In the trial of McCarrell v. LaRoche, judge Carol Higbee did almost everything right.  According to the appeals court, her “overall studious and even-handed management of [the] complex case was exemplary.”

But…   

But she should have allowed defendant pharmaceutical manufacturer Roche to present statistical evidence, such as the fact that Roche’s acne treatment drug Accutane had five million users when the plaintiff began his treatment.

As a result, a $2.6M plaintiff verdict was reversed, and the parties will do it again before Judge Higbee in New Jersey Superior Court, starting Monday January 11, 2010.

Andrew McCarrell sued Hoffman-LaRoche and Roche Laboratories, which manufactured and distributed the prescription drug Accutane. McCarrell alleged that as a result of taking Accutane for an acne condition, he developed inflammatory bowel disease (IBD), which led to the surgical removal of his colon.

The defense proffered testimony from Dr. Martin Huber, Roche’s Global Head of Drug Safety, that five million people had been treated with Accutane when the plaintiff began his treatment, thus purporting to show that the defendant might reasonably have interpreted the user complaints as a weak signal of risk.  But Judge Higbee concluded that “[t]o suggest that a reasonable company doesn’t explore a rare risk is an unfair suggestion to the jury…it does not matter if the drug is sold to 10 million people or 5 million people or 1,000 people, because if you have a serious risk, it is significant.”

In an unpublished opinion, the Appellate Division summarized the factual record regarding the drug Accutane:

Accutane is a prescription medication developed by Roche. It was approved by the Food and Drug Administration (FDA) in 1982 to treat recalcitrant nodular acne, a severe and disfiguring skin disease characterized by large, inflamed cystic lesions on the patient’s face and back.

Although the exact mechanism of action for how Accutane works is unknown, Roche discovered that the drug was effective in suppressing the production of oil and waxy material produced in the sebaceous glands. Nodular acne is caused by the accumulation of sebumunder the skin, which ultimately ruptures the follicle wall, forming an inflamed nodule. Accutane was found to be highly effective in treating nodular acne that has been recalcitrant to standard treatments.

Accutane is a teratogen, meaning that there is a high risk that if a woman takes the drug while pregnant, her child will be born with life-threatening birth defects. Additionally, common adverse effectsfrom Accutane include dry skin, lips, and eyes, conjunctivitis, decreased night vision, muscle and joint aches, and elevated triglycerides.

Prior to receiving FDA approval for Accutane, Roche conducted several pre-clinical studies of the drug, using dogs.Those studies revealed instances of gastrointestinal bleeding in the treated dogs. 

 CVN will webcast the Accutane trial live from New Jersey.  CVN is also offering Free Clips of the first five minutes of each side’s opening arguments.

The 15 federal district courts within the Ninth Circuit will be allowed to experiment with video coverage in civil, non-jury matters.  The Ninth Circuit Judicial Council announced the new policy on December 17, 2009.  

According to the announcement, the Ninth Circuit hopes that “being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law.“

The Ninth Circuit’s move is an important and laudable step.  Time will tell whether it represents only a baby step or in fact a giant leap forward (only about 1/3rd of 9th Circuit trials are bench trials, and the actual approval rate for media requests remains to be seen).  However, this move is consistent with a growing trend across the country favoring public access to judicial proceedings.

Because CVN has webcast hundreds of trials and hearings in 30 states, it is uniquely qualified to understand the concerns of camera opponents.  CVN frequently encounters opposition from litigants who, although engaged in a public dispute in a public forum with public implications, nonetheless wish to exclude the public.  

In our experience, the opponents of public access only occasionally argue that the public has no right to see the proceedings; rather, they emphasize all the ways in which cameras might taint the proceedings.  For example, they claim that witnesses will be intimidated, the equipment will interfere with the physical space, the camera operator will be disruptive, or the presence of the cameras will somehow confuse the jurors about the importance or nature of their duty.

Against all of these hypothetical bugaboos, weighs ponderously our actual experience of cameras in the court.  They simply do not interfere with the administration of justice.  CVN’s experience covers all types of proceedings — trials and hearings, civil and criminal, jury and non-jury, state and federal.  Our cameras have never been asked to leave, no case has been reversed (or even appealed) as a result of our media presence, nor even has there been a suggestion to our knowledge that the presence of cameras interfered with the administration of justice in any respect.

Augmenting CVN’s experience is the wisdom of the states.  Florida has for the past 30 years allowed cameras in nearly all proceedings without any impairment to the judicial system.  In fact, some states, including Kentucky and Arizona, use their own permanent, in-court cameras to capture trial proceedings.  Video cameras have become a regular part of every day life, and the courts are no exception.

There is a legitimate judicial concern with cameras, though, and that is to ensure that any media presence does not adversely impact the proceedings.  Courtrooms, like libraries, are very special public spaces, where custom requires a heightened civility, and words are sometimes spoken in a whisper.  The videographer used to covering rock concerts or sports events needs to approach judicial proceedings with an understanding of the required decorum.

CVN’s videographers, specially trained for and experienced in covering court proceedings, have proved in the past, and hopefully will demonstrate once again in the Ninth Circuit, that the benefits of improved public access far outweigh even the imagined risks, let alone the real ones.

Resources:

• Ninth Circuit Press Release on Camera Pilot Program
• Florida Press Release Commemorating Cameras in Court
• Florida Supreme Court Proclamation on Cameras 
• History and Future of Camera Access in Courtrooms (White Paper) 

On the 9th day of testimony in the eBay v. Craigslist trial, eBay counsel dogged final witness Ananda Martin, a Perkins Coie associate who in a memo had characterized Craigslist’s proposed strategy as “crafty,” by leaving a Black’s Dictionary definition on display during much of Martin’s cross-examination.  Martin testified that by using the word “crafty” she had intended to convey that Buckmaster’s idea was “creative,” and meant it as a compliment.

After Martin’s testimony, the Court went off record to work out the final trial logistics.  Expert depositions, including video depositions, and exhibits will be submitted to the judge for review, as well as post-trial briefings and objections.  It is not clear when Chancellor Chandler will render his decision.

Visit CVN to watch a complete, gavel-to-gavel on-demand replays of the trial, or just watch selected video highlights clips from each day of the eBay v. Craigslist trial. 

Craigslist counsel Ed Wes completed his testimony Thursday morning, and Perkins Coie associate Ananda Martin took the stand.  Martin helped craft the shareholder rights plan that is at the heart of the eBay Craigslist dispute.

Martin testfied, “Mr. Buckmaster takes a hands-on approach and likes to be involved earlier than many other CEOs I have worked with.” 

CVN‘s coverage continues gavel-to-gavel, with complete trial live and on-demand webcasts, as well as video highlights clips. 

The CVN eBay-Craigslist trial coverage was interrupted briefly this morning due to a power outage at the Delaware Chancery Court (the courtroom went dark and the judge left the bench).  When testimony resumed, questions to Craigslist counsel Ed Wes focused tightly on the development and implementation of the Craigslist corporate governance provisions at issue in the trial, as well as the options considered.

Asked whether eBay’s proposed information firewalls were sufficient to obviate the need for a staggered board of directors, Wes testified, “eBay should have had firewalls in place all along.  This is stunningthat they’re only putting in firewalls after they launched acompetitive threat.  We didn’t trust eBay.” 

The eBay trial is being webcast live by Courtroom View Network.  CVN is also making video highlights of the eBay trial available for each day.

Craigslist CEO Jim Buckmaster’s testimony filled Day 6 of the eBay v. Craigslist trial.  On direct examination, Buckmaster testified that eBay CEO Meg Whitman promised him, “CEO-to-CEO,” that if Craigslist did not want to be acquired, they would gracefully unwind the deal.

CVN’s live trial webcast continues.  The first week’s video highlights clips are also now available. 

The eBay-Craigslist battle continued when Craigslist CEO Jim Buckmaster (6’8″) began his testimony.  Buckmaster met with eBay’s Garrett Price over beer and chicken wings. “He said that unlike Google, it was common for eBay to acquire a minority interesting and hold it for an unlimited time.”

The CVN webcast is available live and on-demand.  CVN also offers video highlights of each day.

On the 5th day of the eBay-Craigslist trial, Cooley Godward litigation partner Michael Rhodes pressed hard on Craigslist founder Craig Newmark during cross-examination, challenging Newmark to deny that the eBay-Craigslist agreement never said that eBay would not compete with Craigslist, and that that agreement expressly stated it was the entire agreement between the parties.

CVN webcasts the eBay-Craigslist trial live and on-demand, and also offers video clips of the trial.