a cooling cap for cancer patients

This is another post not related to a legal case, but it is related to cancer, a subject very close to my heart. MSNBC.com reported today on US studies on letting cancer patients undergoing chemotherapy wear cold caps in an effort to keep their hair. See http://www.msnbc.msn.com/id/40718154/ns/health-womens_health/

The cap works by cooling the scalp to constrict the vessels and limit the amount of chemotherapy the cells can absorb. It is genius. I think this is an amazing step forward in patient-care. When my mom was sick, she did not want to look sick -- here was a woman who never wore makeup, never painted her nails, and usually wore the same clothes day in and day out. She didn't want to lose her hair. She didn't want to be bald and have that "sick" look. We all know what it is -- as soon as you see someone without hair or with a scarf on her head or always wearing a hat, your attitude changes. For some people, it's that they don't want to look at the person because it scares them or grosses them out, for others, it's that they can't stop staring because the person looks so out of the ordinary. I know for me, I cannot look at someone who is undergoing chemotherapy without crying from the loss of my mom. In addition to how outsiders see the patient, letting a patient keep her hair helps a patient keep up the fight of her life. If you look sick, it's hard to remember being healthy; but, if you have just some touches of what you used to look like, it's a lot easier to remember and to fight to be healthy again. This cooling hat is an amazing and necessary gift in the fight against cancer.

Kudos to Southwest Airlines!

This is not a legally-related post, but . . .

This past weekend, I went to Philly to visit my fiance, and after we had been flying for quite a long time on the return trip, the pilot announced we were no longer going to Nashville, but we were landing in Dallas. The Nashville airport was down to one runway and eventually closed. Southwest Airlines did an amazing job of getting all of us Nashville-bound passengers on flights, and they covered hotel rooms for us even though it was weather-related! Moreover, when Southwest's agents booked me last night for flights this morning, they had me arriving at Nashville at 5 pm -- due to some really helpful agents in Dallas, San Antonio, and Houston (yes, I was in all three airports this morning), I got back to Nashville before 2 pm. I'm amazed~ Three Cheers for Southwest Airlines!

Poverty Issues in Nashville

Nashville, the city I love and call home, is having real issues with poverty. In his Tennessean article today, Michael Cass cites that the poverty rate in Nashville rose from 13% in 2000 to 16.9% in 2009. The poverty rate for children under age 5 is 34.4%. That is astounding -- over one-third of the children under age 5 live in poverty in Nashville, Tennessee. Between September 2009 and September 2010, the number of people receiving food stamps increased by 11.25%. In addition, over 13, 000 families in Davidson County live on an income of less than $15,000 a year. The "experts," whoever they may be, are saying this increased poverty rate are due to the economic recession (and the loss of non-knowledge-based jobs) and May's flood. The article also hints that the 33,000 foreign-born residents gained in 10 years may also be contributing to the poverty rate.

When I see these statistics, my heart hurts with the incredible loss of potential I see in Nashville. I think about the children who are waiting lists to get into Preston Taylor Ministries's after-school program. (PTM serves families living in the Preston Taylor public housing neighborhood north of Charlotte Ave.) These children want to succeed, and their parents want them to succeed, but the realistic (and fiscally-responsible) economic limits on programs like PTM leave them without help. I think about my friend who is struggling to find a job teaching English as a second language to adults (she was laid off this month), and how she could be a key to helping some of these families escape the poverty cycle. The people she meets are from Africa's war-torn countries, the Middle East, and Asia -- they have skills, they just need the language. These are courageous people who have left all they've known to come to America, the proverbial land of opportunity, and they are shoehorned into low-paying jobs because they don't know English. I think about the people who criticize TennCare programs as being too generous, and I want to introduce them to these children who literally would never see a doctor without TennCare's benefits.

When the flood hit Nashville in May, the city pulled together to help those in need. The crisis isn't over -- this city needs to continue pulling together to help the increasing number of people in financial peril and create options for success.

News Out of Alaska

Ahh, so one of my very close friends lives in Alaska, and I am always on the look out for stories about where she is. Just this past Friday, the federal government proposed listing the ringed seals found in Arctic Basin and the North Atlantic and the bearded seals in the Pacific Ocean as endangered species. The government reasons that these creatures depend on sea ice, and because of the increase of global temperatures, their habitats are disappearing. This is a huge decision, and it is one of importance for the arctic animals. Brendan Cummings, an attorney with the Center for Biological Diversity, said his client was pleased that the National Oceanic and Atmospheric Administration "is following the science and the law in recognizing the realizing of what global warming is doing to the Arctic and its species."

As a former geology student, a bleeding-heart liberal raised by an environmental scientist, and a lover of all things arctic, I am singing at this proposal, and I hope it is approved. If the ringed and bearded seals are added, then there are more avenues for bringing major environmentally-based lawsuits. We need to protect this earth.

Link and Excerpts from the Sixth Circuit Decision

OUCH! The Sixth Circuit really nails Judge Haynes:

http://www.ca6.uscourts.gov/opinions.pdf/10a0363p-06.pdf

Relevant portion of the opinion:

Defendants request that this case be reassigned to another judge. We grant the

request.

A number of aspects of this case inform our decision. First, the appearance of

justice is compromised. The district court’s view of the history of this litigation, as

outlined in the order from which defendants appeal, reflects a fundamental

misunderstanding of the import of certain key events in the case. Although the issues

raised by the motion to vacate the consent decree have nothing to do with defendants’

compliance or noncompliance with it, the district court thought it important to recount its version of the compliance history in great detail. It quotes at length from the decree itself, Judge Nixon’s 2001 order finding noncompliance, and Judge Nixon’s October

2004 order finding noncompliance. It also relies on Judge Nixon’s comments regarding

compliance in his February 2006 recusal order. Yet nowhere does the court mention that

Judge Nixon subsequently set aside the October 2004 order, that the parties jointly

requested that the order be set aside, that the findings and conclusions of that order had

been placed in jeopardy by the issues concerning ex parte communication by the court

with the special master (communication that arguably formed a basis for the order), or

that no ruling on plaintiffs’ 2004 motion for further relief has ever been made.

Additionally, the order reflects no recognition that, despite an effort at disclaimer, Judge

Nixon’s comments about compliance in the recusal order were largely a restatement of

his views expressed in the order that had been set aside. Instead, the district court’s

order simply treats the findings of the October 2004 order as unquestioned fact. The

district court also quotes at length from the report of the monitors it appointed. Although

this report has never acquired any evidentiary status in the case, has never been found

accurate, and has never been subjected to any adversarial process, and although

defendants’ objections to it remain pending, the report too is treated as unquestioned

fact. Even more seriously, the historical recitation regarding compliance is not included

merely as background. The court uses it as a part of its analysis of why plaintiffs have

privately enforceable claims under § 1396a(a)(43). For example, the court notes that

“[p]laintiffs’ outreach claims under Section 1396a(a)(43) are enforceable because more

than half of the 500,000 plus class members have been effectively denied outreach

services rendering their rights to EPSDT service worthless.” John B., 661 F. Supp.2d at

893 (M.D. Tenn. 2009). The opinion also contains a number of other inaccuracies

relating to defendants’ perceived lack of cooperation with the court, including its

references to defendants’ failure to prepare the IWP or IAP and defendants’ failure to

respond to the remedial plan prepared by the special master and attached by Judge Nixon

to the October 2004 order.

Beyond the order from which defendants now appeal, the orders issued by the

district court relating to discovery contain increasingly accusatory language directed atthe defendants. While discovery orders often require that a court make findings about a party’s cooperation or lack of cooperation during the discovery process and may

involve imposition of sanctions, such orders should issue in an atmosphere where all

parties are assured that the court has not formed preconceived opinions detrimental to

either side. The district court’s skewed view of the actual state of the record with regard

to defendants’ noncompliance with the consent decree creates an appearance that its

judgment could be flawed with respect to defendants’ compliance with discovery.

Second, the history of the case reveals an alarming lack of timely progress

toward resolving plaintiffs’ August 2004 motion for further relief and no progress at all

toward the ultimate resolution of this case filed in 1998. Defendants’ November 2006

motion to vacate the consent decree had been pending almost three years before a ruling.

Meanwhile, extensive discovery with no predictable conclusion has been ongoing, and

discovery skirmishes have consumed the district court’s time. The overall picture is one

of a case without direction or deadlines for resolution of primary issues. We are quite

aware that defense counsel have pursued a strategy of contention that contributessubstantially to the complexity of this litigation and creates challenges for the court. At the same time, complexity has in recent years also been a product of the scope of

discovery sought by plaintiffs and permitted by the district court. And responsibility for

moving a case forward lies primarily with the presiding judicial officer, rather than the

parties.

Third, we have found it necessary to intervene in the case to an unusual extent.

In June 2008, we granted a partial writ of mandamus—an extraordinary remedy required

to curb discovery extraordinary in its intrusiveness. The ruling on the motion to vacate

occurred only after another petition for writ of mandamus produced a directive to the

district court to respond as to why the writ should not be granted. And in February of

this year, we stayed all proceedings in the district court pending resolution of this appeal,

following more discovery disputes and unproductive turmoil in the district court.

In reassigning this case, we are mindful that such reassignments are rare and

should be made reluctantly. Solomon v. United States, 467 F.3d 928, 935 (6th Cir.2006). And we recognize the factors that govern whether such a request should be

granted: “(1)whether the original judge would reasonably be expected to have substantial

difficulty in putting out of his or her mind previously expressed views or findings,

(2) whether reassignment is advisable to preserve the appearance of justice, and

(3) whether reassignment would entail waste and duplication out of proportion to any

gain in preserving the appearance of fairness.” Id.

The first factor may well favor reassignment, given that the district court appears

to have held its misconceptions about the record for some time, but the second factor

quite clearly supports reassignment. And the case management difficulties we have

previously noted mean that a reassignment could hardly result in waste and duplication

that outweigh any gain. In fact, reassignment provides an opportunity to reduce waste

and move the case toward definitive resolution of the primary issues, as well as to

enhance the appearance of fairness.

We are mindful that as appellate judges, we cannot manage litigation as trial

judges do. But despite our recognition of our role, there are occasions when we must

intervene. The plaintiff class is certainly not benefitting from the pace of this litigation.

Nor are the taxpayers of the State of Tennessee, who have borne the costs of a special

master, monitors, implementation of the consent decree, attorneys’ fees for plaintiffs,

and fees and expenses of defense counsel. Public-interest concerns are present for all

parties. This situation combines serious management failures, fundamental misunderstandings that potentially prejudice defendants, and a developing adversarial relationship between the judge and the defendants. Here, the unusual decision to

reassign the case is justified.

We direct that the case be reassigned promptly to a judicial officer who can give

it the attention it requires. We are aware of a vacancy in the district court. If the need

to reassign the case within the district poses a hardship, the chief judge of the district

court may ask the chief judge of our court to make an appropriate designation. Upon

reassignment, the new judge should undertake to resolve the issues identified by this

opinion and also develop a schedule for determining any further relief to which theplaintiffs are entitled. Of necessity, the latter determination will require a review of the scope of current discovery and likely an insistence that the parties make choices about

discovery priorities in order to meet the court’s deadlines. Going forward, resolution of

key issues should govern progress in the case.

Sixth Circuit Ends the Antics of the District Judge

As I think I mentioned before, I am working with a professor at Vanderbilt on a project centered on TennCare (Tennessee's Medicaid program). We are currently writing an article we hope to have published in a law review journal. In this article, we describe the events of TennCare, from the environment before it was created to the current time. In the midst of its twenty-year history, it has been plagued by on-going lawsuits between enrollees and the State. In this morning's Tennessean (the Nashville newspaper), Anita Wadhwani, who I met several days ago, broke the news that the Sixth Circuit has ordered Judge Haynes, the local federal district judge, off of the John B. case. (see http://www.tennessean.com/article/20101203/NEWS01/12030342/TennCare+judge+ordered+off+case+over+delays++language for her article). The State brought the claim that Judge Haynes was biased against them (and the article points out that this seems to be the strategy of choice for the large law firm representing the State) in this particular lawsuit dealing with medicaid coverage for children. After review, the Sixth Circuit wrote that the "appearance of justice [has been] compromised" by Judge Haynes, in part because of the "increasingly accusatory language" he used towards the State lawyers. In addition, the order described the TennCare case as one of "unproductive turmoil" and "without direction or deadlines for resolution of primary issues." Ouch.

Strangely, Haynes is already the second judge on this case: the first judge, Judge John Nixon recused himself after State attorneys alleged he had improper communications about the case outside of the courtroom. The other two remaining judges in the Middle District of Tennessee have already cited conflicts of interest with the case, and they cannot serve as adjudicator.

From what I have learned in my research project, TennCare and all of its lawsuits are a veritable cess pool of different factions grousing and grappling for who they represent. The State has to be concerned with the big picture: all of the State's citizens, all the the State's uninsured, and the money. The Enrollees' attorneys tend to focus on the extremes of the TennCare population, and they seem to expect that money will come from somewhere. The providers seek payment for their services, and such payment has so often been lacking. The insurance companies managing the health care process are looking at keeping their companies afloat and cutting costs while also providing people with healthcare. As we point out in the article we hope to publish, the different factions are repeatedly talking past one another and reacting in knee-jerk fashion to their perceptions of what the other parties are doing. Such a method is not wise for sustainability.