Author: Elizabeth Gallo

Oklahoma judge Thad Balkman of Cleveland County ordered Johnson & Johnson and its subsidiaries to pay $572 million into a state fund to help reduce the opioid crisis in Oklahoma. This ruling was the first of its kind to make it to a final ruling. It comes as nearly 2,000 lawsuits, filed by various government authorities across all levels, are set to be heard by a federal judge in Ohio.

The order was handed down because Judge Balkman found the “opioid crisis is an imminent danger and menace to all of us”. Balkman also found that Johnson & Johnson misled consumers about both the effectiveness of their products and their addictive nature. According to Mike Hunter, Oklahoma’s Attorney General, 4,600 people died from opioid overdoses from 2007-2017.  Overall, 12,757 people died from overdoes deaths from prescription painkillers in 2018, a decrease of about 2,000 deaths from the year before. This is good news, especially when considering a report from the Center for Disease Control shows that the number of overdose related deaths will likely decrease in the future. However, opioid related deaths are on the rise, despite overall overdose related deaths falling.

This is likely just the beginning of a heavy trend that will see several other courts issue rulings of similar natures, if history is indicative. In Oklahoma, the ruling was based on the State’s public nuisance statute. It remains to be seen if that can be an effective statute to seek damages in other states. Johnson & Johnson will likely face a severe blow to their brand trust and the financial effect of that also remains to be seen.

On August 15th, Federal Judge Amy Totenberg issued a 153-page ruling saying that the “long and twisted” saga of the State’s voting systems was nearing a conclusion.

Georgia remains one of five status in the U.S. that uses touchscreen voting machines with no paper backup mechanism or record-keeping ability. However, earlier this year, Georgia ordered a new voting system with ballot-marking devices that should installed in time for the March 24th presidential primary, according to Secretary of State Braf Raffensperger.

This comes on the heels of a highly contested, and narrowly decided, gubernatorial election that saw Brian Kemp, who was at the time Georgia’s Secretary of State and in charge of the elections process, defeat democrat Stacey Abrams. There were allegations that majority democrat areas were not able to vote because of the failure of the voting machines.

The order from Judge Totenberg requires Georgia to be ready to use paper, handmarked ballots in the event that the newly purchased system would not be ready in time for March 24th. Georgia spent $106 million on the voting system. This order is not binding on the November municipal elections.

A Virginia-based 4^th U.S. Circuit Court of Appeals, sitting en banc, held that a Virginia habitual drunkard law was unconstitutionally vague. In its 8-7 opinion, the court noted the law raised concerns about violations of the Eighth Amendment of the U.S. Constitution.

Virginia’s Law

The state law makes it a crime for individuals labeled as “habitual drunkards” to consume, possess, or purchase alcohol. The law, however, fails to define what “habitual” or “drunkard” means and instead leaves the determination to the court considering whether to issue an order preventing the sale of alcoholic beverages to such an individual. Those who are convicted under the habitual drunkard law face penalties including up to one year of jail time. The Legal Aid Justice Center reports that in addition to Virginia, Utah is the only state in the union with a similar habitual drunkard law. LAJC, along with a private law firm, filed a class action suit on behalf of four plaintiffs who have been labeled as habitual drunkards and faced multiple criminal prosecutions.

Appeals Court Decision

According to the 4^th Circuit majority opinion, the Virginia law provides no guidance on defining the terms ‘habitual’ or ‘drunkard.’ Indeed, it does not state how often and how long the drinking must happen and it fails to identify how much alcohol must be consumed. As a result, the Appeals Court found the law invited arbitrary enforcement and violates the due process clause because it is unconstitutionally vague. Even if the terms were defined, the Appeals Court continued, it would raise concerns about cruel and unusual punishment and pointed to a 1962 U.S. Supreme Court case that struck down a law making addiction to narcotics a crime. Six years later, however, the SCOTUs upheld a law that criminalized public intoxication.

Challenges to Laws

There are several ways a statute or law can be challenged as unconstitutional. In a facial challenge to a statute, the plaintiff claims the legislation is unconstitutional because it violates the law as written – or on its face. In an as-applied challenge, the plaintiff alleges a particular application of the statute violates the constitution. In other words, while the statue – as written – is not unconstitutional on its face when it is applied it violates the constitution. When a court declares a law facially invalid or unconstitutional, it will strike down the law in its entirety. When a court finds a statute unconstitutional as applied, it will narrow the situations in which the law may be applied and still be constitutional and will not strike down the law.

Deposing a witness is a headache. There is coordination, fees, preparation, and numerous other things to consider. Deposing an international witness can be even worse. In addition to the standard procedures you have to undertake, there are other things to consider as well. What are the internal laws of the witness’s home country? Do you need an interpreter? Must you first submit a request through the Hague Evidence Convention?

While difficult, international depositions are by no means impossible. Proper preparation, like every other stage of litigation, is the key.

In addition, here are some helpful things to consider:

• What local laws are there where the witness is?
• Do you need a visa for you and the court reporter to perform the work in the foreign country?
• What oath requirements are there?
• Do you have to make travel arrangements for a diplomatic officer from a consulate?
• Can you compel testimony if the witness is unwilling?
• How can you reserve a location? Can this be done by video-conference?

Some countries strictly forbid pre-trial discovery, while others allow it in limited circumstances. Further, if the country is a member of the Hague Convention, that adds another layer of difficulty.

Certain processes can be used to get evidence without a deposition. Things such as letters rogatory and letters of request can be used. Thankfully, if you only need documentation, this is a much easier procedure. But, they can be time consuming and expensive.

However, you can tailor requests to your needs. It is important to talk to an expert in this area to determine what is right for your situation. Preemptively, the client should be warned that a substantial expense is forthcoming. Finally, be careful to not go on a fishing expedition.