Source 1 (http://overlawyered.com/2013/09/publish-article-undermines-lawsuits-see-court/)
QuoteA plaintiff's lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.
Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child's shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb's palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians ("traction"). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.
A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon's clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families' failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. "As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment."
First Amendment? Let's not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?
Our "watch what you say about lawyers" tag — which perhaps we should rename as "watch what you say about lawyers or their cases" — is here (cross-posted at Cato at Liberty; & welcome readers from Jesse Walker, Reason).
Source 2 (http://www.ubpn.org/forums/17/34884)
Quote from: Ken LevineFriends,
As many of you know for the past few years I have been fighting against a medical article published in the American Journal of Obstetrics and Gynecology written by Dr. Henry Lerner and Dr. Eva Salamon titled "Permanent Brachial Plexus Injury Following Vaginal Delivery Without Physician Traction or Shoulder Dystocia" The article claims to be the first case report of a delivery with a permanent brachial plexus injury in the absence of shoulder dystocia and clinician applied traction. Since its publication in 2008 this article has become the principle medical article used by the defense at brachial plexus trials to support the idea that permanent brachial plexus injury is not caused by physician applied traction but rather by the mothers maternal pushing forces. First, we know from every piece of credible medical research that the mothers maternal pushing forces are not strong enough to cause a permanent brachial plexus injury. Second, and more important, the article is fraud. In fact, for reasons I would be pleased to expand upon, I have evidence that in fact at the delivery that was the subject of the article there was a shoulder dystocia and traction was applied by the doctor.
When I first learned of the article I did write to the American Journal of Obstetrics and Gynecology and the American College of Obstetrics and Gynecology (ACOG), the organization that publishes the Journal, and demanded a retraction. Both the Journal and ACOG refused.
This article must be stopped. It has caused juries across the country to find against your children at trials of brachial plexus birth injury cases.
In an effort to take down the article once and for all my firm is filing a lawsuit in the United States District Court in Massachusetts claiming that article is fraudulent and deceptive and therefore violates Massachusetts' very strict consumer protection law. This is the first time in the country that a consumer protection law has been used to fight against misleading and deceptive medical literature.
I am searching for any families who lost their brachial plexus case at trial in which the Lerner/Salamon article was referenced or discussed. If you lost your case at trial and am uncertain if this deceptive article was used by the defense please ask your lawyer. If this article was used at your trial I may be able to add you to the federal lawsuit. For some of you it may be a second chance to have your case heard. At the very least you will be helping us stop the use of this deceptive and misleading medical article.
I hope to hear from some of you. We must take every action to take down this article before it can be used against one more of your children. Thank you.
Yeah. These scumbags definitely have my backing for nomination. Holy shit. This is almost as bad as when that Italian scientist was convicted of murder for failing to predict a damn Earthquake.
Quote from: surhotchaperchlorome on September 19, 2013, 08:03:39 PM
Yeah. These scumbags definitely have my backing for nomination. Holy shit. This is almost as bad as when that Italian scientist was Those Italian scientists were convicted of murder for failing to predict a damn Earthquake.
yeah, you just wait: the ones being sued are likely going to lose.
Quote from: Ibrahim90 on September 19, 2013, 08:16:44 PM
yeah, you just wait: the ones being sued are likely going to lose.
Yeah. And I didn't know it was plural. :P My bad.