The VLW Blog

Audio recordings of federal court hearings may soon be available from a court near you, but you can forget about that eight-cent price tag used in a recent pilot project. Downloading a digital audio file from a court session will cost $2.40 through the PACER system under the plan approved today by the U.S. Judicial Council.

Availability of court audio recordings will not be universal, either. Putting audio files online is up to the presiding judge of the court in question, according to the council’s news release. Still, downloading an audio file for $2.40 beats paying $26 for a CD version, as now available at some courts.

There is good news for casual users of PACER - they can access four times as much data without incurring fees. Previously, a PACER user was not charged unless the bill exceeded $10 for a year. Now, the Judicial Council will waive billing for charges up to $10 per quarter.

For 2009, nearly half of PACER users were not billed because their use was below the $10-a-year level. That figure would have been 75 percent if the quarterly measure were in effect, the council reports.

In another step for increased public access to court data, a pilot project will publish district court and bankruptcy opinions on the free FDsys Web page.

By Peter Vieth

When Judge Wilson ordered Abbott Laboratories to turn over selected e-mails to federal investigators looking into alleged off-label marketing of Depakote, we had to wonder - why was this high-level pharmaceutical drama playing out in Abingdon, Va.?

Abbott is based in Illinois. It sells the anti-seizure drug Depakote all around the world. The Justice Department is publicly targeting off-label drug marketing, but no such actions have previously emerged in Virginia.

Western District U.S. Attorney Tim Heaphy had the answer today - it’s a qui tam action. Apparently, a whistleblower in Virginia filed an action now being used by the feds to investigate whether Abbott improperly touted Depakote for non-approved purposes.

Heaphy said the action could be unsealed in the next couple months. “It’s in the pipeline,” he said.

By Peter Vieth

Waivers on the fee caps for attorneys who represent indigent defendants will continue after all.
The Senate budget had proposed cutting $600,000 out of this year’s budget and eliminating the $4.2 million projected for each of the next two fiscal years.

The House budget maintained those amounts, and they survived negotiations among the budget conferees and have gone to Gov. Bob McDonnell for his signature. His predecessor, Tim Kaine, had recommended keeping the waivers, while McDonnell had proposed a 15 percent cut.

The program was slow to catch on, as some attorneys resisted the paperwork and timekeeping required to get the waivers, while some judges were more reluctant than others to approve them.
Attorneys finally started submitting requests for the waivers, and if this year is any indication, $4.2 million won’t be enough to cover their annual cost.

Court officials warned earlier this year that $3 million of the $4.2 million allocated for this year already had been spent by February, so that it appeared likely that no payments would be available after May until the beginning of the next fiscal year.
By Alan Cooper

An Abingdon U.S. District Court has ordered Abbott Laboratories to turn over e-mails of current and former top executives in a government investigation of health care fraud.

Abbott is under investigation for off-label marketing of its drug Depakote, approved by the FDA in 198 for treatment of bipolar disorder, epileptic seizures and migraines. The company purportedly is marketing the drug as a treatment for agitation and aggression in the elderly.

Initially, the government subpoenaed e-mails sent or received by 13 individuals from 1996 through 2008. After Abbott protested, the government whittled its request down to e-mails of three individuals: William Dempsey, Miles White and Jeffrey Leiden.

In a March 10 order, U.S. District Judge Samuel G. Wilson said it would not be unduly burdensome for the company to produce e-mails for three out of its 72,000 employees worldwide.

Abbott already had been ordered to preserve 32,300 backup tapes for other litigation. It tried to turn that conservation effort to its advantage, arguing that the sheer magnitude of its e-document files meant it would cost too much in time and money to produce the Depakote documents.

Abbott said it would have to restore 53 backup tapes, at $750 per tape, $10,000 to “establish the back-up environment” at a rate of $240 per hour, and “anywhere from $350-$650” for each gigabyte of restored data to place it in reviewable format.

Wilson was only so sympathetic.

If retrieving the requested e-mails was as tough as Abbott suggested, “the fault lies no so much with an overly broad governmental request as it does with Abbott’s policy or practice of retaining documents” in a format that “shrouds them in practical obscurity.”
By Deborah Elkins

A West Virginia lawyer with a background in computer programming has put the rules he needs for court at this fingertips with four iPhone applications.

Robert Bailey of Charleston authored apps for the United States federal rules of procedure, the West Virginia state rules of procedure, the local federal rules for West Virginia and the Fourth Circuit and the West Virginia family law rules of procedure. According to The West Virginia Record, the apps are priced from free to $7.99.

The apps are demonstrated in a YouTube video.

We are still waiting for someone to prepare similar products for Virginia attorneys.

By Peter Vieth

A $1-million defamation suit against a leading advocate of child vaccination was dismissed yesterday by Alexandria U.S. District Judge Claude M. Hilton who ruled the physician’s statement “she lies,” in reference to an anti-vaccination advocate, was not actionable.

The lawsuit pitted two high-profile leaders in the controversy over vaccinations. The plaintiff, Barbara Arthur, is acting president of the National Vaccine Information Center and a longtime critic of mandatory childhood vaccinations. The lead defendant, Paul Offit, M.D., is a pediatric infectious disease specialist at the University of Pennsylvania.

Arthur sued over an article in Wired magazine in which Offit dismissed Arthur’s criticism with the flat statement, “She lies.” Hilton found the statement to be mere rhetorical hyperbole:

Against this contextual backdrop, the declaration “she lies” is plainly understood as an outpouring of exasperation and intellectual outrage over Plaintiff’s ability to gain traction for ideas that Defendant Offit believes are seriously misguided, and not as a literal assertion of fact.

Offit was represented  by John McGavin of Fairfax. Arthur’s counsel was Jonathan Emord of Clifton.

By Peter Vieth

Virginia Beach lawyer Claude M. Scialdone pleaded guilty yesterday to possession of cocaine.

Scialdone, 65, had disposition of the charge deferred for a year under the Virginia law that applies to first-time drug offenders.

The charge will be dismissed if he gets in no further trouble while undergoing probation and performing 100 hours of community service. His driver’s license also was restricted for a year.

In announcing the plea, Commonwealth’s Attorney Harvey L. Bryant said police found Scialdone next to his car on Indian River Road on Aug. 8 after a city resident called to report that he had seen a car drive into a ditch.

Scialdone appeared to be drunk and was charged with drunken driving, reckless driving and refusing to take a blood or breath test. After he was arrested, police found cocaine in his pants pocket.
He had pleaded guilty earlier to DUI and was given a suspended jail term and fined $250 for that offense.

Virginia Beach Circuit Judge Patricia West cited Scialdone for summary contempt of court in July 2006 because she believed he had falsified a document he attempted to submit in a criminal case. The Supreme Court of Virginia reversed the citation last month because the circumstances required a hearing before Scialdone could be convicted of contempt.
By Alan Cooper

While standing by his contention that he lacks the authority to ban employment discrimination on the basis of sexual orientation as a matter of overall state policy, Gov. Bob McDonnell made it clear this afternoon that he will not tolerate such discrimination in the state’s executive branch.

“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United State Constitution,” he said in Exeutive Directive 1.

“Therefore discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.”

The second clause is important because sexual orientation is not a status protected from discrimination in the Human Rights Act.

“I hereby direct that the hiring, promotion, compensation treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance…,” he said.

“Civility, fair treatment, and mutual respect shall be the standard of conduct expected in state government.”

By Alan Cooper

The General Assembly unanimously elected former attorney general and legislator William C. Mims this afternoon to the Supreme Court of Virginia, effective April 1.

The election was a foregone conclusion after his appearance Monday before the House and Senate Courts of Justice Committees as the only candidate for the position. Our report on that appearance and background on Mims is here.

Mims will replace Justice Barbara Milano Keenan, who was to be sworn in today as a judge of the 4th U.S. Circuit Court of Appeals after President Obama signed her commission yesterday.

The General Assembly reappointed three other judges this afternoon: Franklin Circuit Judge William N. Alexander II and 27th General District Judges Edward M. Turner III and Randall J. Duncan.

Alexander’s appointment had been held up because of questions about his handling of a special grand jury investigation of Franklin Sheriff Ewell Hunt. Alexander attempted to defuse criticism with a letter saying that, on reflection, he should have recused himself from any involvement with the grand jury.

Turner ran into questions about his membership in the New River Land Trust, a conservation organization. Members were concerned about the propriety of correspondence that listed him as a member of the organization’s board of directors.

Turner said no correspondence with this name on it had been used to solicit money by the organization, and he indicated that he would withdraw from it if legislators thought his membership created a problem.

No one suggested any impropriety on the part of Duncan, but he apparently was caught up in muscle flexing between senators and delegates and Democrats and Republicans.

By Alan Cooper

A Richmond federal jury has awarded family law practitioner Terry Batzli damages in his suit against his legal malpractice carrier.

A client complained about an alleged drafting error in a settlement agreement and sued Batzli for malpractice. Batzli notified his carrier, Minnesota Lawyers Mutual Insurance Company.

MLM said the notice of claim came too late, and filed a dec action in Richmond U.S. District Court, saying Batzli had knowledge of sufficient facts that could have supported a claim more than two years prior to the date of notice to MLM.

Batzli counterclaimed for breach of contract and took his claim for damages to a jury.

On March 2, the jury found in favor of Batzli and his firm and awarded $8,400 in damages.
By Deborah Elkins