Key Attorney in NYS Anti-Tenure Case Was Defender of Maker of Flesh-Eating Drug Whose Maker Benefited in Supreme Court Case

Why this case mattered for U.S. health policy & What it represents for the litigants' anti-tenure fight - Democrat-Republican cooperation

Jay Lefkowitz, the lead attorney in ex-journalist Campbell Brown's Vergara-like anti-New York teacher tenure lawsuit, was the lead attorney in the defense of a drug manufacturer in a case that stemmed from a drug's incomplete labeling. The Supreme Court ruled for the manufacturer in ''Mutual Pharmaceutical Company, Inc. v. Bartlett'' on the basis of federal preemption. As press coverage around the a Samuel Alito-written 5-4 Supreme Court decision in 2013 indicated, in the Whiteout Press blog, "Supreme Court rules Drug Companies exempt from Lawsuits,"

Karen Bartlett sued Mutual Pharma in New Hampshire state court, arguing that the drug company included no warning about the possible side effect. A court agreed and awarded her $21 million. The FDA went on to force both Mutual, as well as the original drug manufacturer Merck & Co., to include the side effect on the two drugs’ warning labels going forward. 

Now [2013], nine years after the tragedy began, the US Supreme Court overturned the state court’s verdict and award. Justices cited the fact that all generic drugs and their manufacturers, some 80% of all drugs consumed in the United States, are exempt from liability for side effects, mislabeling or virtually any other negative reactions caused by their drugs. In short, the Court ruled that the FDA has ultimate authority over pharmaceuticals in the US. And if the FDA says a drug is safe, that takes precedent over actual facts, real victims and any and all adverse reactions.

Karen Bartlett, after and before she took Mutual
Pharmaceutical's Sulindac. StudentsFirstNY's Jay
Lefkowitz (&Mutual's lawyer) stands by bad FDA doctors.

Bartlett suffered from the side effect of the flesh-eating disease toxic epidermal necrolysis after taking the anti-inflammatory medication Sulindac manufactured by Mutual Pharmaceutical. She lost 60 percent of her skin, suffered lung and esophageal damage and became legally blind as her body reacted to the drug. (This is the generic form of the drug Clinoril.) She became physically disfigured over most of her body, with skin peeling off as in a third-degree burn.

As noted at the above blog, the drug maker concealed the potential side-effect but later had to disclose this in warnings. "But the highest court in the land ruled that the victim had no legal grounds to sue the corporation because its drugs are exempt from lawsuits." As the Whiteout Press blog noted, "as Karen Bartlett can now attest, it [the Court's decision] leaves 240 million Americans unprotected from the deadly and torturous side effects of pharmaceutical drugs." Michael Carome, director of Public Citizen's Public Health Research Group, said, "Today's court decision provides a disincentive for generic makers of drugs to monitor safety of their products and to make sure that they have a surveillance system in place to detect adverse events that pose a threat to patients." For other references on this under-reported story, read here and New York Times coverage here.

A pro-business, anti-consumer Supreme Court
The trial law firm, Tomasik, Kotin and Kasserman, aptly wrote of the decision under the title, "U.S. Supreme Court Quietly Limits Rights of Victims" on their site,

In a lengthy dissenting opinion, Justice Sonia Sotomayor said that this decision was a disturbing expansion of the concept of “impossibility preemption”. [Read here and here on this concept.] Traditionally, impossibility preemption exists when one government system requires something that another system prohibits. Here, the Court is expanding it to allow federal premarket review procedures to preempt state common law remedies. 

In addition to the absurdity of generic drug manufacturers having immunity from liability when their brand name counterparts may not, this decision is particularly alarming since generic drugs now account for more than 80% of all prescriptions. 

What’s the larger lesson from this decision? Well, despite the fact that rulings from this Supreme Court related to the Affordable Care Act and DOMA might lead some to conclude that the Court’s current balance is rather moderate, rulings such as this one which further infringe on victim’s rights, simply confirms that this Court is increasing pro-business and anti-consumer.

From Justice Stephen Breyer's four page dissent:

“Without giving [FDA’s] views special weight, I would conclude that it is not impossible for petitioner to comply with both state and federal regulatory schemes and that the federal regulatory scheme does not pre-empt state common law (read as potentially requiring petitioner to pay damages or leave the market).

From Justice Sonia Sotomayor's 26 page dissent:

“Today, the Court unnecessarily and unwisely extends its holding in Mensing to pre-empt New Hampshire’s law governing design-defects with respect to generic drugs. . . . If our established pre-emption principles were properly applied in this case, and if New Hampshire law were correctly construed, then federal law would pose no barrier to Karen Bartlett’s recovery.”

Bi-partisan political bedfellows: Boies and Lefkowitz
With the legal team behind the legal challenge to tenure, we see a liberal - conservative, Democratic and Republican alliance, as Democrat David Boies who represented Al Gore in Bush v. Gore and helped overturn California's ban on same-sex marriages and Republican Jay Lefkowitz, a defender of corporations in some of their most egregious actions. (Boies also sits on the board of Michelle Rhee's StudentsFirstNY. Lefkowitz had sat on the general counsel of the Office of Management and Budget for George W. Bush. Elsewhere in the U.S. former Democratic White House aides Robert Gibbs and Ben LaBolt have joined to battle teachers unions.) Once again, Democrats and Republicans can align when it comes to fighting public school teachers.

Lefkowitz shows a bias for doctors, including those whose bad performance is indicated in their Food and Drug Administration decisions. His argument in the Bartlett case was that deference should be given to the FDA. He argued in the Bartlett case,

“It makes much more sense to rely on the judgments of the scientific and medical experts at the FDA, who look at drug issues for the nation at large, than those of a single state court jury that only has in front of it the terribly unfortunate circumstances of an adverse drug reaction."

So we can ask, "FDA doctors can get off the hook for their bad medicine?" Interesting, the media was virtually silent on this story last summer, save for an article in the New York Times, an article in Reuters and another in USA Today. But given a chance to go after teachers, there are thousands of stories.

California Court Vergara v. California teacher tenure decision's significance – missing history from a tragic historic moment

Cal Superior Court Judge Rolf Treu's decision in the Silicon Valley mogul David Welch engineered case, Vergara v. California (ruling here) is one more ominious siege against teachers in the reformers' national war on teachers. This bodes terribly for teachers. Privitizing operatives such as Michelle Rhee are sure to exploit this case for future campaigns.

Teachers are already under siege, with high stakes test score-based evaluations, with the Danielson Framework and other evaluation regimens, demeaning a once noble profession, with micro-managing that brings a whole new meaning to Frederick Winslow Taylor's legacy of scientific management.

This could only happen in a climate in which the leading teachers union federations, the American Federation of Teachers and the National Education Association have not spoken up against the central philosophy and assumptions of the neo-liberal or neo-conservative privatizers. Regarding the neo-liberals, note that Arne Duncan, Democratic U.S. President Barack Obama's Secretary of Education endorsed the judge's decision, enthusiastically so, as reported by the New York Times. California Democratic Congressman George Miller cheered the decision, as reported by the Washington Post. Instead, the top business union oriented teacher union leaders have only piece-meal spoken up, only too late, as in the present case.

Union leaders must cite the fundamental relationship between class and academic performance. In the face of an ongoing attack on teachers which exclusively cites the classroom teacher as the determinant of classroom performance, union leaders have been silent. They have failed to cite the literature that demonstrates a direct correlation of levels of parental income and student performance, as noted here. Growing numbers of commentators and researchers are recognizing the factor of family income as noted here.

The top union leaders have been aloof from the California case, treating it as a minor mosquito bite. They have failed to make the case to the public for why tenure is important, they have failed to, thoroughly in a pronounced public campaign, make the case that tenure is simply a means to ensure that there is due process in cases of teacher dismissal.

Silence on the history of tenure
Furthermore, the top union leaders have failed to cite the historical presidence for tenure. Indeed, the concept reaches as far back as 1158. And its modern form has its roots in early 1800s Harvard College.

No, the top teachers union leaders have not spoken up, because they have been insulated from the recent experience of working in the classroom, as the rank and file. They do not feel the insecurity and deskilling and deprofessionalization that teachers in contemporary America feel.  They, with their top two percent salaries in the mid 200,000s plus level, salaries exceeding those earned by U.S. cabinet secretaries, do not live the 98 percent experience.

Mulgrew backs Common Core / And on Common Core Architect's Tenure-Killing Mother

On the occasion of the mayor's race, United Federation of Teachers (UFT) Michael Mulgrew praises Common Core in an opinion piece in the Daily News.

This is so typical and disingenuous of Mulgrew: race to support a reform, and then gripe about the problems that many people could have easily seen before-hand. Merely wishing for the next mayor to improve Common Core implementation is insufficient.
Let teachers go back to teaching, rather than spending much of their time with multiple, repetitive and unnecessary reports. Great point, Michael, so why don't you build a mass campaign against the paperwork? Beyond the Common Core, there are many dimensions by which Race to the Top will prove onerous to teachers and district budgets. See my revised "How Mulgrew's Responsible for Disastrous NYC Teachers' Evaluation" on the deep flaws in Race to the Top and how Mulgrew signed onto New York State's RTTT application without pointing to its many deep flaws.

An interesting tidbit: Did Common Core David Coleman pick up his contempt for rank and file educators from his mother, Elizabeth Coleman? In the mid-1990s, as Bennington College president, she made national headlines, eliminating tenure, and immediately dismissing one-third of the professors. See these contemporary articles by Mark Edmundson in the New York Times, "Bennington means business" and Alice Dembner in the Boston Globe, "National professors' group calls Bennington overhaul a 'purge'".
The willy-nilly implementation of Common Core and its central place in New York City tests will result in another purge of teachers.

* * *

Common Core is a wake-up call: A tough job ahead of the next mayor
By Michael Mulgrew, Sunday, April 28, 2013, NEW YORK DAILY NEWS

A recent public relations campaign warned of tougher new state exams in New York.
Tens of thousands of New York City children opened their test booklets earlier this month to discover something very disturbing — they were being tested on things they were never taught. While children were disappointed and bewildered, their parents’ outrage at the difficulty and length of the tests has fueled a growing movement against the Common Core learning standards, on which these new tests were based.
Most teachers are supportive of Common Core, a national movement designed to foster the critical thinking and depth of knowledge many American students now lack. Yet New York State’s rush to implement the new standards, along with the Bloomberg administration’s obsession with high-stakes testing and its failure to provide a curriculum to help children meet this new challenge, have helped foster the growing opposition.
If the next mayor wants to forestall a rising tide of protests against Common Core and the more rigorous requirements that come with it, he or she needs to do three things:
-- Ensure that teachers have a coherent, detailed curriculum, along with rich learning materials, that they can use to create lessons that will prepare New York’s students to meet the new standards.
We have known for two years that these more difficult tests would start this spring. But Mayor Bloomberg and other officials put our students’ success at risk by failing to provide the curriculum, textbooks and other materials required — simply choosing to dither in the face of the approaching changes. A state curriculum website was late in coming and incomplete. The result is that teachers and principals were left to cobble together their own approaches to Common Core without sufficient guidance.
-- Admit that test prep is not real teaching and that high-stakes tests are no substitute for real learning.
The Bloomberg administration’s obsession with test scores has created an environment where nothing else counts. The school system deemphasized its department dedicated to curriculum and instruction — while hiring “accountability” experts to keep track of the flood of data that supposedly measured progress.
As a result of this demand for success on standardized tests above all else, schools were forced to spend huge amounts of time teaching test-taking strategies. Yet despite more than a decade of this approach, only about a quarter of our high school graduates are ready for either college or the workforce — and in some neighborhoods, the percentage is much lower.
-- Let teachers go back to teaching, rather than spending much of their time with multiple, repetitive and unnecessary reports.
The Common Core standards demand more from students and teachers alike. But teachers in New York now have to spend hundreds of hours every year on new and complex forms for each one of their students — lengthy and repetitive pre- and post-lesson assessments, benchmark and baseline assessments, task bundles, diagnostics, progress monitoring and every other piece of paper a principal can devise to make it look like supervisors are on top of the learning situation in each school.
This paperwork takes away from time teachers need to really do their jobs, such as working together across grades and subjects, planning lessons, giving individual comments on student assignments and meeting with parents. Much of this information goes into a bureaucratic limbo, unavailable to teachers and their colleagues when they sit down together to try to figure out how to help struggling students succeed.
We can be thankful that the coming end of the Bloomberg administration gives us the opportunity to remedy many of the mistaken policies this mayor has pursued. If we are serious about putting our schools back on the right track as Common Core takes effect, the next administration will have to disavow many of the Bloomberg obsessions and focus its attention on the classroom, the teachers — and the strategies that can help our children succeed.

Mulgrew is the president of the United Federation of Teachers.
Read more: http://www.nydailynews.com/opinion/common-core-wake-up-call-article-1.1328565#ixzz2Rm1i4GtK

Mulgrew's support, even if qualified by valid critiques, is pitiful, for he is overlooking arguments made by some more thoughtful educators have pointed to how the Common Core leads to a more narrowed, scripted curriculum that fosters less creativity in students, another critique in the same blogpost on how the Common Core sidelines fictional literature and a third reference notes how the Common Core's flaws reflect the fact that its kindergarten through third grade standards writers included no classroom teacher or early childhood specialist. Click to my post, "Common Core Standards: The Emperor Has No Clothes, or Evidence" for all the links.