amicus curiae

[judyd]

does anyone know why wyeth would motion to proceed amicus curiae on an appeal? and what it would entail?

[nick]

judy can you show us the complete appeal and notice

thanks

[judyd]

the appeal isnt yet complete, and is only a request to appeal , the details come in the brief but wyeth requested to proceed amicus curiae-look on pacer 11-4-2010

[soootired]

An amicus curiae (also spelled amicus curiæ; plural amici curiae) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court".

Legal interpretations

phrase that literally means 'friend of the court' – someone who is not a party to the litigation, but who believes that the court's decision may affect its interest.
—William H. Rehnquist[5]

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
—Rule 37(1), Rules of the Supreme Court of the U.S.

The Supreme Court of the United States has special rules for Amicus Curiae briefs. See generally, Supreme Court Rule 37. The cover of an Amicus brief must identify which party the brief is supporting or if the brief only supports affirmance or reversal. Supreme Court Rule 37.3(a). The Court, inter alia, also requires that all non-governmental Amici identify those providing a monetary contribution to the preparation or submission of the brief. Supreme Court Rule 37.6. The briefs must be prepared in booklet format and 40 copies must be served with the Court.[6]

FRAP 29. BRIEF OF AN AMICUS CURIAE
A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for a later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.
—Rule 29. Federal Rules of Appellate Procedure (FRAP)

REPEAT! A BRIEF OF AN AMICUS CURIAE MAY BE FILED ONLY IF ACCOMPANIED BY WRITTEN CONSENT OF ALL PARTIES OR BY LEAVE OF COURT GRANTED ON MOTION OR AT THE REQUEST OF THE COURT. . .

My question is how can they say they aren't a part of the process when they are directly involved in all aspects of the lawsuit?

[realMarie]

REPEAT! A BRIEF OF AN AMICUS CURIAE MAY BE FILED ONLY IF ACCOMPANIED BY WRITTEN CONSENT OF ALL PARTIES OR BY LEAVE OF COURT GRANTED ON MOTION OR AT THE REQUEST OF THE COURT. . .

Wyeth DID file a motion requesting permission, so if the court grants the motion, then it will be allowed.


My question is how can they say they aren't a part of the process when they are directly involved in all aspects of the lawsuit?

What lawsuit are you talking about? Unless I'm missing something, this isn't about a lawsuit. This is about a 3rd circuit appeal regarding show cause denial of a matrix claim. I would think Wyeth would certainly be considered an interested party but not a "party to the case". Wyeth did not deny the claim - the AHP settlement Trust denied the claim. The Trust and Wyeth are not the same entity. Wyeth issomeone who is not a party to the litigation, but who believes that the court's decision may affect its interest.

[realMarie]

Looks like there's some more housecleaning going on. There's a motion for a new CAP regarding payment and claim filing deadlines. Here's my lay-person interpretation -

For the 487,607 claimants in the 7th for whom this new CAP applies, a matrix level condition (level III, IV or V) must be diagnosed by 12/31/2011 (or 15 years from last ingestion of diet drugs) AND the green form must be filed no later than 12/31/2015.

For those who are not constrained by the 7th and who have not yet qualified for matrix (8,705 class members), a matrix condition (level I, II, II, IV or V) must be diagnosed by 12/31/2015 AND the green form for that condition must be filed by 12/31/2019. Assuming a matrix level condition is then confirmed, these people (along with everyone else in the original settlement who have already recieved a matrix payment) will remain eligible to file additional progression claims until they reach the age of 80 - but these progression claims will still needs to be filed within 4 years of the date the condition is diagnosed. They figure there will only be about 4,600 class members left who are eligible to file a green form by 12/2019.

The change being made is ONLY in pinpointing specific deadlines for submitting green forms. It doesn't change anything regarding deadlines for diagnosis. Currently, the settlement agreement is clear about deadlines for diagnosis, but doesn't specify any timeline constrictions for actually filing the green forms. This CAP, assuming it will be approved, is setting that timelimit.

They're also doing something else in the way of cleaning up -
There are apparently 130 claims in arbitration which they think are clearly a waste of time, money and effort to arbitrate. They want the court to dismiss these claims with prejudice (not allow another level I or II claim to be filed), but allow them to file for a 7th amendment matrix claim if they happen to become eligible.

[nick]

thanks Marie

can you please post that motion

there is other stuff up..court grants a request..potential major discovery...


can't really say too much now but if things are to turn, this is the first step that had to be won

[nick]

incredible stuff going on

appellate court arguement is a done deal and will include seventh material

trust and class counsel crapping in their pants...major crappage

Ive proved a "STELLAR" issue to the court (an issue that will stand in appellate court), how this court will deal with it I dont know but IT CAN GO TO THE COURT OF APPEALS AND IT DEALS WITH HOW AUDITS WERE CONDUCTED IN BOTH REVIEWS


special master has been very kind and is paying attention


will share more later

[nick]

this exchange is just part of my showcause

What a great class counsel we have. This exchange was cc'd to the court by myself and fishbein

I wrote:


From: Nick Napora [ mailto:[e-mail] ]
Sent: Monday, November 08, 2010 10:54 AM
To: Michael Fishbein
Cc: [e-mail]; Madell, Lisa A.; [e-mail]
Subject: progression claims

My attorney dropped me because I refused the seventh. I have not had any knowledgeable assistance to get me through this settlement and to help me in filing. My final showcause reflects this. I do not know how I am suppose to proceed in this settlement. My claim has been tied up and no decision has been made. This has been over four years ago. Since my initial echo I have been to a dr who states I have many valve issues. This too has been over four years ago. I have let your offices know this in past correspondence and you have failed to let me know how to proceed. I have also included this valve damage info in correspondence to the Court, the special Master, and the Trust. No one has mentioned to me that I need to do something different (like turn in a new echo report or green form....I am not even sure I can do this until my current claim is rejected or accepted) I do not know how to proceed on this. I am writing this because I noticed this tidbit below from a person with some knowledge of the settlement. If it were not for the seventh I would still have a lawyer who would be able to help me with this settlement. I hope I am not missing out on anything because I no longer have any legal guidance to help me through this. How is this suppose to be handled?

It seems that once the seventh removed me from my attorney I have been losing more and more ground in this settlement.

cc/ Michael Fishbein- Class Counsel
Gregory Miller- Special Master
Lisa Madell-Special Master
Martin Rudolph-Trust
Harvey Sernovitz-Trust
Jules Henshell-Trust

sincerely
Nicholas Napora
8224951








--------------------------------------------------------------------------------

Looks like there's some more housecleaning going on. There's a motion for a new CAP regarding payment and claim filing deadlines. Here's my lay-person interpretation -

For the 487,607 claimants in the 7th for whom this new CAP applies, a matrix level condition (level III, IV or V) must be diagnosed by 12/31/2011 (or 15 years from last ingestion of diet drugs) AND the green form must be filed no later than 12/31/2015.

For those who are not constrained by the 7th and who have not yet qualified for matrix (8,705 class members), a matrix condition (level I, II, II, IV or V) must be diagnosed by 12/31/2015 AND the green form for that condition must be filed by 12/31/2019. Assuming a matrix level condition is then confirmed, these people (along with everyone else in the original settlement who have already recieved a matrix payment) will remain eligible to file additional progression claims until they reach the age of 80 - but these progression claims will still needs to be filed within 4 years of the date the condition is diagnosed. They figure there will only be about 4,600 class members left who are eligible to file a green form by 12/2019.

The change being made is ONLY in pinpointing specific deadlines for submitting green forms. It doesn't change anything regarding deadlines for diagnosis. Currently, the settlement agreement is clear about deadlines for diagnosis, but doesn't specify any timeline constrictions for actually filing the green forms. This CAP, assuming it will be approved, is setting that timelimit.

They're also doing something else in the way of cleaning up -
There are apparently 130 claims in arbitration which they think are clearly a waste of time, money and effort to arbitrate. They want the court to dismiss these claims with prejudice (not allow another level I or II claim to be filed), but allow them to file for a 7th amendment matrix claim if they happen to become eligible.


class counsel mike fishbein replied:



From:
Michael Fishbein <[e-mail]>

To:
'Nick Napora' <[e-mail]>

Cc:
"[e-mail]" <[e-mail]>, "Madell, Lisa A." <[e-mail]>, "[e-mail]" <[e-mail]>, Larry Berman <[e-mail]>

Date:
11/09/2010 10:15 AM

Subject:
RE: progression claims



--------------------------------------------------------------------------------



Dear Mr. Napora:

We have previously responded to the assertions made by you in the below referenced e-mail on may prior occasions and in many prior circumstances. In our view, it is both unnecessary and unproductive to respond to the same assertions yet again. Indeed, we believe that your e-mail of November 8, 2010 forms part of a continuing pattern of harassment of Class Counsel on your part.

Two points previously made by us do deserve emphasis here. First, there is nothing in the Seventh Amendment that deprived you of your right to counsel. Second, as you know, we have had the medical evidence submitted in support of your Matrix claim reviewed in a blinded fashion by a leading expert in valve disease and echocardiography. This expert review demonstrated that there is no reasonable medical basis for your existing Matrix claim. It is not our responsibility to advocate for payment of a non-meritorious claim.

If you believe that you have new medical evidence that supports a Matrix claim, which was not available to you when you submitted your prior claim, please furnish it to me and I would be happy to review it.

Very truly yours,

Michael D. Fishbein


to which I responded:

Dear Mr Fishbein,

We all need to see the facts here, you seem to stray from the facts.

I refused the seventh and was dismissed by my attorney. I have documentation that will support this. I will provide them both to this court and the appellate court. You stating that the seventh had no part in this is a red herring. I believe you are worried about this….it is not up to you to decide, this is for the courts to decide. Please respect that. It is now part of my show cause final and will be judged appropriately.

You stated you have medical evidence on my echo from a blinded study conducted by you and your expert cardiologist. I too have that evidence in show cause. It is interesting that your cardiologist found settlement qualifying regurgitation and the Trust Auditor found no regurgitation, none. The Trust stated they found a manipulated echo and ghosting. Why didn’t your cardiologist find manipulation like the Trust did? The facts of this issue are the Trust had information that your cardiologist did not. Information I did not have but wanted to have and refute. Information that no one will allow me to have (This is a larger issue than just matrix compensation, your cardiologist found enough regurgitation to qualify me for certain settlement benefits that would not be possible with the Trust’s Audit findings of manipulation…I want to stress that I have documentation that will show I have more regurgitation than your cardiologist found, it is enough to qualify me for matrix benefits)

Another fact is that you and my former attorney sat down and created the seventh amendment. This attorney didn’t have any echoes that were audited under the seventh’s review that were labeled as being manipulated, but the Trust in their audit found manipulation. How convenient that my attorney had no echoes from the seventh that were labeled as being manipulated. I think either court will find this information significant. I hope to use some of this information to help me in my show cause pursuit.

You act like a little kid and accuse me of harassment. Poor big bad law firm. Look up the term “harassment” and then tell these people how my echo out of the 65,000 other echoes submitted in this settlement wound up in your blinded study. Tell us what lengths you went to in selecting random claimant qualifying echoes to use in your blinded study. Tell them how you never asked me for permission to use my echo in this study. You have been biased against me and this will be reflected to the court.

Lastly you asked me if I believed that I have additional evidence that supports a matrix claim . Since my initial qualifying echo ( I believe you ask this in regards to the four year limit that you were discussing in a new motion with Wyeth and whether having an attorney helping me with my case is relevant) Since my qualifying echo I have developed a prolapsed mitral valve ( your cardiologist and the trust stated my valves were normal on my qualifying echo) Since my initial qualifying echo I now also have a mitral valve that is structurally changing, aortic root dilatation, tricuspid regurgitation as well as other ventricular issues (all these were stated as being normal by your cardiologist and the Trust’s cardiologist on my qualifying echo). This documentation has been submitted in my final show cause. You asked me to submit it to you, “What were you planning on doing about this when you reviewed this, were you going to get my claim paid or just trying to knock me down even further”?

Nick Napora

[realMarie]

Nick, much of what you've written here is baseless. Once again, you're shooting darts blindly hoping to hit a target somewhere, somehow - either that, or you honestly don't understand things correctly. Sorry if what I'm saying pisses you off, but it's the truth.

For example -
Since my qualifying echo I have developed a prolapsed mitral valve ( your cardiologist and the trust stated my valves were normal on my qualifying echo) Since my initial qualifying echo I now also have a mitral valve that is structurally changing, aortic root dilatation, tricuspid regurgitation as well as other ventricular issues (all these were stated as being normal by your cardiologist and the Trust’s cardiologist on my qualifying echo).

The settlement has a specific criteria for both mitral valve prolapse (MVP) and aortic root dilation. For the aortic root to be considered dialated by settlement criteria, it needs to be greater than 5.0 cm. This is actually a number higher than cardiologists in everyday practice and is advantageous to the claimant because it gives the claimant a lot of leeway. Aortic root dilation is a reduction factor which would put an otherwise matrix qualifying claimant on the low paying B grid if found to be present.
If it isn't greater than 5.0 and EVEN IF there is some root dilation present, any cardiologist reviewing the echo for settlement purposes (such as an TA, an auditor, an attesting cardio or whoever was asked to do the blinded study) would answer NO to the question regarding presence of aortic root dilation. The cardiologist who did your 8/2004 echo reading said there was aortic root dilation - but that's because BY HIScriteria (not the settlement criteria) anything over 3.5 cm is considered to be aortic root dilation. Since yours on this 2004 echo was 3.6 cm, that cardiologist said there was aortic root dilation - but 3.6cm by settlement parameters would be a NO to the presence of aortic root dilation.

Same story for mitral valve prolapse and the rest of your issues. It has to be greater than a specific amount to be considered prolapse and anything less than that, the answer to the audit question regarding the presence of MVP would then be NO by settlement criteria even though there might actually be some degree of prolapse evident and noted by an independent cardiologist. Once again, the advantage is to the claimant by settlement criteria TO NOT find MVP.


So, here you are trying to make a case for some kind of improper auditing by comparing results from settlement audit and private practice. Yet, there is no case to be made - at least regarding those two specific points. You're making yourself look like a blubbering idiot rambling on about this kind of stuff - and I know you're not. I've said it before and I'l say it for the last time -
Supposedly, according to you that blinded study found you to be mild mitral and that's what you need to stay in the settlement. You should be aiming your arrow specifically at that target and nothing else. The rest of it's a total waste of time.

[nick]

Good morning marie and all

all the medical stuff that marie has mentioned is AFTER I have qualified for the settlement, wasn't there BEFORE, makes the world of difference….. I won't really address this stuff more now because it will speak for itself in my show cause final.

lets talk about what I know isn’t lost on Marie but may need to be pointed out because she never really looks at all the facts

The court has granted my request that the seventh is part of my show cause. THIS IS HUGE. means when I am turned down in this court that the court of appeals can reopen the seventh and look into some of the crap that went on..Fraud….discovery...why there are 2 audit systems.....lets expand this.

You (MARIE) stated, “Supposedly, according to you that blinded study found you to be mild mitral and that's what you need to stay in the settlement”.

Well It wasn’t according to me,…marie you know this, it was according to the guy who was in charge of the seventh audit system..the guy class counsel used as an expert in court...this expert cardiologist of the court made a declaration subject to the penalties of perjury pursuant to 28 U.S.C. 1746…...he says I have the regurgitation to be in this settlement…period...so why do you say supposedly? (other than trying to pull your dribble together into one cohesive your fuked in the head nick statement)

I have shown the court that this manipulation charge is keeping me from benefits

I have shown that this blinded study by our class counsel was fudged. Faked. I have shown that the blinded study did not use the same information that the trust used in their evaluations. The court knows this fact now, everyone does ( I will be able to sit Karalis down and have him answer questions on what he did in this blind study and what the trust did in their study, a little compare and contrast session)…just think of him being deposed..So Mr Karalis the seventh audit review and your review did not take into account the material the trust had on fraud and manipulation…is that correct?....and the trust used that information and found nick’s claim to be manipulated?...is that correct? (marie how can you pretend that this is a no issue…fishbein nearly nuts”
Since he was the head doc in the seventh some questions may pose to be problematic for him to answer
(one of which….. if this study is like the sevenths audit review (and probably is) why should those claimants found equally damaged as the original settlement people not get the same benefits?)

Why did nicks atty sit down with fishbein and why did they change the information that went into a trust audit and a seventh audit?... how come all of nick’s attys’ echoes are judged one way under the seventh and another way under the original settlement…..BOOOOOOM


Good question…we need more discovery

More significance? This study provided the backbone for class counsel's argument that the settlement audit procedures were fair to the class (when obviously they were not……(they lied to the court and us). The question being why did class counsel need to fudge this study (um you don't think the courts are going to wonder this a little too?....is this totally lost on you?...I also know you are no idiot come on…don’t act so oblivious

• I have proved that the trust input into my audit was the deciding factor on whether I belonged in this settlement...What was that deciding factor Marie? HMMMMMMm ,the trust had info of manipulation and used that against me when they reviewed my echo..(my atty was investigated for frauding his echoes and I asked for but didn’t get to have that info...but the trust had it..I asked the trust for that info (remember your due process laws, they have shown up in appellate court rulings in this litigation)...they refused to let me have that information…they have refused to let me rebut that information, ( see more due process violations)…You ask why is this such a big deal?....if the trust says you have mild regurgitation and you say you have moderate, well then you are given a chance to prove you have moderate…when the trust says your atrial is not long enough, well you are given a chance to prove that your atrial is long enough…...when the trust says you have a manipulated echo…..?, …..well, I should then have a chance to prove I do not have a manipulated echo (okay, this is where they need to prove I have a manipulated echo, COME TO PAPA YOU BAD INFORMATION …I WANT ALL OF THAT MANIPULTED ECHO, FRAUD,CRAP THAT YOU BURIED..I WANT TO SEE YOUR PROOF!!!!!!!!!!!!...WHERE DID ALL THIS FRAUD, CRAP, ACCUSATIONS COME FROM?....<SHOW NICK ALL THE INFORMATION WE HAVE ON MANIPULATION,… CAN U IMAGINE SOMEONE HAVING THE FRAUD INFORMATION THAT EVEN THE TRUSTS ATTY SCHEFF SAID WAS THE MOST FUK”D UP CASES OF FRAUD HE HAS EVER SEEN, ALL THAT TURNED OVER TO ME ?>.(((gives me wood thinking about this))))...( and the flip side…Nick we need you to prove your echo isn’t manipulated…Nick the blubbering idiot says but, but but…my atty wouldn’t give me any of that info)..you actually think the appellate court is going to let that pass without doing some discovery? What will this court do? (let me clue you in to what an appellate judge has already said about this settlement)
• Audit Policies and procedures VI., PTO 2457 (may 2002) “If the auditing doctor’s visual assessment is wrong, the claimant has the opportunity to offer a rebuttal and present additional evidence”…..where did I get to offer my rebuttal? Where did I get a chance to say , “hey my claim isn’t manipulated and I’ll prove it” Is this totally lost on you? No comprende?

Hell Marie, I would expect Simon and whatever attys out there still left in this fight to review that study now (class counsel described in their motion to the court that the original settlement audit method is fair and generous to the claimants) I have exposed this study as being biased and faked. Wait till a real atty gets this stuff

You said,
“So, here you are trying to make a case for some kind of improper auditing by comparing results from settlement audit and private practice. Yet, there is no case to be made - at least regarding those two specific points”

…but you finished there?...why didn’t you continue that sentence and say, but every fukin other thing should warrant an investigation into those issues…that is all I need….THAT IS ALLL WE NEED…just an investigation

I’m not really going to argue anymore, I have to fight real attys in this settlement but I will say this….your last posted article was included in a letter to the court, it will be used in my show cause final, if it is found that you have been an agent of some other interest in this settlement, I will ask the court to find that out and you will be investigated as to why you have been giving out bogus information to claimants (esp if you have associated with wyeth or cc or the trust)….just a what if, that has very real implications.

Oh and I didn’t even mention the good stuff in my show cause…that has to wait


everyone have a good day

[realMarie]

Nick, I'm going to respond to only portions of your latest ramblings. Not because I've got nothing to comment on anything else, but because I know you I can't win an argument with a delusional person - they don't respond to facts and logic.

You (MARIE) stated, “Supposedly, according to you that blinded study found you to be mild mitral and that's what you need to stay in the settlement”.

Well It wasn’t according to me,…marie you know this, it was according to the guy who was in charge of the seventh audit system..the guy class counsel used as an expert in court...this expert cardiologist of the court made a declaration subject to the penalties of perjury pursuant to 28 U.S.C. 1746…...he says I have the regurgitation to be in this settlement…period...so why do you say supposedly? (other than trying to pull your dribble together into one cohesive your fuked in the head nick statement)

I said "supposedly" because I haven't seen anything in print about the results of that blinded study other than what you youself have written here and elsewhere on the web about it (MEDWORM). Unless I see it coming from the fingertips of someone other than you, I don't just automatically believe it.
www.medworm.com/rss/comments.php?return=mymedicalcomments.php&id=1160020

You said, “So, here you are trying to make a case for some kind of improper auditing by comparing results from settlement audit and private practice. Yet, there is no case to be made - at least regarding those two specific points”…but you finished there?...why didn’t you continue that sentence and say, but every fukin other thing should warrant an investigation into those issues…that is all I need….THAT IS ALLL WE NEED…just an investigation

I did finish my sentence and there's nothing further to say about any of the rest of it for the same reason I won't continue to banter back and forth with you beyond this post - there's no point in arguing with delusional people. Once I've satsfied myself that at least some some of what's being said is nothing but twisted logic or pure ignorance, then I make the assumption that the rest is more of the same and not worthy of dissecting any further. You don't suppose the Court tends to think the same way, do you?

I’m not really going to argue anymore, I have to fight real attys in this settlement but I will say this….your last posted article was included in a letter to the court, it will be used in my show cause final, if it is found that you have been an agent of some other interest in this settlement, I will ask the court to find that out and you will be investigated as to why you have been giving out bogus information to claimants (esp if you have associated with wyeth or cc or the trust)….just a what if, that has very real implications.

Well, I've got nothing to worry about there Nick. You nor anyone else will find out that I'm anyone other than I've always said I was - so go ahead and ask the court to reassure your troubled mind that I'm just a claimant in this settlement like everyone else. Guess who's going to look like a total idiot with yet ANOTHER conspiracy theory when the court comes back and tells you that I'm just who I always said I was.

[realMarie]

And by the way, the Court already approved the new CAP a few days ago.

[nick]

i never bought into the conspircay theory, and I never said you were associated

I said ( if ) you were that you and your agent would get in trouble

sometimes i just find it hard to believe how a person can be so hateful and spiteful that it would prompt that person to give crap information to people who have no other source of info...when I look at it this way it makes much more sense to think that maybe your lawyer hubby or maybe his law firm has a dog in this fight, cause I don't want to believe you are really that big of a bitc

[watching guest]

There is no delusion that all of the tampered with echoes did wind up in the seventh. Everyone in this settlement from the judge down knows this is true. Why your class counsel chose to bury this information should be what Nick needs to find out.