Dueling Rulings on the Abortion Pill

FDA approval process upside down. One judge in one court in one state turned upside down the FDA's approval process for safe and effective medications. First and foremost, when you turn upside down the entire FDA approval process, you're not talking about just miffipristone. You're talking about every kind of drug. You're talking about our vaccines, you're talking about insulin, You're talking about the new alsheim drugs that may come on.

If a judge decides to substitute his preference, his personal opinion, for that of scientists and medical professionals, what drug is it subject to some kind of legal challenge, So we have to go to court, and for America's sake and for women's sake, we have to we have to prevail

on this. But in a legal twist, within an hour of Cosmeric's decision, a federal judge in Washington State, Thomas Rice, issued a contrary decision, ordering the FDA to preserve the status quo and retain access to miff apristone in the seventeen Blue states and DC that had sued there. Johnny Me is an expert in the area of reproductive legal rights. Mary Ziegler a professor at UC Davis Law School. So why is he second guessing the FDA's decision two decades ago?

Tell us what his reasoning is. Well, he has two reasons. One is the Kumstock Act, which is the federal law Passion eighteen of any three that no one's really thought about in a long time, actually fars the mailing of missa pristone. He's, you know, ignoring the kind of dominant interpretation of the Comstock Act and any kind of constitutional concerns that reviving it would have and basically saying it's a plain text should apply. He's also arguing that the

FDA lacked the authority to approve mitho pristone. He's sort of, I would say, kind of changing the narrative about how the approval of missa pristone went. He's suggesting the FDA kind of rushed it through under this regulation called Subpart H and made what he sees as unforgivable errors, and how it viewed miso pristone, for example, by relying on the idea that pregnancy was disease, which tess merit doesn't think is true. If if that sounds like it's an

extremely broad opinion, it's because it is. I mean, he's reaching a lot of issues and paying a lot of things that wouldn't be strictly necessary to resolve the case. So this was not someone trying to avoid creating as if anything kind of the opposite. How does he deal with the fact that How does Judge Kesmer deal with the fact that miffopristone has been shown to be safer than some common low risk prescription drugs like penicillin. The death rate for this drug is point zero zero zero

five percent. He just doesn't accept that as a fact, right, I mean? In his analysis of standing, for example, he explains why the Alliance for Hippocratic medicine, which really doesn't say much about treating patients who've had these injuries. There are a few passages, but not many. He essentially says the reasons why women are not there themselves just because they've suffered so much regret and depression and suicidal ideation.

He mentioned towards the end of the opinion people dying from having taken Miffo pristone this year, So he's getting more or less accepted the facts is presented to him by the Alliance for Hyppocratic Medicine, even if those are not, you know, the facts that scientists accept the American Medical Association accepts, as the American College of Centersins and Gynecologist success. He's sort of living in a different universe when it

comes to how myth of us don't actually work. Is he also using the language of anti abortion activists, like talking about the fetus as an unborn human. Yeah, he is. He cites, I mean the studies I mentioned about post abortion regret were done by an anti abortion activist named David Reardon. He refers to doctors to perform abortions as abortionist. He refers to people who's kind aborships as post abortive.

He calls fetus's unborn children or unborn humans. He picks up on the idea that's the only kind of benefits of abortion access are sort of eugenic. He describes, you know, the effort to create uber mentioned with his terms. So there's a lot of rhetoric that draws directly from anti abortion materials. Also, on Friday, within an hour of this decision, federal Judge Thomas Rice in Why Shehington, issued a preliminary order blocking the FDA from making any changes to the

current availability of mif A press Stone. I take it this wasn't just coincidence. No, no, probably not. I mean, obviously I haven't you know, spoken to Judge Rice. But I take it that it was not a coincidence, and that this was designed to force the appellate courts to give some clarity of sooner other than later, to the SBA about what it should be doing. Judge Rice's ruling applies to the seventeen states that sued. So what's the situation in those states with this conflicting ruling? I mean,

which judges order applies? Well, I mean the answer is, you know, arguably both, right, So I mean I think that the question really is how through the FBA do

you try to square that circle? And best answer seems to be that the FDA, using its discretion as to how to enforce, you know, orders regarding drugs that are unapproved, it should just leave the status quo alone until there's clarity prominent felt because you know, even if a drug is unapproved, the FDA has some discretion about how vigorously it pursues people who are dispensing, prescribing it, etc. And given that the FDA here is under directly deplipting orders,

it would be weird for the FBA to take an aggressive position in enforcing Judge Chestmeric's order. And I mean, obviously just it's worth saying to Judge Chestmeric's order has been kind of paused for seven days pending an appeal, So at the moment that you even that isn't really an issue. But when it becomes on, we'd expect to see the FBA argue that the best way it can follow both orders is to wait to do anything until

it gets clarity from the US Supreme Court. So the Biden administration is going to ask the Fifth Circuit for an emergency stay in your opinion. How likely is it that they'll get that? It's hard to stay right. I mean, we know that the Fifth Circuit is very conservative, and I think the question really is whether there's any bridge too far for the Fifth Circuit or the US Supreme Court. I think, you know, Chessmeric's ruling in several steps beyond

the decision to reverse Rovway. For example, the Court and Doobs said, you know, emphatically over and over again that this was about giving the aborshion issue back to the people. And of course Judge Chessmeric's ruling is about taking the a worshion issue away from the people. So I think also there's been some irony and the fact that there's so much second guessing of scientific authority by Judge Kasmeric when many conservatives just event decades criticizing the Rowe Court

for converting, you know, judges into medical review boards. So there's some chance that the Fifth Circuit or the US Supreme Court will see this as different from what's come before, or too far too fast. But I think again, when you're looking at who's on the Fifth Circuit, who's on the US Supreme Court, you certainly can't rule out the possibility that they'll sign off on what Chests America is doing,

or at least significant parts of it. An emergency petition from the Fifth Circuit would initially go to Justice Samuel Alito, who wrote the decision overturning Roe v. Wade. Is he likely to decide that himself will refer to the whole Court? I would hope you would refer to the full Court, given that you know, you have clashing district court rulings on matters of national import Again, you know this Supreme Court has not behaved like all the others before it.

But again, I mean I would hope that this issue would be of national enough significance that Justice Alito would refer it to the Full Court. The thing about this ruling is it's not just a bad abortion, but it undermines the authority of the FDA. It puts pharmaceutical companies in a bad situation. So is it likely to get

to the Supreme Court? Well, I mean, we can't live in a world where the SBA is told to do contradictory things on a drug of national significance in a major cultural war issue that is untenable, and so sooner or later, the US Supreme Court is going to have to intervene to just settle what the FDA is supposed to do. We've talked before, and you've mentioned and now how conservative this court is. If they follow what they said in Dabbs, I'd take it they would reverse Judge

kiz Americ. But we never know if they're going to follow what they say or not anymore rights, And I think in some ways that's why the Alliance Defending Freedom filed this too, right, because the possibilities that are imaginable in the US Supreme Court are unimaginable in democratic politics. Right.

I mean, if you were asking, could you achieve a result like this through a statute passed by Congress, assuming he's got a Republican in the White House and Republicans controlling Congress, the answer is no. Right that it's not inconceivable that the US Supreme Court would sign off on,

you know, something that wouldn't be possible through majority rules. Mary, you spoke about irony before, and I'd like you to comment on the irony that in the Dabs decision, which overturned the constitutional right to abortion, the majority indicated that this would merely rich are on the issue of abortion to the people and to the democratic process, and basically

they wouldn't have to deal with anymore. I mean, obviously they actually believe that that was naive, and all the more so, profess any student of history would know that neither supporters of abortion rights nor opponents of abortion have been content with letting voters decide, even if that would be the more stable thing to do. The anti abortion movements Tatmeric alludes to in his opinion, at one point has been fighting for fetal personhood, which will make abortion

unconstitutional and illegal nationwide. And if they can't achieve that, they're going to get as close to it as they can. And abortion rights supporters, obviously, as Judge rights is ruling makes clearer not going to be content with gods either.

I think it's even more clear that the anti abortion movement is going to rely on the federal courts again because they've been losing so much, whether it's invalid initiatives or in elections, and so if they don't have the hearts and minds of voters, they're going to need to rely on the federal courts. So this is a reminder that either the court was naive or dishonest and telling us that the federal courts should be out of the abortion business. After dogs. This is just a preliminary stage.

So even after this stage, it would go back to trial before Kazmeric and Judge Rice, right exactly, and then it would kind of go back up through the courts again. But I mean, I think part of the reason everyone has pained so much attention at this stage is, as was obviously the case in both Judge Rice and Judge Kasmeric's rulings, we had a pretty good preview of what they're going to hold after the trial. I mean, I don't expect any major surprises coming after the trial, and

the same thing will be true in the Supreme Court. Ways. In at these early preliminary stages, we should have a pretty good sense of where they might be going. I mean, it doesn't always work that way, but often we get pretty strong signals. Some abortion providers have said that if FIfF A press Stone is unavailable, they'd switch to missoprostill only regiment. So how is that different from FIfF A press Stone. Well, there are a couple of things to

note their right. So on the hand rate that mister prostill only abortion has pretty proven it's not as effective, at least at the moment as mister Prestone and mister Prostell, which is why together, which is why it's not the standard of scare. It's also worth emphasizing even though it's safe and relatively effective, there's no guarantee that it'll be

available in the long term either. Because one of Judge Casmeric's rulings centered on the Comstock Act, and as I mentioned, if you interpret the Comstock Act as broadly as Kasmeric does, it would apply to mister Prosteal too. I mean, that wasn't the issue before Judge Kasmeric in this case, but it doesn't take a lot to recognize that a subsequent challenge before Judge Kasmeric based on mister Crostol or really any drug intendat or adapted for abortion, could come out

the same way. So there's no guarantee that if that's the way she sees the Comstock Act, and if other conservative ports, including the US Supreme Court degree, mister Prosteal could be in the crossairs too. So this is going forward despite the fact that we've seen in many states

that voters have not supported anti abortion agendas. Yeah, absolutely, I mean, I think there's a clear and ironic conclusion that's emerging in the post DODS era, which is that essentially anti abortion groups who have spent years railing against judicial activism and judicial policymaking are relying on judicial activism and judicial policy making because when voters are asked directly about these questions, they simply don't want the sweeping abortion

bands that the anti abortion movement commands. Right, even if voters may be okay with abortion restrictions, they're not prepared to go nearly as far as the anti worshion movement wants, which means the only way you can get to the kind of outcome they're looking for to rely on judges like as Merit, who you know, are not reflecting where American voters are. Would this prevent pharmaceutical companies from making

the pill? Well, so I would make it unnailable, right, it doesn't feel necessarily with it would mean that it's unapproved in the United States, And so it would mean that in theory, if you're continuing to dispense it or distribute it, that you could be in legal jeopardy. But again, then how much the FBA actually enforced that issue, right, how much the SPA used its discretion to go after violators would be up to the f PA, and we would expect for the Biden administration that not to be

a priority. And on the Comstock point, it would make it illegal to nail it, which would first affect manufacturers and distributors in the sense that any time they actually put it in the mail, whether through the US Postal Service or FedEx or UPS or whatever, they could be violating the federal law. Again, I think what you're likely to see if it comes to that as the Biden administration essentially signaling, you know, we're not going to use whether BOJ or FBA, We're not going to treat this

as a priority. We're going to kind of look the other way. But whether you know, you see drug manufacturers and doctors feeling comfortable enough to continue making mitra crestone available on the strength of that kind of guarantee, I think it's an open question. Yeah, I was just wondering if, for example, worst comes to words that there could be an underground network and people could get the drug from outside the country from Canada. Yeah, I mean we would

expect to see that. I mean, there's definitely going to be some of that. I think because we've already seen, for example, women on the Web and aid Access groups like that that provide medication access from Europe, and so far that would be under the FDA's personal Importation policy. And while in theory that's violating that policy, the FDA has taken a kind of again non aggressive approach to

dealing with that. And there's no real realistical way to prosecute groups like aid Access simply because they're not going to be extradited from countries that approve of abortion as you know, protected rights. As there have been a situation before. I mean this sort of highlights that one judge in Amarillo, Texas can make a ruling that affects the whole country, and then another judge now in Washington can make a

ruling that affects maybe half the country. Has this happened before, dueling injunctions like this, I mean, they've definitely seen circuit splits. I think what the newer wrinkle here is the spread of these nationwide injunctions, and I think the polarization of the courts. And it's not a coincidence that we have an Obama nominee and a Trump nominee here. So the spread of nationwide injunctions, together with the kind of widening gap between the kinds of ruling judges or ordering has

made this kind of it. I mean, the fact that you have these two rulings coming out at the same time on the same day, giving the FDA directly opposing orders, as far as I know, was unprecedented, even if we've seen you know, splits and divides between supports and circuits in the past. The ruling in Washington, I mean, there's no group that will appeal that right because it was the FDA and the and the Democratic States. Yeah, I

mean they may see. You know, the only wrinkle there, Judge Ice didn't go as far as the Liberal States wanted. They had argued that the FDA FA rules actually preemptied contradictory state prohibitions on abortionition meditation. So in theory they might appeal to the Ninth Circuit Court of Appeals, which

is quite progressive, and seek more. But yeah, it's not as clear who's going to do what in that situation, because you know, the FDA is less supposed to what's going on thus far in that case obviously than it would be in their TuS Meer's case. Thanks, So much for letting your expertise on this subject. That's Professor Mary

Ziegler of UC Davis Law School, California. Federal jury has awarded three point two million dollars to former Tesla contractor O and Diaz in a long running racial discrimination case. But that's ninety eight percent less than the staggering one hundred thirty seven million dollars a different jury awarded to Daz two years ago. That was one of the highest verdicts ever for someone suing over discrimination in the US. This sets the stage for a post trial battle over

the award. Joining me is Anthony on CD, co chair of Proscouer Rose's Labor and Employment law department. Tony start by telling us about the original trial and original verdict.

This case ended up going to trial and verdict in October of twenty twenty one, and that's when the original jury verdict came out, and it was in the rather eye popping amount of one hundred and thirty seven million dollars composed of six point nine million dollars in emotional distress damages and one hundred and thirty million dollars in punitive damages. What mister p as alleged and was able to prove at trial, was that he was subjected to

racial harassment in the workplace. He was a very short term employee, worked there for less than a year. He worked as an elevator operator at Tesla in its Fremont, California plant. I'm not sure what an elevator operator even is in the twenty first century, especially at a company such as Tesla, but apparently that was the job he had there, and the jury obviously was very sympathetic to his situation and determined that he did suffer emotional distress

and that punitive damages were in order. Any idea where this six point nine million dollars in emotional distress comes from? Where they came up with that number? Sure? So the answer is that oftentimes what a jury will do, and

I suspect that's what happened in this case. If they are upset enough about the circumstances that occurred in the workplace, and for whatever reason they believe that this employee has been wrongly treated or obviously in this case, significantly wrongly treated, what will creep into the emotional distress damages award is a punitive element, meaning that the jury was only asked in that phase of the trial because there are different

phases of the trial compensatory damages versus punitive damages, and

the compensatory damages phase of the trial. The jury was apparently so upset with what had occurred that although they were only supposed to be focusing on making mister Diaz whole in the form of emotional distress damages, I believe what happened is that at that stage of the proceedings, when they were only supposed to be focusing on making mister Diaz whole in terms of awarding him damages for emotional distress, I suspect what crept in was an element

of punitive reprisal essentially by the jury against Tesla. That's not supposed to happen, but it's not unusual for that to happen, and I think that's what happened with the six point nine million dollar award that acurred with respect emotional distress damages. In California, where this jury verdict occurred, there aren't really any guide posts for a jury to

determine what are the appropriate amount of emotional distress damages. Indeed, oftentimes it's what the plaintiffs lawyer asks for the plaintiff lawyer oftentimes will put a number out there and tell the jury that he or she thinks that's an appropriate amount of emotional distress damages. But the jury instructions in California are woefully deficient in telling juries what they should evaluate and how they should determine the amount of emotional

distress damages. This is becoming a bigger and bigger problem where the employer basically is at the mercy of the plaintiff lawyer in terms of what number he or she throws out to the jury or whatever the jury may come up with, and there's no real standardized way of

figuring that out. Another problem with the jury instructions in California, by the way, are they asked the jury to assess and award past emotional distress damages up through and including the time of the trial, and then future emotional distress damages. I think that second element, at the very least future emotional distress damages is nothing but purely asking the jury

to speculate about something. And so what often happens is the jury comes up with a very large number and they give half for the past emotional distress damages, and they give half for the future emotional distress damages. And all of this is just funny money, made up numbers that aren't really targeted or in any way correlated to anything in reality. So the trial judge gave the plaintiff

here a tough choice. Tell us about it. Sure. So what happened after the verdict came out in October of twenty twenty one, TESLA moved the Proud Court judge to reduce the one hundred and thirty seven million dollar verdict, which was completely in anticipated that clearly the judge would seek to do something with that verdict because we've already talked about how large the compenstory damages verdict was, that is, the emotional dis dress damages, But on top of that,

there was a one hundred and thirty million dollars punitive damages award. And the problem with that part of the verdict from October of twenty twenty one is that the punitive damages were approximately nineteen times the amount of the compensatory damages. And once that happens, then the verdict is imperiled because there are constitutional limits that have been defined by the United States Supreme Court and have been accepted by courts all around the country. They really don't have

a choice. That a punitive damage award can only be at the very highest amount, perhaps nine times the amount of compensatory damages, and so in this case, the original verdict was nineteen times the amount of the compensatory damages award, so that had to be reduced. What the judge did in April of twenty twenty two was to reduce both

the emotional distress damages and the punitive damage. And what the judge did, in an attempt to fix this verdict was reduced the emotional distress damages from six point nine million dollars to one point five million dollars, and then he multiplied that one point five times nine to get punitive damages in the amount of thirteen point five million, for a total verdict of fifteen million dollars. This was the best the judge, I think, thought he could do.

He was also obviously trying to preserve a significant amount of punitive damages, which he did by although still reducing it obviously significantly from one hundred and thirty million dollars, he kept it within that constitutional boundary, meaning that the thirteen point five million dollars was within a single digit multiple of the one point five But as you can see, when you're dealing with these kinds of numbers, these are

just literally numbers pulled from nowhere, and these are huge, huge, huge amounts of money to be considered to be awarded against an employer in a situation like this, not to mention the fact that the predictability is completely ridiculous if you just look at the difference between the October twenty one verdict of one hundred and thirty seven million dollars and then the corrected verdict by the judge to fifteen million dollars. So that swing itself is absolutely breathtaking and huge.

And then we have another trial that takes place on the damages. The reason we had another trial on the damages is because the judge offered mister Diaz the opportunity to accept that reduced verdict of fifteen million dollars that the judge had patched together, and mister Diaz declined it. He decided not to accept the fifteen million dollars and the alternative indoor number two, was to have another trial

on damages alone. Now it wasn't another trial on the underlying case as to whether he was or was not harass that was established and the jury was told that that was already established. But importantly they didn't therefore hear all the evidence. This next jury that just issued it's predict on the third of April of this year, only heard evidence about damages and did not hear any of

the evidence concerning the underlying liability. And I think that may not be the best outcome for an employee in a situation like this, because the jury, obviously, with the first verdict for the first trial, was quite riled up, and they were I'm sure mostly riled up by what they heard in the liability phase of the case. This second jury never heard all of that. They were just told to assume that there was harassment, and now their job was to figure out what was the basis for

a damages award. And what this new jury did last

week was further reduced the verdict significantly. From again that the original emotional stress damages award was six point nine million, the trial court judge reduced that to one point five million, and in the retrial, the new jury comes up with one hundred and seventy five thousand dollars, another significant reduction in the first two numbers, and then they award a punitive damages of three million dollars on top of the one hundred and seventy five thousand in emotional distress damages.

So he chose the wrong door, it sounds like he did. Now. I think that if he had chosen the fifteen million, it's unclear what Tesla would have done. They may have still filed an appeal. I don't think they would have been bound by that fifteen million. It's not clear that

they thought that number was a fair amount from their perspective. Now, the interesting part about the latest version of this verdict, this one hundred and seventy five thousand dollars three million dollars in punitive damages, is now once again the punitive damages are out of whack with the compensatory damage. As they said earlier, the Supreme Court has said that punitive damages can't be more than nine times the compensatory damages. Well,

now it's seventeen times. Three million dollars is seventeen times the amount of the emotional distress damages, so that's got to be further reduced. The Trial court judge, no doubt, will not increase one hundred and seventy five thousand. He

may reduce it, but I suspect he won't. But what he will probably have to do, or will be called upon my tesla to do, is to again evaluate the overall outcome of this case and reduce that three million dollars to a number that is much closer to one hundred and seventy five thousand dollars than it is to the current three million. In fact, he would probably have

to cut it in half or more. So. Juries are not told anything about how the punitive damages have to be in line with the compensatory by a certain amount exactly, and I think that is a failing of the system. I think both sides have a reason during the trial not to talk about those limits. The plaintiff's lawyer obviously is not going to want the jury to hear anything

about outer limits. So how much the punitive damages might be, they would love to have nineteen twenty, thirty forty times the amount of the compenstory damages, because that just gives them more leverage on a retrial. I'll admit it gives them more leverage on appeal. It gives them more leverage,

perhaps trying to settle the case. The defense, on the other hand, however, also doesn't really want to talk about those limits because it might suggest to the jury numbers multiples of the compensed story damages that they haven't thought of.

In other words, if the defense says, yes, nine times is the maximum, but maybe you should do one or two or three times again, that might be something that a defense lawyer doesn't want to put out there because they're hoping that the jury comes back with a smaller number, perhaps even than one times the amount of compensed story damages. So they don't want to plant a number usually with

the jury either. And so there's this bizarre conspiracy of silent the way I've put it, and everyone in the courtroom, the judge, the lawyers, all know that there's this constitutional limit to how much the punitive damages can be, and yet nobody tells the most important group of people in the courtroom what those limits are, which is the jury.

The jury is never told about those constitutional limits. And I think that going forward, there should be some reform here and that there should be a specific jury instruction from the judge and admonition from the judge about what the scope of those punitive damages can and should be. Because when that aspect of the case gets to the jury, the plantiff lawyer, they all say the exact same thing. They say, this defendant, this employer is a very very

wealthy company. It makes X amounts of money every single day in revenue, it makes why amounts of money every single day in profits. There's one thing, there's only one thing that they understand, and that is money. And you need to send them a message. And the only message this company understands is money. And so, ladies and gentlemen, the jury, you're going to need to hit them with

some significant amounts that they will learn their lesson. Every single plantiff lawyer in the state of California, and I suspect around the country says the exact same thing to juries. They don't realize that they're being called the same thing that every jury in the country is being told under the circumstance, and they're invited to do what they need to do to punish the employer. And the numbers that they do here, by the way, are revenue numbers and

profitability numbers. And so the jury is going to be told gee, if you only award a million dollars Elon Musk makes that in twenty five minutes, that's that's not going to stop him. You've got to really do something, you know, to send a message. And so that's what

happens to get the jury riled up. And then no one ever comes in and throws any cold water on it and says, by the way, don't come back with a number that's more than nine times, and maybe you should be thinking about a number that's not more than two or three times. The compense story damages. Nobody says that to the jury, so it's not surprising that they come out with these outlandish verdicts. Is the judge able to give that kind of instruction orders? They have to

be in the jury instructions. Typically in a trial such as this, the judge gives what are referred to as pattern jury instructions, that is, those that have been approved by our committees and plaintiest lawyers, defense lawyers who've all

sort of worked on these and negotiated them. But there are also special jury instructions that each side can propose to the judge that the judge, within his or her discretion, can either read to the jury or not, and some judges have their own instructions that they think are appropriate for administrative purposes. I just don't know the answer to whether anyone's ever suggested this to a judge or whether

any judges have ever suggested the parties. But I think it's high time that somebody started thinking about this, because you know, you have the same case and the verdict has ranged now from three point one seven five million to one hundred and thirty seven million dollars over the

last year and a half. That is preposterous and it breeds disrespect and contempt for our legal system where you could have reasonable people, supposedly both in the form of the judge and the jury, coming to a conclusion as to how much an employee should be recovering under circumstances such as this. It is completely ridiculous and it needs to be fixed. So this decision, this verdict can be appealed by the plaintiff, absolutely, I'm sure it will be appealed.

That probably will be appealed on both sides. I think the plaintiffs lawyer has already said that he believes that there was error that occurred during the trial because there was a different tack I believe taken. I don't know all the details about this, but I believe that there was a different tack taken by the defense counsel in this case, and they were extremely aggressive in terms of

challenging the credibility of mister Diaz. I'm sure the original lawyers did the same thing, but for perhaps some of the reasons I mentioned earlier, which is the jury didn't hear all the other evidence about liability. I think it landed more solidly with this jury than perhaps in the original trial, and they attacked his credibility, and they brought up back such as he had recommended each of his

adult children to apply for jobs at Tesla. The obvious question is somebody who is being subjected to this form of harassment, such as he had testified about, you wouldn't expect that that person would then turn around and recommend to family members, close family members with whom he lived. I believe that they should also apply for jobs at

Tesla didn't make a lot of sense. I'm sure the planet had explanations for that, and again I don't know all the details, but my tacit understanding is the defense layers were extremely aggressive in terms of attacking the credibility of mister Diaz under these circumstances, which I'm sure tamps down significantly the emotional distress component of this verdict. Now, there was an arbitration in a similar case what happened there.

The other thing is really interesting about this case, and I think you and I've talked about it before June, and that is that this is almost the laboratory condition experiment in terms of the arbitration process as compared to the jury process in the state of California before the original verdict, before one hundred and thirty seven million dollar verdict came out in this case, another black employee sued Tesla.

He was an employee at the exact same location in Fremont, California, testified about almost identical circumstances of alleged racial harassment that occurred in the workplace. He in fact, was represented by the exact same lawyer who prosecuted mister Diaz's. The tale of two cities here is that first employee who sued

and actually got an award had an arbitration agreement. He had signed an arbitration agreement, and the arbitrator in that case in August of twenty twenty one granted him one million dollars, an award no more than one million dollars, which at that time was a significantly high amount for an arbitrator, because arbitrators are usually fairly careful in terms of the amounts of money that they award in these cases.

That then was followed two months later by again a laboratory condition experiment, almost same lawyer, same plant, same allegations, just a different employee, and that employee got one hundred and thirty seven million dollars. So this is one of the reasons why, for example, I think plaintive lawyers would say,

we hate arbitration, we don't ever want it. It obviously is going to result in lower verdicts for our clients and less of a participatory element for the plaintiffs lawyer, because they usually get forty or fifty percent of whatever the underlying verdict is. Defense lawyers, on the other hand, are saying arbitration is a perfectly good way of resolving these disputes, and that's a much more reasonable outcome that can be predicted. Plaintiffs lawyers absolutely don't like arbitration, thanks

so much, Tony. That's Anthony on CD of Proskauer Rose. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news honor Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grossow, and you're listening to Bloomberg