The Lighter Side of Health Law – April 2023

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Transcript

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This episode of A H L A Speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.

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Hi, I'm Norm Taber with this month's edition of the Lighter Side of Health Law. Too real for its own good. You hear it in ads all the time. Tastes just like the real thing. It occurs most often in ads for diet foods and drinks. The claim is that you don't need to give up flavor for a dietary substitute, but can the product be too much like the real thing? Yes. According to a recent federal court decision, CHRO adex held a patent on a dietary substitute for cow's milk. Chro adex touted the product as containing components of real cow's milk. But when CHRO adex sued another company for patent infringement, the court rejected the claim ruling the CHRO adex patent invalid. Why? Because the product is so much like real cow's milk that it is cow's milk and you can't patent cow's milk or any other natural product. Patent invalid. The case is CHRO adex versus Elysium Health Federal Circuit. The days of her life. In the last episode of the days of her life, our heroin, Elizabeth Holmes stood convicted of massive fraud in connection with Theranos, the blood testing company she founded. She was sentenced to over 11 years in federal prison. Elizabeth had appealed and was dedicating her efforts to staying out of prison pending the outcome of the appeal. Alas, in this episode, cruel Federal Judge Edward call me Snidely Whiplash. Davis denied her request pointing out that her chances of a reversal were about as good as a Theranos blood test. Elizabeth, he ruled has been convicted of so much fraud that even if she won her appeal on some counts, she would still stand convicted on enumerable others. Tune in again to the next episode. When Elizabeth is assigned to the prison laundry, new to such labor or any labor for that matter, she is simply unable to remember the sequences wash first, drive second. Too good an argument. Can an argument be too good? Well, yes, it can be too good if it proves too much. That's the reasoning of the spade of decisions rejecting the public nuisance claims brought by governmental units against makers and distributors of opioids. The latest one is the fourth circuit's affirmance of a district court's dismissal of a suit brought by Huntington, West Virginia. The reasoning. If the makers and distributors of opioids are liable for harm caused by their legal products, then it follows that the purveyors of alcohol, cell phones, firearms and other legal products would be liable for theirs and that can't be. In other words, the plaintiff's argument proves too much. The case is City of Huntington versus AmerisourceBergen Fourth Circuit nerve of a burglar award. You won't be surprised that this month's nerve of a burglar award goes to multi-time winner. Pharma bro. Martin Sre. You'll recall Martin from countless other episodes, bill as the most hated man in America. He cornered the market on a life-saving drug and immediately raised the price by 4000%. He's imprisoned for securities fraud and he's been banned from the pharmaceutical industry for life. It's thumbing his nose that that ban, that warrants the nerve of a burglar award. He's formed a new company, which he insists with his usual smirk is not in the drug business. And what did he name? His new company That is not in the drug business drug-like you heard correctly. He named it drug-like judges Without pets. Apparently Michigan judges don't have pets. At least a recent decision by the Michigan Court of Appeals makes it look that way. You decide Ross LaVey took his cat Kaiser to the vet because he wasn't eating. The vet administered prescription fluids over twice the amount that was safe for a cat Kaiser's size. According to Ross, poor Kaiser died, and sad to say he did not have any more lives, let alone eight of them. Ross did what you'd expect a grieving pet owner to do. He sued for vet malpractice and also for wrongful death and infliction of emotional distress. But right off the bat, the court ruled against Ross on all claims for non-economic damages such as emotional distress. Why? Because the court ruled a pet is merely a piece of property the most Ross could collect would be the value of Kaiser on the open market, presumably before he died. That's how I know Michigan judges don't have pets. If they did, they'd know that pets are not mere pieces of property. The case is Lave versus Bay Animal Hospital. Michigan Court of Appeals, Smucker. One of my favorite ad lines is the one for Smucker's Jelly. With a name like Smucks, it has to be good. Smucks has been a government supplier as far back as World War II when GI ration kits included Smucker's apple butter. But does Smucker supply so much jelly to the government that it's become part of the government creating a sort of Smucker bureaucracy? That's the position five former Smuckers employees took in a lawsuit against the company. They were terminated for refusing to comply with the company's policy requiring Covid vaccination of all employees except those with religious objections. The court ruled that Smuckers has not become part of the government, and the government did not tell Smuckers to deny exemptions to anyone. It told Smuckers to grant religious exemptions and left it up to Smuckers to decide who did or did not qualify. The case is Sche versus Smucker's. Sixth Circuit Caviar Management. You've heard of Caviar mTOR. While this is Caviar Management, a recent ruling by the N L R B upheld the right of employees to secretly record the conversations of management. Two. Starbucks employees complained about working conditions, which is a protected activity, fearing that management would punish them for it, which would be illegal. They secretly recorded management conversations. Sure enough, Starbucks fired them. Pointing out that the secret recordings violated not only company policy, but also state law, which requires all parties to consent to recording. The nlrb Didn't think much of the Starbucks policy or the reliance on state law to justify punishing employees for guarding their protected activity. The board ruled in favor of the employees and ordered Starbucks to reinstate them with back pay the lesson. If you're in management, be careful what you say as well as what you write a law firm gaff. There's a saying in politics that a gaff that's G A F F E, is when a politician accidentally says what he really believes. Maybe that taxes need to be raised. Well, the legal world was all Abu over what might be called a law firm gaff. A senior associate in one of the country's biggest law firms gave an in firm slide presentation to new attorneys. The presentation titled Non-Negotiable Expectations told the new lawyers what to expect from life at their new law firm. Slides said things like You are online 24 7 and you are in the big leagues, which is a privilege. Act like it. Well, someone leaked the presentation and as fast as you can say, holy rat race, it was viewed by every law firm and law student in the country with everyone agreeing that the tone as well as the words was all wrong. Why? Because the presentation was a gaff. It told the truth about life in the firm. How did the firm react to the negative publicity? That's right. The firm threw the presenter to the wolves. Why? He's just an associate. He doesn't speak for the firm. We partners are shocked. Shocked at the presentation. Ironically, the reaction was the exact opposite of a gaff. Instead of accidentally saying what it really believes, the firm purposely said something It doesn't believe. Complaint department, tv, weather, maps. This month's complaint concerns, tv, weather maps, especially the ones shown during weather alerts. Earlier this month, my area was under a tornado watch. Naturally, the local station was delighted to preempt the show I wanted to watch with a team of breathless weather people. And by the way, why does it take a whole team to do a job that one person did all the time? I was growing up? And on the same subject, why do the teams always have alarmist names like storm team and first Alert Weather team? Why isn't there a fair weather team and why do they try to make the weather sound worse than it is, but never better? They're eager to say it's 80, but it feels like 87 because of the humidity or it's 40, but with the wind chill, it feels like 12. They never say it's 90, but with a cooled breeze, it feels like 81 or it's 38. But in that beautiful sunshine, it feels so much warmer. The tip off to their alarmist tendencies is that they have terms for making things worse. Terms like heat index, humidity factor and wind chill factor, but no terms for making it sound better. There's no gentle cooling breeze factor. But back to my complaint, throughout the weather alert, they showed weather maps, maps in dazzling, somewhat lurid colors, and the colored areas were moving across the map and changing from time to time. And that's the problem. At least for me, 90% of the time there's no explanation of what the colors mean, which is more frightening. Yellow or purple? I have no idea. And they won't tell me. I would've quit watching, but I was waiting for my program to come back on. If you have a complaint, send it to me. Well, that's it for this month's edition. I hope you liked it. I'll be back next month with another edition of the Lighter Side of Health Law.

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