Tuesday, April 20, 2021

Public Accommodation

Another case of statutory interpretation. The subject is intertwined with workers' compensation, which is itself entirely statutory. 

Just what is a public accommodation and why is it important? The Americans with Disabilities Act (ADA) was passed in 1990 and quickly became part of the American legal lexicon. The implications in workers' compensation litigation were immediate and contentious. The law was intended to provide equal access to those who suffer disabilities, and too often work accidents/illnesses leave residual effects despite even the best efforts at medical treatment and care. It is common for a worker to suffer from "disability," in the course of a workers' compensation event. Through the 1990s there was significant focus on the subject as courts worked to interpret the provisions of the Act.

A very recent case from the Eleventh Circuit Court of Appeal provides an interesting analysis of a critical element of the ADA, the "public accommodation." In Gil v. Winn Dixie, No. 17-13467, D.C. Docket No. 1:16-cv-23020-RNS, (11th Cir. April 7, 2021), the court explained the "general discrimination provision" found in 42 U.S.C. § 12182(a), which provides:
"[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
The critical nature of the phrase "public accommodation" is immediately clear. It is in those "places" that discrimination is prohibited by this provision. In recent years, there has been significant debate and litigation over whether an Internet website is or is not such a "public accommodation." In the Gil decision, the Eleventh Circuit joins those courts that have concluded that at least some websites are not. That potential for some distinction will be of concern to some readers whose initial assumption might be a website is a website is a website.

However, the court begins its analysis with careful description of the website in this case, noting:
"Winn-Dixie owns and operates grocery stores in the Southeastern United States. It is undisputed that Winn-Dixie only sells goods in its physical stores and does not offer any sales directly through its limited use website."
There are those who suggest that the court's determination of Gil is potentially not a broad pronouncement that websites are not "public accommodations" as much as it is a narrow determination that not all websites are "public accommodations." The distinction, perhaps, is whether a website is a substitute for, or adjunct to, a retail environment. If a website offers goods for sale on a website as a store would on its shelves, there is the potential for a different outcome.

The litigation began five years ago, which illustrates that our justice system takes time. The plaintiff was a Winn Dixie customer who is legally blind. He learned of the potential through the store's website to perform some shopping functions, including refilling medication prescriptions. However, when he attempted to use the website, he found that it was not compatible with a software he utilized to "screen read" on the Internet.

Alleging that the website was therefore inaccessible to those with visual disabilities, Gil sued seeking various damages including "an order requiring Winn-Dixie to update its website 'to remove barriers'" to "individuals with visual disabilities." The trial court concluded that the Winn Dixie website is a "public accommodation." In doing so, the trial court "acknowledged that the circuit courts," that is the federal appellate courts, "are split on the issue of whether the ADA limits places of public accommodation to physical locations."

The Court provides an expansive list from the ADA, locations that the legislature included in the statutory definition of "public accommodations." The list is 12 paragraphs long (lettered "A" through "L"), and includes "an expansive list of physical locations"; over 50 examples are cited along with many "or other" phrases of seemingly broad inclusivity. However, the Court noted, "the list does not include websites."

The Eleventh Circuit explained this split, noting that the Third Circuit has held that “[t]the plain meaning of Title III is that a public accommodation is a place.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998). The Sixth Circuit has concluded that the "plain meaning" of the law means a place. Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995). Even the Ninth Circuit has rendered decisions focused upon the more narrow "actual, physical places where goods or services are open to the public, and places where the public gets those goods or services.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

The Court explained that other Federal Circuits have viewed the language in a broader context: "The First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) has determined that that the phrase “public accommodation” “is not limited to actual physical structures.” Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994). Specifically referencing that decision, the Seventh Circuit (Illinois and Indiana) has concluded that the "core meaning" of the "public accommodation" language precludes any "owner or operator" of a business "that is open to the public" from "exclud(ing) disabled persons." Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).

The Eleventh Circuit reversed the trial court in Gil, concluding that "the plain language of Title III of the ADA, public accommodations are limited to actual, physical places." Thus, in the Eleventh Circuit (Alabama, Florida, Georgia), this is the law. The same applies in the Third Circuit (Delaware, New Jersey, Pennsylvania, and Virgin Islands), the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee), and the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Mariana Islands, Oregon, Washington).

Thus a conflict in legal interpretation existed before Gil was decided. Conflict between the Federal Circuit Courts can be homogenized in two ways. The legislature could react to these interpretations of the ADA and enact additional or amended language to clarify the law. Legislative action would apply to causes of action that arose after such laws were passed. Or, the United State Supreme Court could undertake review of one such case and provide an analysis and conclusion which would be applicable across the country.

With little explanation of why, some legal pundits contend that Gil is likely to be a case in which such conflict is brought to the U.S. Supreme Court. In terms of explanation, it is pertinent to note that the conflicting opinions cited by the Eleventh Circuit were rendered in 1994, 1995, 2998, 1999, and 2000. The split has thus been at least apparent for twenty years, though the Gil decision in 2021 certainly brings the issue to the fore again.

It is also interesting that this interpretation returns us to the "plain meaning" of a statute, recently discussed in Statutory Interpretation in Colorado (April 2021). When a statute's plain meaning is clear, the courts need not proceed to examinations of legislative intent or sentiment. The Gil court noted that the plaintiff "relies on legislative history to support the notion that Congress intended an expansive definition of 'public accommodation' in the ADA." The Court reminded that "legislative history is not the law,” according to the U.S. Supreme Court. There is also citation to a concurring opinion of Justice Scalia regarding interpretation. He noted that a court's duty is to apply the plain meaning, and "if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it.” (Citations omitted).

For now, the law is somewhat settled in the Eleventh Circuit. A website that does not offer goods for sale is not a "public accommodation" under the ADA. Some writers continue to suggest that this may be a distinction addressed in future litigation. Similarly, some suggest that Gil is destined for review by the U.S. Supreme Court to resolve this decades-old Circuit conflict. The certainty in such prognostications is usually this, only time will tell.

 



Sunday, April 18, 2021

We're Really Back!

On October 6, 2020, I attended my first in-person workers' compensation seminar in nine months. At the time, I blogged "we're back" and then admitted that was an overstatement but concluded we were "returning." The OJCC annual seminar at the Florida First District Court of Appeal was February 21, 2020. That was a great program, but no one imagined it would have to hold us over for eight months. I was fortunate to have the October opportunity, a great many could not yet travel then. A great many cannot travel even now.

In the 1993 cartoon "We're Back, A Dinosaur Story" children were provided an amusing premise:
"A time traveling scientist goes back to prehistoric times and feeds dinosaurs a magic cereal that increases their intelligence - next they land in modern New York City for a series of comic adventures."
As I wandered the strangely quite halls of the Omni Champions Gate last week, I returned to the sentiment that "we're back." I no longer think that we are merely returning; We're back! And, with that realization, the cartoon returned to my memory. 

We're back! The Workers' Compensation Claims Professionals and The Florida Bar Workers' Compensation Section co-produce a great spring program annually. It has steadily grown from the old Board Certification Review Course that historically attracted 50-100 attorneys. In recent years, the crowd has been in the range of 400 by my estimate, and I am always proud to participate. Of course, in 2020 the program was cancelled as was so much of our lives, and travel restrictions continue to somewhat mute us. But, yes, We're back!

In April 2021, we gathered again at the Champions Gate venue. There were masks and distancing as we have come to expect. There were vendors striving to give away hand sanitizer that at least seems to have lost its attraction. And, there were crowds, handshakes, hugs, and interaction. I was astounded at how many handshakes there were. The fear and trepidation seems to have evaporated. It was refreshing to see so many faces, sans-masks. 

Many stories were shared. The panel on which I was honored to participate addressed some effects of the pandemic on practice and process. After, an attorney confided that COVID-19 has become tiresome and the attorney was pleased to hear about the law and the practice again. This attorney lamented that we discussed COVID-19 at all.

I felt a bit like that "time travelling scientist" returned to the days of yesteryear (yes, it was only in 2019 that we were last together like this at the Forum, but it seems so long). We partook for two days the "magic cereal" of education and we "increased . . . intelligence." We, as a community, proclaimed with energy and verve that "We're Back!" And. I could not be more pleased.

There were stories. One attorney recounted how inoculations had been enjoyed early in 2021 despite being contrary to the government age constraints. Another acquaintance recounted vaccine doubts, but admitted to recently undertaking the first of a course. In yet another conversation, I heard a recounting of an attorney's client who steadfastly intends to forego inoculation altogether. Another was proud of immunity ("I had my second shot on March 19, and I am immune"); I did not have the heart to remind that vaccines do not yield immunity, but only protection.

I was amused by a conversation with one vendor/sponsor, whose company is headquartered in a galaxy far, far away (up north). It was apparently somewhat difficult to convince those at headquarters (1) that there was actually a live program in Florida this month, (2) that people were actually planning on attending, and (3) that sponsorship and attendance was worthwhile. Thus, though we in Florida find ourselves blessed to be back (or nearing), perhaps we need to remember that this return towards normal is seemingly not progressing at such a pace everywhere. 

In the end, there were a variety of perspectives expressed. One news source recently highlighted a projection that vaccine interest is waning. The author says we may soon "hit a wall." There are doubts expressed that we will reach "herd immunity" due to some reluctance. As I enjoyed the return to a live conference, that potential concerned me. With herd immunity, perhaps things could become even more normal? Without it, will we live with the remnants of this SARS-CoV-2 for years? That is troubling. But, a significant portion of our population seems destined to forego the shot. Ultimately, that should be an individual's decision. 

So, thanks to all those who answered the call to normalcy. They prepared and planned, studied and invested. They showed up in-person and proved that we can return to a modicum of normal. Thanks to the following participants, and any I may have missed, for making this program real:

Leopoldo (Leo) Garcia Jr., Forum Co-Chair - Bar Section
Stacy Hosman, Forum Co-Chair - WCCP
W. Rogers Turner, Attorney,
Matthew J. Troy, Attorney,
Karen M. Gilmartin, Attorney
Kenneth M. Hesser, Attorney,
Heather Byrer Carbone, Attorney,
Paul M. Anderson, Attorney,
Philip Augustine., Attorney,
Michael J. Winer, Attorney,
Alan D. Kalinoski, Attorney,
Hon. Frank Clark, JCC,
Michael D. Rudolph,
Andrew R. Borah, Attorney,
William H. Rogner, Attorney,
Hon. Margret G. Kerr, JCC,
Kimberly J. Syfrett, Attorney,
George A. Helm, III, Attorney,
Kelli B. Hastings, Attorney,
David E. Perloff, M.D.,
Robert J. Rodriguez, Attorney,
Hon. Walter J. Havers, Jr., JCC,
Richard J. Manno, Attorney,
Philip Augustine., Attorney,
Hon. Iliana Forte, JCC,
Jonathan E. Walker, JCC,
Christopher J. Smith, Attorney,
Hon. Thomas Hedler, JCC,
Eric M. Christiansen, Attorney,
Thomas P. Vecchio, Attorney,
Jeffrey M. Friedman, Attorney,
Joanne M. Prescott, Attorney,
Karen J. Cullen, Attorney,
Christopher L. Petruccelli, Attorney,
Paolo Longo, Jr., Attorney,
Karen M. Gilmartin, Attorney, 
Glen D. Wieland, Attorney, 
Hon. Neal P. Pitts, JCC, 
Hon. Sylvia Medina-Shore, JCC,
Hon. Jacquelyn L. Newman, JCC,
Hon. Erik B. Grindal, JCC, 

Thursday, April 15, 2021

GPS Surveillance Evidence

A 2020 decision by the Florida First District Court reminds us of various realities in our modern world. Bailey v. State of FloridaNo. 1D18-4514, 45 Fla. L. Weekly D2559 (Fla. 1st DCA 2020). The trial there resulted in conviction "for first-degree murder, armed robbery, and possession of a firearm by a convicted felon." It is an intriguing look into the process of police investigations, but more so into the way technology implies itself into our lives.

Surveillance video from a hotel established the victim and defendant had departed together, but the defendant returned alone. The defendant's girlfriend testified that she periodically allowed him to use her vehicle. Coincidentally, on the night of the murder, she reported her car stolen and the next day used a "GPS tracker," of which she was aware, to locate the vehicle. The police later obtained these vehicle tracking records without a subpoena and used them to demonstrate the car had been in the area in which the victim's body was found. 


In particular, the vehicle was at a specific home early the morning when the victim was found. Police visited that home and were given surveillance camera footage with that homeowner's consent. This demonstrated defendant's presence at that home. A warrant was then issued allowing for search of the home revealing clothing the defendant wore the night of the murder. A warrant for the defendant's cell phone records produced electronic records that "matched the timeline of the GPS (car) records."


The appeal centers on the appellant's contention that the "GPS records" regarding the vehicle should be excluded from evidence (as well as the warrants thereafter for the home and cell phone records, referred to as "the fruits thereof"). The trial court focused upon the ownership of the vehicle, concluding that as it was not defendant's car, he "had no expectation of privacy." The appellate court focused upon this expectation of privacy argument. 


The Court explained that the privacy argument in this context is founded upon the Fourth Amendment to the United States Constitution. This precludes "unreasonable" searches. Such searches, conducted "without prior approval by judge or magistrate, are per se unreasonable." However, there are exceptions. The Court also explained the origins of the Fourth Amendment, and its "redefinition" in 1967 that "expanded the protections." Thereafter, the standard has become "the ‘reasonable expectation of privacy’ test."


If one feels somewhat unclear on the legal standard, the First District seems sympathetic, characterizing the standard as suffering from "murkiness of its application." In part, that seems intertwined with the technological (r)evolution through which we have recently lived. Despite the modern "subtler and more far-reaching means of invading privacy," the courts nonetheless strive "to ensure that the progress of science does not erode Fourth Amendment protections.” 


Thus, the analysis has evolved into two potentials for challenge: physical intrusion of the government and intrusion where "a person possesses a reasonable expectation of privacy." To prevail on this second potential the defendant must show:
he/she "sought to preserve the information in question as private," and "exhibit(ed) an actual, subjective expectation of privacy," and this "expectation is one which society recognizes as objectively reasonable."
Whether a person allows information to be revealed may be relevant in determining this expectation, however, the Court explains this is not "a mechanical" analysis. The context and expectation are critical. 


The Court turned to the specifics of the allegations in Bailey, and Supreme Court precedent in which a tracking device placed upon a vehicle was a "trespass" and thus its yield deemed inadmissible. There were conclusions in that analysis (Jones, 565 U.S. at 430,) that hinge on the duration of such surveillance, and whether it might be characterized as "long term" or "short term." Essentially, the distinction there lies in what might be demonstrated by repeated visits to a particular venue as compared to a singular instance. 


The court here affirmed the trial court's decision not to suppress the GPS data. It noted that the evidence in this instance was "business records that might incidentally reveal location information." There is also explanation of the distinction between tracking related to a cell phone (which "the overwhelming majority of individuals more or less must own") and how that is "distinguished from cars, which contrarily have “little capacity for escaping public scrutiny.”). In effect, vehicle GPS data is less subject to privacy concerns than cell phone GPS. This seems to be a reasonably general conclusion.
In summary, the Court noted 

"The fact remains that Appellant chose to operate a car on public roads - a car owned by another who consented to GPS tracking. The police played no role in the recording of the information and simply availed themselves of the advantages afforded by the (existing) electronic recording. Under these circumstances, any expectation of privacy on Appellant's part was not objectively reasonable."

The Court panel was unanimous in affirming the trial court. However, one judge wrote a special concurrence to express a different foundation for affirmance, the "good faith exception." Here, an interesting analysis is provided regarding the timing of the murder investigation (before Carpenter v. United States was decided by the Court - expectation of privacy regarding cell phone information). More interesting, however, is the explanation that the vehicle in question had been "reported stolen to police," and that the police efforts to use the GPS with "the owner's apparent consent," was consistent with locating the car. The use was an "objectively reasonable response of law enforcement."


This analysis regards a criminal case, suppression of evidence, and constitutional rights. But, the analysis is pertinent to the broader world of litigation, including workers' compensation. The points to take away are that appellate decisions, even from the United States Supreme Court may present parameters and considerations that are not contained or defined by "bright lines." What is or is not reasonable in the context of privacy may be a similar trial proceeding determination to any issue requiring reasonableness. There is nuance and distinction in litigation, and therefore there will likely be facts that are pertinent in most disputes, subject to the interpretation of the trial judge. 


In this decision, there are two examples of thought processes through difficult precedents. There is discussion and edification of the role of trial court and appellate review. There is discussion of how the concept of law struggles with the inescapable fact that our world is evolving and that technology may periodically create as many questions as it resolves. And, finally, there is reminder that a there are factual distinctions that require analysis, such as people's affinity for and dedication to their cell phones compared to their ability and willingness to park their car and walk away. The analysis of that distinction in terms of privacy and expectations is fascinating.



 

Tuesday, April 13, 2021

Statutory Interpretation in Colorado


The central issue focused upon the assignment of an impairment rating by the  treating physician. The Court recognized that the American Medical Association Guides to the Evaluation of Permanent Impairment have been in use for years, and that reference to various editions of those Guides may result in various impairment ratings for the same malady and complaints. It is somewhat intriguing as consistency is one of the overarching goals of the Guides. 

The Court explained that the inconsistencies between various Editions result from “emphasis of certain areas," and as "a reflection of the latest consensus in medical science within its subject matter.” The Court noted that the Colorado statute "mentions" the Third Edition, which was published in 1988. Colorado's court concluded that the statute states that "impairment rating guidelines ... shall be based on the revised third edition of the [Guides] in effect as of July 1, 1991" (when the statute was enacted). 

This form of adoptive language is a contrast to the language used in states such as Pennsylvania and New Mexico. See Pennsylvania High Court Magnifies Protz (June 2017) and As Florida Waits, Commonwealth Court Holds Pennsylvania Statute Unconstitutional (September 2015) and Will the New Guides be Lost in Translation (January 2021). States continue to struggle with the use of impairment guides, while ignoring the fundamental issue.

At the core of this issue is an admission that impairment and disability are two distinct constructs. Impairment is a measure of bodily system function. It is focused upon what an injury, or the residual of an injury, effects in terms of bodily function loss. That is distinct from whether a person with such an impairment can or cannot perform a (or any) occupation or job. I recently sat with two workers' compensation scholars for a discussion of comparative law among Florida, California, and Texas. The engaging conversation included highlights of how our three largest states have had different approaches to such Guides. There are intriguing differences in state approaches. 
  
Colorado's issue in Fisher Focused upon the legislature's intention when it adopted those Third Edition requirements (or "mentions" them as the Court phrased it). The statute says that impairment “shall be based on the revised third edition.” The Court struggled a bit with what that sentence means. Essentially holding that the plain language of that sentence is unclear, the Court concluded that this language does not mean that the Guides must be used. When a statute is clear and unambiguous, courts' analysis should end with the plain meaning. When there is ambiguity, however, the analysis should continue. 

The question arose because the treating physician assigned a 13% impairment rating, which was contested by the injured worker. The worker contested the physician's use of a method called "normalizing the impairment," which the worker contended was a departure from the method described by the AMA Guides Third Edition. The worker asserted that as the method departed from the Guides, it was inconsistent with the statutory requirement ("shall").

The “normalization” was described as the physician comparing range of motion (the movement ability) in the patient/worker's injured joint (left knee) with the range of motion in his other (uninjured) knee. In this manner, the physician is not comparing the actual result in the injured knee to some overall population studied by the authors of the Guides, but to the more focused example afforded by this particular patient. The treating physician essentially concluded that "normal" range of motion for this particular patient was less than "normal" in the large sample relied upon by the Guides. The physician therefore reduced the impairment rating for the injured knee to reflect the injury's effect upon that personal normal.

The practice of "normalization," the Court noted, is not the creation of the treating physician. It quoted from a state publication, the Desk Aid, that identifies and describes the process. The publication asserts that such a practice "may be 'a better representation of the patient's pre-injury state than ... [the] population norms.'” There is also criticism of the methodology of the Third Edition as compared to the discussion of "normalization" found in the Fifth Edition. 

The Court concluded that the statute which says the impairment "shall" be based upon the Third Edition does not "bar the physician from employing the process of normalization. " The Court focused not upon the "shall," but instead upon the "based.” That word, it concluded, "is critical to interpret(ation)." The word, it explained, "as a verb" means "“to find a foundation or basis for: to find a base for” and “to make, form, or serve as a base for.” (Citing the dictionary). As a noun, the Court noted multiple definitions including "a main ingredient”; “a first or bottom layer of something on which other elements are added”; “the fundamental part of something”; and “the starting point or line for an action or undertaking.” 

Therefore, the Court concluded, the legislature's intent in enacting the Colorado statute was that the Third Edition is to be "the starting point, not the exclusive fount, of impairment rating methodology." Had the legislature intended more limited reliance only upon the Third Edition, it would have used more concise language than "based on,” such as perhaps the word "only.” The Court noted that Kansas has reached "the same conclusion" regarding "based on" earlier in 2021. 

The injured worker raised interesting arguments about the State's adoption of the Desk Aid. He contended that this was essentially adoption of a regulation or the promulgation of a law. The Court conceded that it might be so if doctors were required to follow the Desk Aid or if it had been created or adopted using the "rule-making process of the Administrative Procedure Act." However, the Court concluded that this publication does not  "require doctors" to use the Desk Aid, or to depart from the Third Edition. The Court found no support that the State "intended it to serve as a rule that would mandate a particular result in all cases."

Alternatively, the Court explained, even if the Desk Aid is a rule, it is not an inappropriate rule. Rather, it is a guide or interpretation that does not mandate an outcome. Therefore, it is "an 'interpretive rule' . . .  which is not subject to the formal rule-making process." Finally, the Court noted that whether a physician has appropriately "applied the Guides" is a question of fact in any case. Therefore, the trial judge's determination in a particular case should be affirmed if it is "supported by substantial evidence." Thus, the chance of a worker to challenge a physician's impairment assignment is essentially limited to the trial process rather than appellate process in most instances. 





Sunday, April 11, 2021

The Time has Come, the Time is Now

The title of this post is a quote from "Marvin K. Money will you Please go Now," by Theodor Geisel (also known as Dr. Seuss). 

The protagonist in Groundhog Day (1993), Phil Connors (Bill Murray), noted that "When Chekhov saw the long winter, he saw a winter bleak and dark and bereft of hope." That quote returned to me as I read the sobering news recently of addiction and worse in the time of COVID-19. It has been a long winter indeed. Certainly, there is much for us to celebrate in the spring of 2021, see The Future's so Bright (February 2021) and A Great Hamburger with a Smile (April 2021).  

For much of the last year, there have been prognostications that COVID-19 could result in personal and societal issues beyond the immediate scope of infection and treatment. ABC News reminded last year of concerns regarding "suicides, drug overdoses and domestic violence." There were those who raised concerns about mental health repeatedly throughout our recent isolation and constraint secondary to COVID-19. I say "our" but some of us were fortunate to weather the year in a relatively open and free Florida. I cannot imagine the stress of living in those more constricted states, territories, or countries often featured in the news. 

I heard from people in response to the Great Hamburger. They assure me that the lockdowns, isolation, masks, and other challenges are not over everywhere. Some expressed envy that Florida's economy is running wide-open and lamented their own local inability elsewhere to enjoy dining out, retail shopping, and other social interactions. But, in short, we will all eventually put COVID-19 behind us. It is not yet, by any means, over everywhere. I feel for you if you remain masked, locked-down, and unvaccinated. Hopefully, however, we can each see signs of hope and improvement.

I have focused on overdose death before. In January 2017 I posted Like a Broken Record regarding overdose deaths. I lamented that the American death rate was an excruciating 55,403 in 2015. I recounted the history of increasing deaths (2012 = 33,775; 2013 = 37,542; 2014 = 42,225). The Center for Disease Control reports that "Nearly 841,000 people have died since 1999 from a drug overdose." In 2019, the rate of overdose death was 70,630, double the number in 2012. The situation, it seems, has not been improving.

Statnews reported in February 2021 that in the "12-month period ending" June 2020 there were 81,003 deaths from overdose. It says that reflects "a 20% increase and the highest number of fatal overdoses ever recorded in the U.S. in a single year." The Commonwealth Fund report is more dire still. It says that "September 2019 through August 2020" recorded 88,295 predicted deaths." It notes this is "a record high," perhaps when the final figures confirm this prediction it will be about "27% (higher) than the prior 12-month period."

The drug overdose situation, it seems, is getting worse. As a nation, we near one million overdose deaths since 1999. It is entirely likely that we will reach one million by the time we are 25 years into this still new century, 2024. At our current pace, with it nearing 100,000 annually, it is almost a certainty. And, if that rate continues, the path to the second million deaths of this millennium will be shorter still. 

In February 2021, we collectively lamented that the SARS-CoV-2 coronavirus, COVID-19, had killed over 500,000 Americans. Flags were ordered to half-mast. We were encouraged to remember the suffering and death wrought upon us by this virus. I do not suggest in any way that we should not acknowledge and mourn those losses. However, it seems that we remain inclined, societally and individually, to ignore or overlook that we lose so many Americans to overdose. 

Will recognition and flag lowering occur when we hit 100,000 per year? 150,000? At what point will we decide that society cannot endure the loss of these people, these thousands of people, each year? Why is there not similar focus on this killer? Why is there no massive education and research focused upon stopping it? Why do we not collectively focus on somehow saving these people? After flooding our conscious and communities with Narcan to treat overdose, the deaths continue and are accelerating. Perhaps more attention and imagination is needed?

But, the worse news is that overdose has been exacerbated in the last year. One of the more dire consequences of our governments' COVID reactions appears to be the impact on our mental health and stability. StatNews reports that "drug deaths started spiking last spring." There are those who are attributing the increase to the pandemic. They note that it "has ushered in stress, isolation, and economic upheaval — all known triggers for addiction and relapse." There are, more simply stated, stressors that result from a pandemic.

And, perhaps more so, there are stressors that are created in the response to a pandemic? The pandemic did not shut down a single economy in 2020. Shut down was a government response to illness and threat of infection. What if the scientists had not advised us against wearing masks last spring? See Anger and Acting Out. Might our outcome have been different without the massive work stoppage, economic impact, and sequela?

Lamentably, we will now study the impacts and results of those government efforts. Academics and researchers will spend coming years pouring over data and writing to describe the impacts that this virus has had on mental health, addiction, and some say violence, suicide, and more. Last spring, I read a piece that predicted there would be mental health impacts of this pandemic. Last spring, when many of us predicted a return to normal within months. Last spring, when our history and experience with pandemic in America was very limited. Last spring some predicted a coming storm. 

Last Spring, I authored Stress in the Time of COVID (March 2020). I suggested that we remain vigilant, and offered some unscientific and untrained advice on dealing with stress. I suggested that there was a need for us to remain cognizant of the needs, emotions, and challenges of those around us. I have spent much of the last year striving to remind people that we have all faced challenges and have struggled. 

I was encouraged to that view, in part, by articles written by others. One, by Pew (no, not the RxProfessor, the other Pew) was an early predictor of potential challenges. On May 12, 2020, Christine Vestal wrote "Fear, Isolation, Depression: The Mental Health Fallout of a Worldwide Pandemic," and America had only entered what Chekhov might foretell as a coming long winter. She warned that there would be "emotional trauma." She warned it would be "long lasting." She noted that in May 2020 "more than 4 in 10 Americans say that stress related to the pandemic has had a negative impact on their mental health." That is 40% to you and me. That is like 131 million of us.  That was a year ago, light years ago. 

There has been a somewhat related discussion also of suicide. There were predictions during 2020 that the pandemic, stress, and challenges could lead to increased suicide rates. There were some reports of "spikes" in rates, and prognostication of pandemic implications. The Washington Post recently noted conclusions of increased suicide rates expressed by national leaders, but says the current data does not necessarily support that American suicide increased last year.

The outcome of that discussion seems to be uncertainty for now. The author suggests that after further study, with the passage of time and investment of research, some might eventually conclude that suicide attempts in 2020 were influenced by COVID-19 implications. It also notes overdose in a broader context than the deaths noted above. It reports an "almost doubling" of calls for help regarding overdose in 2020. It suggests that some of those, or some of the currently categorized "unintentional injuries" may end up categorized instead as suicide.

Note that. Hidden in that discussion of suicide, is an overdose fact worthy of reiteration and our careful attention: calls for help regarding overdose almost doubled in 2020. Drugs are a problem. As regards the surfing fad of the 1960s, the Beach Boys noted in "Surfin' Safari" (1962) "I tell you surfin's mighty wild, It's getting bigger every day." I would suggest that opioids, drug overdose and related societal challenges are likewise "getting bigger ever day."

It is lamentable that so many faced overdose challenges last year, and that so many died. It is more lamentable that we now approach a million dead since the turn of the century and the trend shows no sign of relenting. Not to be a broken record, but I ask yet again, how many will be enough? I suggest, again, that the time has come for action and progress in our fight against drugs, overdose, and avoidable deaths. 




Wednesday, April 7, 2021

Skittles for the Community

After writing the following, I was reminded of a lyric from Karn Evil First Impression, Part Two (1973), by Emerson, Lake, and Palmer: "Welcome back my friends to the show that never ends." 

There has been a great deal written about pill mills and the distribution of opioids in America. See The Hot Seat, Opioids, Marijuana and More (September 2017); Florida's 2018 Session - Opioids (March 2018)(including a list of all the prior opioid posts dating back to 2013). America has been fighting opioid addiction for decades, and though there have been victories the challenges remain. 

A November 2020 press release from the United States Attorney in New York announced the filing of charges against a New York physician and his employee. It stresses that these are only charges or allegations and that everyone involved is presumed innocent. The physician operated a clinic for pain management in Manhattan. It is alleged that he accepted "cash payments" for writing "thousands of prescriptions for large quantities of oxycodone." Furthermore, the authorities allege that those scripts were for individuals that the doctor "knew did not need the pills for any legitimate medical purpose." This, the release states, demonstrates the doctor "betrayed his profession."

The process that authorities have alleged is not unfamiliar. We have all heard of and lamented the "pill mill" practice that exploded over the first decades of the twenty-first century. The authorities claim that clinic patients in this instance referred and recruited new patients to the clinic. The recruiters are labelled "gatekeeper patients" and one of those at this clinic was allegedly later hired to participate in "managing the (clinic) operations." The authorities allege that the clinic was open "only a few hours per day," perhaps only between "2:00 p.m. and 5:00 p.m." Despite these allegedly limited hours, it is alleged that the doctor ran a "grotesquely lucrative pill mill."

The authorities allege that oxycodone prescriptions were written for patients that the physician "knew did not need the pills," and that many of those patients "were addicted to opioids," "failed drug test administered by the clinic," and some "traveled long distances to obtain the illicit oxycodone."  They allege that some patients "sold oxycodone pills on the street to drug users."  

In about three years, between "November 2017 and in or about September 2020" the authorities allege that the physician "prescribed more than 1.3 million oxycodone pills," "generally . . . after conducting limited or no examination of the patient."

The magnitude of this struck my interest. One way to appreciate this is by discussing the sheer pill volume. Between November 1, 2017 and September 30, 2020 there were 1,066 days; without Saturdays and Sundays there were 761 days; removing the federal holidays, leaves 732 days. the 1.3 million pills divided by 732 days yields 1,776 pills per day; at the three hours per day the clinic was allegedly open, that is 591 pills per hour, or about 10 pills per minute. 

That is an incredible volume of pills. One study suggests that patient consumption of such pills is about three pills daily, so a thirty day supply might be 90 pills. The 591 each hour might represent 7 patients per hour receiving a 30 day supply.  Statistics support that doctors average about 20 patients per 8 hour day (2-3 per hour). The physician in New York was perhaps prescribing enough Oxy to suggest a much higher patient-per-hour ratio or prescriptions for more than a 30 day supply. 

Another way to appreciate the magnitude might be financially. Addiction Center reports that Oxycodone has a prescription price (without insurance) of $.33 per pill, but the "street price" is $20.00 each. The "street value" of the pills dispensed according to the allegations in this case equate to a total of $26,000,000. That is a significant mark-up that could be profitable even after costs such as travel and doctor fees are considered. Profitable, that is, to those who might visit such a clinic, obtain these medications, and then resell them elsewhere rather than consume them in palliation of symptoms or complaints.

Based on these allegations, the U.S. Attorney has charged the physician and the clinic manager "each with one count of conspiracy to distribute oxycodone illegally. The allegations are that over one million pills were involved over the course of hundreds of days of clinic operation. The allegation is of "thousands of medically unnecessary opioid prescriptions." And yet, each is charged "with one count of conspiracy." It is worth considering that the charges could result in "a maximum sentence of 20 years in prison," which the press release stresses remains discretionary, to "be determined by the judge." One may wonder whether it would be more productive to pursue multiple charges against those who engage in such activity thousands of times?

An FBI official quoted in the press release contends that pill distribution such as this is detrimental to communities, to those "struggling to overcome (the) addiction," and is "an offense against all of society." The import of those comments seems critical of these two defendants, but more a broad indictment of the type of behavior alleged. That such activity may occur, the release noted such a "greed-fueled" and "callous" "scheme" places "an immense burden on communities." The significance they state is, however, perhaps undermined by the filing of only one criminal count against each despite the implication of millions of pills and dollars?

As noted, these kind of drug distribution allegations are not new. There are reports of prescription medications dispersing into communities, from person to person. Years ago, I heard a presentation in which a police officer referred to the manner in which students in his community shared illicit drugs; he referred to gatherings as "skittle parties," a label I have seen repeated in various publications. And yet, in 2021, we continue to see news about the operation of clinics in a manner described above. One wonders why it is so difficult to identify and deter such "grotesquely lucrative" activity and its "immense burden on communities?"

Drugs like this do not come from back alleys or illicit producers. These are manufactured by pharmaceutical companies, distributed through pharmacies, and prescribed by doctors. The medical profession is highly regulated, as is the distribution of medication. And yet, we persistently see these stories about fantastic numbers over long periods. It seems that statistically spotting such "medical practices" would be reasonably simple? How do these volumes rise into the millions of pills over hundreds of days? There is no debating the existence of a problem, or its seriousness. 

Despite that, here we are in the third decade of the new century facing the same old problem of prescription opioids and "grotesquely lucrative pill mill(s)." One wonders whether it will ever end, and perhaps whether society really cares enough about it to want it to end? The lyrics from Karn Evil return us to reality with the refrain "right before your eyes, we pull laughter from the skies; and he laughs until he cries, then he dies, then he dies." How many Americans have to die from the opioids being distributed? How many is enough?




Tuesday, April 6, 2021

Bloviating Paraprosdokian

I’ve spent a fair number of hours in meetings. I remember once when an attendee made some pertinent and brief remarks (essentially "we cannot do that") and then that speaker apologized in a self-deprecating manner saying the speaker would "stop bloviating now." That one made me laugh. Miriam Webster defines "bloviating" as "to speak or write verbosely and windily.” Other dictionary's definitions are more critical of "bloviating." How does one know when they are bloviating? One might suggest that a lengthy blog post my fall in that category? But, in my experience, those who accuse themselves of bloviating are rarely the bloviators. 

The self-deprecation in this instance was a Paraprosdokian. That is a "device in which the final part of a phrase or sentence is unexpected." This is a tool that is often used to make jokes funny. The unexpected and often contrary portion at the end surprises us and makes us laugh. The "bloviating" punchline makes us laugh, or at least lightens the mood of the conversation. One of my personal favorite Paraprosdokian is "I want to die peacefully in my sleep, like my grandfather, not screaming and yelling like the passengers in his car."

But, back to bloviating.

I have sat on more than one panel at which speakers over-spoke their time. I have been left as the last speaker with ten minutes or less of a 50-60 minute lecture. In each instance, I have striven to make the most of the very few minutes left to me by my fellow panelists. Brevity is not in my nature, but the clock waits for no one. When this happens, one hopes to deliver something of value. However, it is difficult in such a scenario to focus upon anything but the limited time remaining on the clock. 

I once sat in the audience for a memorable presentation. I was enjoying a succession of individuals presenting short personal perspectives on a unified theme (more on that later). There were to be 6 speakers in a 50 minute time (about 8 minutes each if no introductions or questions; more like 6 minutes each actually allotted). During the course of the first three speaking, another of the presenters appeared late for the program, and quietly took a seat. 

When this speakers turn came, with about 30 minutes remaining for her/his portion and then the last two speakers, this speaker explained that her/his busy schedule had not allowed him/her to finalize a PowerPoint for our enjoyment (unlike the other presenters). However, the speaker promised to "describe" the PowerPoint that had been intended. The speaker then proceeded to pontificate for well over 20 minutes (of the 50 minutes allotted for five speakers).

At the end of this speaker's long exposition, as the end of the hour rapidly drew nigh (about 5 minutes remaining), her/his conclusion was a blithe, “I guess we have a few more minutes, if anyone has any questions." At this time, another of the group's presenters interjected to remind that two speakers remained (which the speaker might have known in the event of a timely arrival for the program). Although those two remaining speakers then got their brief (2-3 minutes each perhaps) opportunity to share, the results of their invested effort were markedly truncated. 

And, due to the time expiring, they each likely lost a small portion of the audience who proceeded to other commitments. Fortunately, most of the audience was able to politely stay and accommodate their brief opportunity, that had been compromised through no fault of theirs.

As the protagonist, Adam, (Brendan Fraser) says in "A Blast from the Past" (1999):
”Manners are a way of showing other people we care about them.”
How do we feel about other people? Do we value their time? Is our sentiment demonstrated solely by our gracious apologies? That is, do we persistently show up late but are gracious and apologetic? Or, do we regularly show up on time and make our statement of our respect and appreciation through that action? The above leads me to some brief observations, the accuracy of which is left to the reader.

The volume of time which one will be afforded for anything is often unknown. Whether making an argument in a hearing, or speaking to a group, we may or may not know how much time will be available. What we know is that their time is as valuable as our own. What we know is that our behavior speaks volumes about our respect for our listener and fellow speakers.

In that 20-plus minute presentation, one of the lucky speakers that preceded the bloviator reminded of the potential to lose an audience with too much. In truth, as lawyers, we are hard-wired to make our point, and many will argue until someone stops them. But, that may not be the best way to convince and persuade. In my early years of practice, I recall a judge who was rumored to rule in favor of whomever spoke last. Proceedings before that judge were exhausting. The judge was cordial and accommodating, but the energy required by that competing cacophony was a serious and unnecessary challenge.

Some speaking formats recognize the reluctance of speakers to self-limit. These may provide a countdown clock, flashing lights, or even an interceding moderator to enforce time limits on those who cannot self-regulate. It is a rare lawyer I find that has never been told "enough" by some judge somewhere. Ironically, the bloviator discussed above had the benefit of a timekeeper showing signs. They were, unfortunately, ineffective. 

Notably, it is a challenge to both "have enough" material and yet know when to stop and sit down. I learned from an exceptional mentor to try to put more in the PowerPoint than will be needed; he explained that I could always  finish with "I have run out of time, there is more in the printed material that you can review later." With that safety net, perhaps we are more comfortable stopping when the time comes? That can likewise work with "the brief," or "the motion." Expound in the writing, then keep the oral presentation focused, brief, and relevant. But, this only works if you file the motion, file the brief, prepare the PowerPoint.

On the other side, when we witness boorish behavior, is there more that we can do? Perhaps the greatest kindness, when someone’s opportunity gets pushed to the final minute(s), is to remain in the audience and accommodate their discomfort? Or, should we in the audience be the ones to rise and suggest to someone that they are running long, bloviating, or boorish?

In the end, let me deliver the punchline to the 20-plus minute oratory described above. Coincidently, the overarching theme of this presentation was essentially on effective communication. It was focused in part on on the need for lawyers to be brief, focused, and concise. If that is not a Paraprosdokian, I doubt I know what is. I wonder if the irony was lost on anyone in the room? I suspect, unfortunately, it was lost on the bloviator. 

As I later reflected on the presentation, I was drawn to an essay I read in an advertisement in my youth. You see, in the deep past, we mashed trees into something called "paper" and thoughts were printed thereon and delivered to your home. We called it a "newspaper," which the Internet of course rendered obsolete. This author (I believe an official with a company called United Technologies) wrote:

"Overstate and bore. Understate and score," and then provided examples. Perhaps we might yet all learn from that expression of opinion? Below is that ad pasted in whole. No part of that is this author's writing, but is quoted verbatim:
When is the Best Time to Stop Talking?

Probably now.

A story is told about FDR when he was a young lawyer.

He heard his opponent summarize a case before the jury in an eloquent, emotional, but lengthy appeal.

Sensing the jury was restless, FDR is reported to have said, “You have heard the evidence. You have also listened to a brilliant orator. If you believe him, and disbelieve the evidence, you will decide in his favor. That’s all I have to say.”

He won.

Overstate and bore. Understate and score.

When a baseball umpire says, “Strike three!”
he doesn’t have to add, “Yer out.”
That’s what strike three means.