UNBIASED - LAW: Week in Review: August 15, 2022

Episode Date: August 22, 2022

Intro (0:25)Hearing on the Unsealing of the Mar-a-Lago Search Affidavit (1:58)Walgreens, CVS, and Walmart Ordered to Pay $650M for Responsibility in Opioid Crisis (10:38)CDC Announces Agency Overhaul After Less Than Satisfactory Post-COVID Reviews (16:57)Florida Appellate Court Affirms Trial Court Decision Denying a Parentless Teen the Ability to Get an Abortion (21:13)Links to sources can be found on www.jordanismylawyer.com on the episode description page.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please gamble responsibly. Gambling problem? For free assistance, call the Connex Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You are listening to the Jordan is My Law podcast. This is your host Jordan and I give

you the legal analysis you've been waiting for. Here's the deal. I don't care about your political views, but I do ask that you listen to the facts, have an open mind and think for yourselves. Deal? Oh, and one last thing. I'm not actually a lawyer. Welcome back to the Jordan is my lawyer podcast. I'm so happy to be here with you guys as always. Happy Monday. I hope you guys had a great weekend and have an even better week ahead. As you know, Mondays are our weekly recap days where we recap the past week's current affairs and the law in an unbiased, impartial, fact-based manner so you can form your own opinions about what's going on in the world without any outside noise. We have four hot topics to discuss today. So first, we'll cover Thursday's

hearing regarding unsealing the Mar-a-Lago search affidavit. Then we'll move on to the $650 million judgment just entered against Walgreens, CVS, and Walmart for their contribution to the opioid epidemic in Ohio. Then we'll talk about the CDC announcing an agency overhaul as a result of some less than satisfactory reviews following the COVID-19 pandemic. And lastly, we'll discuss the parentless teenager in Florida that was just denied the ability to get an abortion by a Florida appellate court and why the appellate court decided that way. You guys have a lot to learn in this episode. These are actually my favorite types of episodes. They're the episodes that I know you'll walk away with more knowledge of the law than when you started listening, which is always a good thing. So let's get right into it.

Last week, we talked about the search at Mar-a-Lago and went through the unsealed search warrant and property receipt. Since then, though, the media and news organizations and even former President Trump himself have called to unseal the search affidavit. The search affidavit is different than the search warrant and the property receipt. The search affidavit is a document used to get the search warrant in the first place. So that's the document where the probable cause is laid out, as well as what the DOJ expected to retrieve from the property as evidence of the alleged crimes that were committed. The Department of Justice, though, didn't want the affidavit unsealed for the same reason, actually, that they wanted to keep the search warrant sealed prior to the search, because according to the DOJ, unsealing any of these documents at the wrong time could jeopardize the ongoing investigation. So that's what Thursday's hearing dealt with,

whether the search affidavit would be unsealed. Now, what's interesting is that former President Trump's lawyers actually didn't argue this matter. So his attorney, Christina Bob, who was present for the search on August 8th at Mar-a-Lago, attended this hearing but didn't make any arguments. Instead, it was actually media outlets and news organizations urging that the affidavit be unsealed, noting the historical significance of the unprecedented law enforcement search of a former president's residence and the, quote, immediate and intense public interest, as well as a vociferous reaction from Mr. Trump and his allies. So essentially, the news organizations are saying, like, look, this is this is a monumental moment and we deserve to let the people know what's going on.

The DOJ, on the other hand, argued that the affidavit included sensitive details that risked jeopardizing the ongoing probe. At the hearing, which only lasted for about an hour, the DOJ was represented by one of the top counterintelligence and national security officials named Jay Bratt. Bratt acknowledged the public interest in this matter, so he didn't debate that, but he argued that there's another public interest at hand here, which is the government's position to keep the underlying affidavit sealed. So he's saying that if this affidavit is unsealed, then all of a sudden the public has access to the next steps in this investigation, which would, you know, infringe on what they're trying to do here. So Bratt argued further that the investigation is in its early stages and feared for the safety of witnesses and potential witnesses and the threat of possible obstruction and interference. After hearing both sides, Magistrate Judge Bruce Reinhart,

which is the magistrate judge that signed off on the warrant in the first place, said he doesn't think the affidavit should be fully sealed. He said he believes there are portions of the affidavit that could be unsealed. So what happened was is he gave the DOJ until this Thursday to file its proposed redactions. And redactions, for those who aren't familiar, are basically just where certain portions of the affidavit would be blacked out to protect the interests of the investigation as a whole or certain people involved in the investigation or to protect confidential information, whatever it might be. So as of right now, the DOJ must submit their proposed redactions by Thursday, August 25th. My guess is that they

redact a whole lot. Like I think this document is going to be mainly black. And then, I mean, the DOJ kind of signaled that in a filing they submitted last Monday. Their filing actually said that their redactions would be so extensive that it would render the remaining of the unsealed affidavit devoid of any meaningful context. So they're saying we're going to redact so much that it's not even going to mean anything. Like no one's going to be able to figure anything out. So my thought is that they submit a ton of redactions. Magistrate Judge Reinhart doesn't necessarily approve and says this is too much. And in that case, the DOJ would probably immediately appeal since it's clear that they don't want any details regarding the

investigation being unsealed. Magistrate Judge Reinhart did say already, though, that he may have additional confidential discussions with the Justice Department before making his decision on transparency. So I think this will be very much an open dialogue with the parties to try to come to some sort of agreement regarding which portions of the affidavit can be unsealed and available to the public. Now, I did just want to answer a couple of questions. So first question is, didn't former President Trump himself call for the affidavit to be unsealed? Why wouldn't his attorneys argue at the hearing? He did. Former President Trump made a post on Truth Social,

his social media app, last week saying that the American people should be permitted to see the unredacted version of the affidavit and that there should be no redactions in the interest of transparency. But as far as why his lawyers didn't argue in court, it's not entirely clear. They may just want to sit back and see what happens. They can still file a motion. Their time hasn't expired. They still could, you know, put forth a say at some point, but apparently his legal team just hasn't made a final decision on it and whether or not they want to get involved. Like I said, they may just want to sit back and see what happens. And then the second question I got was, how can the media outlets call for the unsealing of an affidavit if they're not a party to the litigation?

So the Washington Post, CNN, NBC News, and Scripps filed a motion together to intervene. And essentially what a motion to intervene says is that these parties, the parties filing the motion, have an interest in the controversy. So they should be allowed to have a say in the matter. For those of you that watched the Johnny Depp Amber Heard trial, you saw this when the attorney for TMZ came in and argued a motion to intervene in order to block the testimony of one of its former employers or employees, sorry. So there, in that case, TMZ argued that they had a vested interest in protecting their reputation and keeping their tips and their leads private and confidential and allowing one of TMZ's former employees to testify

as to who tipped him off as to Amber Heard's bruises messed with that confidentiality. So TMZ's attorneys came in and said, hey, you need to let us get involved here. We don't want our former employee testifying. So similarly, in former President Trump's case, the news organizations are arguing that they've been covering the execution of the search warrant at Mar-a-Lago, and therefore they have the right to intervene for the purposes of seeking access to the search warrant records. And if you're interested in reading their whole motion, I have it linked on my website, jordanismylawyer.com. You can find it on the episode's description page, and that'll really lay out for you

why they're able to file that motion. That's called standing. Do they have standing in the matter? What they're trying to get out of this, and just basically the reason behind why they're doing what they're doing. So that motion is linked on my website. And then I'm going to end this with some questions for you. So you guys had some questions for me.

I have some questions for you. My first question for you is putting your own curiosities aside, putting your own nosiness aside. What do you believe is the fair and just route here? Do you think it serves the public interest to have this information made public? Or would you be more comfortable with this investigation playing out behind closed doors? And my second question for you is, do you think the news outlets should even have a right to get involved here? You know, because as I was writing out these questions, I thought to myself, is this a selfish move by the media solely for their own gain?

Or do they really believe the public deserves to know what's in that affidavit? That's definitely something to think about, right? Because we know how media outlets are. They want these headlines for their own business, their own clickbait. So is this just kind of like, are they motivated by their own wants and needs, or do they really feel, hey, the public deserves to know this? And maybe you think both. That's totally possible too. But speaking of courts and lawsuits, we have another lawsuit to discuss. This one involves some drugstores that you are

pretty familiar with. So a federal judge in Cleveland awarded $650 million in damages to two counties in Ohio that won a lawsuit against CVS, Walgreens, and Walmart. The basis of the lawsuit was to hold these pharmacies accountable for their contribution to the opioid crisis. The lawsuit was brought by Lake County and Trumbull County, both of which are counties in Ohio. Lake and Trumbull County blamed these three pharmacies for recklessly distributing massive quantities of pain pills and causing hundreds of overdose deaths, costing each county more than $1 billion in damages. Notably, the counties sued on a public nuisance theory, alleging the pharmacies created a public nuisance by not adequately restricting the way they dispensed

pain medication. And that public nuisance would be, you know, the overdoses, the deaths, the addiction, etc. So the first phase of this trial took place in November 2021. It was the first time pharmacy companies had completed a trial to defend themselves in the opioid crisis, because prior to this, you would see settlements. But this is the first time that companies had actually gone to trial and made it the whole way through the trial. And, you know, the fact of the matter is that the law requires these pharmacies to be diligent in dealing drugs. And the jury found that these pharmacies were not.

The pharmacies, though, have already said that they're appealing the verdict, calling the verdict, quote unquote, flawed. Walmart actually came out and said in a statement, we will appeal this flawed verdict, which is a reflection of a trial that was engineered to favor the plaintiff's attorneys and was riddled with remarkable legal and factual mistakes. Walmart also accused one of the jurors of violating court rules by conducting her own research outside of the courtroom and sharing it with other jurors. Walmart said that this lawsuit was an attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law, and that it was misguided and unsustainable, and also said

that instead of addressing the real causes of the opioid crisis, like pill mill doctors, illegal drugs, and regulators asleep at the switch, plaintiff's lawyers wrongly claimed that pharmacists must second-guess doctors in a way that the law never intended, and many federal and state health regulators say interferes with the doctor-patient relationship. Once the jury found the pharmacies guilty in November 2021, it was then up to the judge to determine damages. So that's where we're at now, and typically you see two phases in a trial. So in a criminal trial, it'll be the guilt phase and then the sentencing phase. In a civil trial like this, it is the guilt phase and then the damages phase. So now it was up to the judge and here's what the

judge ordered. Lake County is to receive $306 million over 15 years. Trumbull County is to receive $344 million over the next 15 years. The companies are to pay $87 million of that amount immediately to cover the first two years. The reason that Trumbull County is receiving more money than Lake County is because Trumbull County had more damage, meaning more pills dispensed, more overdoses, etc. Now here's the thing, and maybe you're thinking the same thing, $650 million sounds like a lot, but when you look at the financials of these companies, it's really not that much. I mean, CVS brought in $291 billion in total revenue in 2021. Walgreens brought in $132 billion, And according to Walmart's 2022 annual report, they brought in $572.8 billion in revenue. So between the three of these companies, we're talking about roughly a trillion

dollars. And just to put numbers into perspective, the two counties that filed suits sought $1 billion, okay? That is a tiny fraction of what these companies make annually. And then you add on the fact that these pharmacies don't even, they have 15 years to pay off this judgment. So maybe the judge felt that although the companies could afford a billion dollar judgment, which is what the counties were seeking, Maybe the judge just felt like these three pharmacies couldn't necessarily bear all of the blame for the opioid crisis and the damages sustained by the counties. So if the county suffered one billion in damages due to the opioid crisis as a whole, maybe a portion of that had to be attributed elsewhere, somewhere other than

the pharmacies. So now I ask you, do you think this is the responsibility of the pharmacies? Do you think the pharmacies should have paid out that billion dollars just based off of their responsibility alone, not taking into account how much money they make or what they're able to afford, just based off responsibility if you were to divvy it up? Or do you agree with Walmart that the blame doesn't necessarily fall on the pharmacies, but instead on failed regulation and pill mill doctors? And do you think $650 million is a fair number? Would you say more is warranted, less is warranted? I don't know. And just as a final note on this topic, if you haven't watched the show Dope Sick, I highly recommend it. It's a bit dark,

but it really portrays the cause and effect of the opioid crisis, and it's based on a true story involving Purdue Pharma. In real life, Purdue Pharma and its owners, the Sackler family, paid out almost six billion dollars. So I highly recommend that show. It's really good. And with that, let's move on to the CDC. CDC Director Rochelle Walensky orders agency overhaul admitting flawed COVID-19 response. Willensky wants to boost transparency by releasing data more quickly and to improve communication with the public. This change comes after two recently conducted interviews done in April. One was done by Health Resources and Services Administration and the other was done by CDC Chief of Staff Sherry Berger.

The first review specifically looked into the CDC's pandemic response, whereas the second looked into the agency operations of the CDC. According to a CDC statement, the reviews concluded that the, quote, traditional scientific and communication processes were not adequate to effectively respond to a crisis the size and scope of the COVID-19 pandemic. Walensky says that the CDC was underfunded before the pandemic started, noting that the public health workforce was seriously depleted. But she says it is now her duty and the agency's duty to fix that. In March of 2020, so when the pandemic had just started essentially, a Pew study showed that 79% of Americans said public health officials were doing a good job responding to the pandemic, but that number dropped to 52% by May of 2022. The decreased approval rating came as many people were confused by the CDC's ever-changing

guidelines regarding COVID. People were confused as to whether COVID could be transmitted, you know, whether it was an airborne virus, whether masks were effective, like guidelines were constantly changing and people's confusion led to them feeling like the CDC wasn't really doing all that great of a job when it came to data, information, and transparency. So we know that they are doing an agency overhaul, but what kind of changes can we expect? Nothing is going to happen immediately, but changes will slowly start coming, according to Walensky. Former Health and Human Services Deputy Mary Wakefield has been appointed to lead a team overseeing the agency overhaul, as well as the creation of a new executive council built by Wakefield and reporting to Walensky, the CDC director. The point of this executive

council would be to determine agency priorities, track progress, and align budget decisions with a bias towards public health impact. The council has not yet been established, but allegedly will come with time. And Walensky has said that in terms of transparency, the CDC has already started revamping and streamlining its website to create simplified public health guidance. The agency is also considering measures that will speed up the publication of data and scientific findings. So data will be released quicker and it won't necessarily be months old data finally being

released to the public. So basically, the CDC has promised to revamp the website so it's easier for people to navigate, work on sharing information faster in plainer language so it's easier for people to navigate, work on sharing information faster in plainer language so it's easier to understand, and develop a more nimble workforce that can quickly respond to public health crises. So I'd just like to ask you how you feel after hearing this. Do you agree that the CDC needs to make changes? Do you feel they could have done better with how they handled the pandemic? And then finally, what changes would you like to see them make? So I just read you a few of the changes that they say they're going to make, but is there anything that you feel

they could do better that maybe they didn't mention? All good things to think about just to get your mind going. Everyone's going to have a different feeling on this and that's okay, but at least we're all thinking about it, right? And of course, it feels like it wouldn't be a proper podcast episode without talking about abortion laws at some point. Actually, we may have taken a break last episode. Oh no, last episode we covered the Nebraska teen's abortion. So yeah, like I said, it wouldn't be a podcast episode without talking about abortion laws at some point. So let's get into the next story. Last Monday, a Florida appeals court upheld a ruling from a lower court

that said a parentless 16-year-old girl in Florida is not able to get an abortion. Now, you may have heard this already, you may have seen the stories about this and the headlines about this. I'm going to talk more about the law behind it because I think that's important to understand and that'll give you more context as to what's going on here. So this lawsuit stems from Florida statute 390.01114, that is linked on my website. You can go read it for yourself. But basically it says that a physician may not perform or induce the termination of a pregnancy of a minor unless the physician has notified the parent or legal guardian and the parent or legal guardian has given consent.

Florida is one of six states with this parental consent rule. Because keep in mind, Florida allows abortions up until 15 weeks. It's not one of those states that created an all out ban once Roe v. Wade was overturned. So this case isn't that the minor was over that legal threshold that states are implementing. Like at the time this lawsuit was filed, the minor was 10 weeks pregnant. So she was within that 15 week law, but it's the fact that she's a minor that she ran into an issue. Per the statute, a minor can petition a circuit court,

which is the lower court, where the minor lives for a waiver of the consent requirement. So you'll see if you read the statute, there are exceptions to the parental consent requirement of So you'll see if you read the statute, there are exceptions to the parental consent requirement of the statute. And essentially one of the exceptions is that if the minor can't get consent, they can petition the court for consent. If the circuit court denies the waiver,

the minor can appeal and the appellate court must roll within seven days after receipt of the appeal. Now, how does the court determine whether the minor should get a waiver? Great question. The minor must establish to the court by clear and convincing evidence that the minor is sufficiently mature to decide whether to terminate her pregnancy. Factors that the minor is sufficiently mature to decide whether to terminate her pregnancy. Factors that the court must consider in deciding this are age, overall intelligence, emotional development and stability, credibility and demeanor as a witness, ability to accept responsibility, ability to assess both the immediate and long-range consequences of the minor's choices, the minor's ability to understand and explain the medical

risks of terminating her pregnancy and to apply that understanding to her decision, and whether there may be undue influence by another on the minor's decision to have an abortion. And that last one is just like if there's undue influence from another party, then the court is less likely to grant the waiver and allow the abortion to proceed because they don't want undue influence from outside parties, that they want this to be the minor's decision. So those are the factors that a court considers when determining whether or not this minor is sufficiently mature. And that is the language that the statute uses, sufficiently mature. If the court finds by a preponderance of the evidence, that's another evidentiary standard, that the petitioner is the victim of child abuse or sexual abuse, then the court will issue the order authorizing the minor to get an abortion without

consent. But it has to be by clear and convincing evidence, which is a higher evidentiary standard than the preponderance of the evidence, that the minor is mature enough to obtain an abortion by way of the factors I just mentioned. So basically, if a minor gets pregnant and it's due to abuse or sexual abuse or something, then the minor doesn't have to prove as much, just has to prove by a preponderance of the evidence that they're a victim of child abuse or sexual abuse, and the court will grant the waiver to get them their abortion. But if there's no abuse happening, and this is just the minor got pregnant and didn't mean to or now wants to get an abortion, they have to prove by clear and convincing evidence that they are mature enough to get the abortion. So in this case, the trial court, the lower court, found that the

minor had not established by clear and convincing evidence that she was sufficiently mature enough to decide whether to terminate her pregnancy. Now on appeal, and this is important, the appellate court can only overturn a lower court's decision based on abuse of discretion. The appellate decision cannot be based on the evidence presented. So basically, the question that the appellate court has to ask themselves is whether a reasonable judge could have reached the conclusion of the trial judge. If that answer is yes, they have to affirm the trial court's decision. On the other hand, if the appellate court finds that a reasonable judge could not have come to that same decision that the trial judge did, then the appellate court could rule that the trial court abused their

discretion and reverse that trial court ruling. So just keep that in mind that when this case went on appeal, it's not like this girl is telling her story again and this girl is pleading for the appellate court to allow her a waiver to get an abortion based on her circumstances. This is just purely, hey, appellate court, look at this conclusion of the trial judge. Could a reasonable judge have reached this conclusion, yes or no? If the answer is yes, the decision is affirmed. If the answer is no, it's overturned. In this case, the appellate court found that a reasonable judge could have reached the conclusion of the trial judge, and therefore they affirmed the decision. Now, here's the thing, though. The appellate court

could have remanded the case back to the lower court with instruction. What this means is that the appellate court could have said, look, we affirm the decision because there was no abuse of discretion, but you're instructed to reconsider the evidence presented. And actually, one of the appellate judges, Judge McCarr, concurred and dissented in part from the majority opinion, which just means he agreed with part of the majority decision and he disagreed with a part from the majority opinion, which just means he agreed with part of the majority decision and he disagreed with a part of the majority decision. And what he said was, look, I agree that we can't overrule the trial court's decision because there was no abuse of discretion here, but we can remand it for reconsideration because the trial court judge

herself seemed to be in the middle on which way to go and even considered re-evaluating at a later date. And in his dissent, he points to instances where the trial judge wrote in her written order that the minor was credible, open, and non-evasive, and that the minor, quote, showed at times that she is stable and mature enough to make this decision. The trial court judge also wrote, quote, the court finds that the minor may be able at a later date to adequately articulate her request and the court may re-evaluate its decision at that time, end quote. The detailed written order from the trial court judge points out that the minor has evaluated the pros and cons in making her decision, and the court transcript

reflects a similar process by the minor. So what this appellate judge McCarr says is, reading between the lines, it appears the trial court wanted to give the minor, who was under extra stress due to a friend's death, additional time to express a keener understanding of the consequences of terminating a pregnancy, which McCarr says makes sense given that the minor, at least at one point, said she was open to having a child, but later changed her view after considering her inability to care for a child in her current situation in life. So McCarr essentially says, let's send this back for further review, given the trial judge's willingness to hear from the minor again.

But that's not what the majority did here. Instead, they just affirmed the decision, and that was it. They just affirmed the decision. So before we wrap this up, let's talk about the guardian issue really quick. Because according to Florida law, a guardian's consent is sufficient to obtain a waiver. So this minor has a guardian, okay? Her petition to the circuit court said that the minor's guardian agrees to the termination of pregnancy, which would be a legally sufficient basis for a waiver. Actually, what the petition said was that her guardian was, quote, fine with the minor's decision. But the weird thing is that the trial court order denying the petition doesn't mention

the guardian's consent at all. Now, I don't know if that's because the guardian consent was misplaced on the form petition, because it was. It's also a possibility that's because the guardian consent was misplaced on the form petition, because it was. It's also a possibility that she said her guardian was fine with it, but the guardian actually wasn't fine with it, meaning the guardian wouldn't actually sign the waiver. Because keep in mind, if the guardian signed the waiver, the minor would have never had to petition the court. The waiver is self-executing, meaning she just would have had to get her guardian

to sign the waiver or the consent form. She has her guardian's consent. She would have had to taken it to her physician and the physician would have conducted the abortion because per Florida law, you just need parental consent or legal guardian consent, which is why I say it's very possible her guardian wasn't actually willing to consent, because if she was, then she

would have never had a petition in the court, you know? The trial court judge, by the way, can always overrule her decision, like she can always go back on it, maybe the minor's attorneys will file a motion for rehearing, it's not really clear right now. It seems the trial court judge was teetering in the middle and was open to revisiting the issue. So we'll see what happens. But at the time that this petition was filed, the minor was 10 weeks pregnant and Florida law only allows abortions until 15 weeks. So if anything changes, it would have to change fast. So now when you see the headlines that say something like, quote, Florida Appellate Court says mine are not mature enough to have an abortion.

Now you get where that language comes from, which is directly from the Florida statute that governs parental consent when it comes to an abortion. And I have that statute again linked on my website. You can go ahead and take a look at it and kind of familiarize yourself with the language so you see what it's talking about and i just want to say i know abortion is a touchy subject everyone has their own views on it but you know my job is to get you to think outside of the box so let me ask you this what are your thoughts on florida's law and i guess what i mean by that more specifically is what are your thoughts on Florida's law? And I guess what I mean by that more specifically is, what are your

thoughts on not being able to obtain an abortion as a minor because you're, quote, not mature enough, yet being forced to have a child for that exact reason because you're not mature enough? Or how would you tweak this statute? What would be fair in your eyes? Maybe the way the statue currently sits is fair. That's okay too, but you guys know I have to get you thinking outside the box a little bit. That's my job. So I'm curious, how would you change this parental consent issue? Maybe it's not based on maturity. Maybe you think it should be based on something else. All right, so we covered a lot today. My hope is that you always leave these episodes feeling not only caught up, but also educated and empowered. I want you to leave these episodes feeling

confident about what you learned, but also with an open mind and really give some thought to those questions that I asked throughout the episode. Answering these critical questions without any outside influence, any outside noise, is what will help us all form our own autonomous opinions. And you know, I know, we need more of that in this world. If you enjoyed this episode, please leave me a five-star review on whichever platform you listen. As always, thank you for being here. And don't forget, i have a new true crime episode going live tomorrow morning i'll be covering the most recent execution that happened this past wednesday in texas you won't want to miss that one and with that i will talk to you tomorrow morning you