material issues of fact that must be decided by the fact-finder (usually, a jury).

Too many Plaintiffs go into court thinking that their words are sufficient, or that co-workers will support their claim, or that somehow there are records that will mysteriously appear to support their complaint. Sometimes that is true. But, such things don’t automatically occur. These are things that have to be unraveled. There are long, wiggly threads of evidence that must be followed, document by document, fact by fact, until you find the “meat,” the substantive fact(s) that support your claim.

So, before you begin piling up your plate, check with a lawyer who has dined in the federal courts and understands the proper way to devour such a plate of legal spaghetti.