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Comment by hn_throwaway_99 | Hacker News Reader

After just finishing "Bad Blood", the book by John Carreyrou on the Theranos fraud, this particular passage in the article had me incensed:

> This week a lawyer for Advanced Dermatology and Cosmetic Surgery, which is backed by private equity and is the largest dermatology practice in the United States, called the general counsel at the University of Florida, where two of the authors are employed, demanding specific changes to the paper.

I'm disgusted by these high-powered law firms using thuggish tactics to try to silence critics. I have no problem with these lawyers responding to the article, in public, after it is published, but using the threat of expensive litigation to shut people up is just gross and morally bankrupt.

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Agree. Related thought: the influence of lawyers in tech firms - witness the draconian EULAs users are 'forced' to accept with a false binary choice of accept or not - and the role that corporate law staff have had in software development, by effectively limiting the rights of users.

It seems to me that many technology firms copy-and-paste the soul of EULAs to protect themselves (against the worse cases that may arise) with little thought about the effect these long list of restrictions cause. It often seems it cascaded from Microsoft's use of EULAs from Windows 95, Office 95 and onwards, because it was the norm to consumers in that 'monopoly' environment.

The role of lawyers in suppressing ideas, choices and debate - be it in healthcare (the USA dermatology sector as per the OP article) or in technology - the Hacker News set - warrants further debate.

Especially if ethics are to play a greater role in the future of technology - as seems to be the general consensus of forward-thinking governments and progressive technologists.

I think this legal arms race is a consequence of America's overly-litigious and profitable legal system.

These EULAs are the equivalent of warning labels on soda bottles that loosely read "Warning: Contents under pressure, don't point at your eyes"... who is that written for? We laugh and call it unnecessary, but that warning exists because there is precedent that must now be defended against.

When those ludicrous cases are widely used as a means of attack or personal enrichment, of course corporations will respond with excessive legal restrictions. Their shareholders don't want to lose money to frivolous lawsuits or be exposed to risks competitors have covered.

A warning is not a contract.

I anal but it might be worth looking into making EULA null and void. But first (sorry for sounding like a broken record), we must repeal the cfaa.

Do they actually write that on carbonated drinks in USA? That's brilliant.

A warning appears on some UK labels. Pepsi Max has "pressurised container, please open slowly and handle with care" on the label.

Haven't you seen the McDonalds coffee in the UK?

"Warning, contents may be hot"

The "may" always makes me chuckle.

They were sued in the US by some woman who scalded herself when she spilled McDonalds coffee on herself. She was given millions.

https://en.m.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Rest...

That woman burned the skin off her genatalia when McDonald's served a far too hot coffee. After they refused to pay a small amount to cure her injuries (remember, no socialized health care in USA), she sued. She offered to settle, again for a small amount to cover expenses, and McDonald's refused again

McDonald's launched a massive PR campaign to mock her in order to pollute public sentiment in favor of corporations over victims, so thejury awarded $2.7 millions in punitive damages to defend the public against McDonald's brazen attack on himan society. The Judge lowered the award to $640K; and McDonald's appealed, refusing for the third time. They eventually settled for a confidential amount.

To add context, the original awarded amount was calculated to be the revenue of a single day of coffee sales for McDonald's. Stella Liebeck had originally sued for ~$50,000, to cover the cost of her medical bills, which McDonald's refused to do. Additionally, the award was calculated at that amount as a punitive measure, because McDonald's had received hundreds of complaints from customers of the coffee being too hot, which it summarily ignored. The coffee had been a problem; McDonald's just didn't care.

Unfortunately, the lawsuit, and the seemingly 'ridiculous-at-first-glance' nature of the headlines surrounding it, was used by several companies to push for specific tort reforms, which were mostly to the detriment of the average public.

There's more to this than "Dumbass sues company because hot coffee was hot".

Hot Coffee https://www.imdb.com/title/tt1445203/

McDonalds had received a few hundred complaints out of 10 billion cups of coffee served. The temperature of the coffee was not a problem; it was, and still is, the temperature at which all good coffee shops and restaurants serve coffee, including McDonalds. If you go get coffee at McDonalds (or Starbucks or pretty much anywhere else) it will be served to you at around 80 deg C, and sometimes even higher. This temperature is recommended by professional coffee associations [1], and it's the temperature at which any decent coffee machines holds your coffee.

It sucks that Stella Liebeck was injured. Nobody deserves that. But she was burned because she squeezed a cup of hot coffee between her legs while she messed with the lid. This is, by any reasonable criteria, an abuse of the product, and protecting a few people from such foolish choices would mean depriving everyone else of decent coffee. Fortunately that hasn't happened yet.

1 - https://www.ncausa.org/About-Coffee/How-to-Brew-Coffee

Nobody like to remember that folks went there because the coffee was extra hot. She didn't get burned because McD's served hot coffee - she'd been drinking that for years? She got burned because just as she took the top off to put in sugar, her grandson gunned the motor and spilled it.

So who's 'fault' is all this? In law you can sue for money from anybody even remotely connected with an injury. So she chose McD's instead of her grandson - no surprise. But was it right?

> So who's 'fault' is all this?

Uh, it was McDonald's fault, as proven by the several legal battles this woman won. This continuous questioning of settled arguments is absurd. They served the woman boiling hot coffee - it's simply not drinkable or safe to handle at that temperature (and shouldn't even have been brewed over 180...)

Yet she had handled it before, as had millions of other people. No, this was a case of 'who can I sue to get paid for my injury', which is an epidemic these days. That's also well known, and its disengenous (and massively naieve) to assume that winning a legal battle means you are in the right

I believe if you are recieved dangerously hot beverages(that could melt your skin) where there is no context to expect the beverage could harm you, and are injured from it, then it shouldn’t be your fault. If I ask for a glass of water from a restaurant, should I handle the glass of water as if it could give me frostbite? What if they handed me super cooled water that damaged my hand as I accidentally touched the surface as I ate food? How can it be my fault when there is no reasonable danger to be aware of?

Again, not the case in this particular instance. And further, the cup was very hot, and the lid secure. Those straw men are irrelevant - it wasn't by touching the cup that the litigant was injured. It was willfully removing the top.

How would she be at fault if there is no indication that willfully removing the top would expose liquids so hot that it would melt her skin? There is no reasonable expectation to be served coffee that will melt your skin when exposed to it.

I understand where you're coming from, but I don't think you understand the temperatures involved here. Stella was burned by 80 deg C coffee. Guess who else serves coffee this hot? Everybody. ALL good coffee shops and restaurants serve coffee in the range of 160 degrees F (71.1 degrees C) and 185 degrees F (85 degrees C). The National Coffee Association informally recommends the higher end of this range, around 80-85 deg C, and McDonalds still serves at this temperature or higher.

Anyone who drinks coffee at shops or restaurants, or makes coffee in a decent coffee maker, has experience with 80+ deg C coffee, and any reasonable person should know not to squeeze a cup of it between their legs while they take the top off, which is what Stella did.

You're not a coffee drinker are you? :) The optimum brewing temperature for coffee is 200 deg F (94 deg C), plus or minus a few degrees. This is the range recommended by professional coffee associations such as NCA and SCAA [1], and is the range used by pretty everyone, from Starbucks to your local diner. The NCA recommends that coffee be served at around 80 deg C (which is what burned Stella Liebeck); this is a perfectly reasonable service temperature, widely used by most good coffee shops and restaurants, including McDonalds to this day.

The "settled arguments", as you say, were questionable to begin with, and businesses continue to struggle with how to balance decent coffee service and protection from frivolous lawsuits. But the only thing that's really changed since Stella's lawsuit is the addition of warnings on coffee cups, just in case anyone else decides it's a good idea to squeeze a cup of hot coffee between their legs while they fiddle with the top.

1 - https://www.ncausa.org/About-Coffee/How-to-Brew-Coffee

"her grandson gunned the motor and spilled it."

Source? Everything I have read said the car was parked.

No, the coffee was not far too hot. It was served within the temperature range that was, and still is, recommended by professional coffee associations like the NCA [1]. Most good coffee establishments serve coffee in the range of 160 degrees F (71.1 degrees C) and 185 degrees F (85 degrees C). Yes, all temperatures in that range present a burn hazard. I have trouble believing that a reasonable person would assume it's safe to put a newly-served cup of hot coffee between their legs and take the lid off, which is what poor Stella did.

1 - https://www.ncausa.org/About-Coffee/How-to-Brew-Coffee

It's funny because you forget that coffee can eventually cool.

No, I think it's a bit humorous because coffee is and always has been widely known and accepted to be served piping hot, often near boiling. Same with tea and mate. If you order a pot of tea from any decent shop or restaurant, it will be served full of freshly boiled water. The closer to boiling the better. Do you think all teapots should have big warnings enameled on their sides as well? Should all knives have "WARNING: SHARP" engraved on the blades?

There’s a bag of almonds in my pantry that literally says “Contains almonds” on it in the fine print.

And cooking spray sometimes says "Fat free!" because an average 'serving' contains < 10 calories of fat. Yet its 100% fat. A spray can of fat.

Similarly, Tic Tacs are listed as containing 0 grams of sugar, despite being made of 94.5% sugar.

That being legal is insane. That has to be misleading labelling.

That's due to allergen labelling regulations. Since a lot of stuff can contain artificial almond extract or other substitutes when labeled as almond-based or flavored, the regulations don't carve out any exceptions, even when the allergen literally is the product.

Allergen labelling is a huge blessing to anyone with serious allergies. Yes, labeling A Package of Allergens with 'Contains Allergen' might feel weird, but it's critical for non-obvious ingredients and contaminants.

I don’t quite get your point. It’s bizarre and nonsensical in this case, but really useful in other cases, so...? I don’t know how that sentence ends.

So for consistency's sake it's better to just always list allergens, rather than have the regulations say "except when it's bizarre and nonsensical." Otherwise, someone has to decide where that boundary is.

I don’t think it’s really that hard to draw the line. You can still err heavily on the side of safety while not requiring a bag of nuts to warn about the nuts it contains. But our legal system doesn’t go for that sort of nuance.

Why not have a warning label? It's, what, perhaps 4 words extra?

How do you draw the line? Is the exception "if the item is exactly X and labeled exactly X then it doesn't need to contain an allergen notice for X"?

Or is it any broader? What specific knowledge should we assume that everyone knows?

If someone sees the name "milk", should they assume the product contains dairy? What about soy milk? What about peanut butter or coconut cream - do they contain dairy? Does Grape-Nuts contain grapes or nuts?

You might say that all of those should be obvious. But why make that assumption at all?

Isn't it easier to say that all products containing one or more of a given set of allergens must list those allergens? Because that's a really easy line to draw. It's clear to the producer, clear to the consumer, and clear to the legal system.

The US law on allergen labeling does actually have this nuance, but sellers probably chose to err on the side of caution. See section 203 (a) of the Food Allergen Labeling and Consumer Protection Act of 2004:

> If it is not a raw agricultural commodity...

> ...except that the name of the food source is not required when ... the common or usual name of the ingredient uses the name of the food source from which the major food allergen is derived

https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocument...

Make losing plaintiffs pay the defendant's attorney's fees and costs, it changes everything

It sure does change everything, including the locks to the courthouse doors.

> I think this legal arms race is a consequence of America's overly-litigious and profitable legal system.

I would concur with this. From the software firm's perspective, there is less risk in being overly cautious (i.e. EULAs) than to have less restrictive and open rights.

Maybe there is a need for a standard common-law contract that provides a set of 8-10 basics and then any companies have to specifically spell out what is different in their personal EULA - and the user can either accept or reject those additional terms? A true accept or reject, that is, and not just two buttons ;)

But then why are EULAs allowed in countries that are far less litigious?

Are other countries compelled to adopt the EULA for their citizens (convenient!), lobbied or pressured via free- or other trade agreements with the USA (soft/smart lobbying!), or are we, as users to blame for pressing 'accept' without any lobbying efforts of our own?

In most European countries EULAs are only valid if you are given the opportunity to read it before buying the product.

It is not legally binding to sign for something after having paid for it.

Now if the box states somewhere a kind of EULA introduction, with indication where to read the full version, then it is another matter.

Considering the many YouTube videos of exploding bottles, the warning is for the 10000 people a day learning something for the first time. What's wrong with using literacy to help people learn from the miatskes of others?

Users don't read. We have warnings in my state next to elevators that read "Ensure elevator is at this floor before entering". This is literally accurate but practically ludicrous.

The solution to problems of this nature is almost always redesign.

But users sue.

And juries award.

Corporations (and their shareholders oh god) are not poor persecuted victims. Corporations govern our lives. They should not be free to do whatever they want. With the intentional erosion of most means to settle civil disputes, the court is the last refuge for the individual against a private group. The people behind tort reform (you know who they are) don't even care about the specific "frivolous" lawsuits themselves. They care about getting rid of environmental, consumer, and worker protections in general. Because they stand in the way of profits.

> Agree. Related thought: the influence of lawyers in tech firms - witness the draconian EULAs users are 'forced' to accept with a false binary choice of accept or not

The comedy option is to print it out, cross out and initial each clause you disagree with, sign it, and mail it to them certified with a letter saying you agree under these terms please write back if they don't agree.

This actually works with all contracts of adhesion, but you will get a lot of confused looks from the flunkies.

Sounds like my kind of comedy jam!

I also like the idea of the 'Nightmare Letters' such as this one for GDPR: https://www.linkedin.com/pulse/nightmare-letter-subject-acce...

Would be of interest to note how many users have submitted such requests/letters, since GDPR took effect in May of this year.

If lawyers, and by extension, the management/C-level teams of software firms - who either direct, endorse or approve what the lawyers put in the EULAs to begin with - can stick it to users, why shouldn't users be able to stick it back to them?

I love the contract negotiation thing, but hate nightmare letters with a passion.

The case against regulation gets a lot stronger if it reliably spawns an army of trolls out for blood.

These aren't critics. These are scientists. Changing their results to suit corporate interests is a fire-able offense, and they are honor-bound to not retract unless the truth of their results are in question.

Giving overly generous Yelp reviews is fine, who cares? Publishing "generous" science as fact is morally wrong.

I'm disgusted by these high-powered law firms using thuggish tactics to try to silence critics.

The actions of Boies law firm, as documented in the book, are particularly egregious. Worse still is that Boies himself has a track record of being super tech savvy; he’s litigated against Microsoft and Google. As he was a board member at Theranos, it stretches credulity that he wasn’t more aware of the deception. Paid in equity too, how is that not a conflict of interest? How is it even legal?

How is a conflict of interest to be paid by your client to represent their interests?

It hinges on how plausible the scenario is that you can be a board member with a history of effortlessly mastering complex technical concepts, and all around you are whistleblowers asserting that the technology is a fraud, in which case your equity is worthless, and you decide that the best course of action is to abuse the legal system to intimidate them into silence. It's documented in the book that the family of one whistleblower ran up massive debts defending themselves, and a key scientist was hounded into committing suicide. It's not mentioned in the book that any of the lawyers ever wondered if maybe there might be something in all these reports.

Anyway, read the book and draw your own conclusions about the characters involved.

It creates an environment where the attorney is incentivized to protect his/her own investment in the company, above and beyond representing the company's interest and the interest of the law.

I don't think it's a conflict of interest. They got paid by Theranos for their services.

But there should be some ethics about helping clients with a lot of money bullying people with no money. Reading about the way Theranos abused whistleblowers with the help of lawyers was infuriating. The little guy simply has no chance against this unless you are willing to risk everything.

He got paid in stock. $4.5m worth if I recall from the book

I think it is ok to contact the authors of a paper if you think they got something wrong or omitted something important.

However, here it was not a scientist calling the authors, but a lawyer calling the general counsel. This is a clear hint that the call was not about correcting an error in the paper, but about bullying them and preventing the public from reading what the authors have to say.

This isn't really about the lawyers though. It's about industries getting so large and so centralized that it becomes economical to throw money (aka. lawyers) at quieting a dissenting paper.

It might not even be to try to get changes made, it might have its value in researchers thinking about how irritating and time consuming and possibly stressful it is to speak up next time.

There is nothing “thuggish” about demanding corrections of factual errors, and it’s not “gross and morally bankrupt” to engage to talk about those changes instead of waiting for the damage to be done after inaccurate facts are published. The law protects you from that. I suspect that you’re presupposing, without a basis, that the cited errors are not errors but rather unflattering characterizations.

In any scientists-vs-lawyers battle I would be more than happy to let the scientists publish before the lawyers get to have their say. It is possible that this is a complaint on merits but given the past performance of the legal profession in situations like these the chances are much better than even that they are protecting some commercial interest rather than that they are suddenly interested in accurate and factual reporting by scientists.

The lawyers work for the clients, which in this case are other doctors.

That is not an accurate description of the situation as far as I can see it. The one group of doctors is a bunch of researchers, the other group is a large corporate entity that makes gobs of money from certain products.

> Dr. Matt Leavitt heads Advanced Dermatology and Cosmetic Surgery, the largest dermatology practice in the United States, which is backed by private equity. It is one of the practices that objected to the article.

It is the head of a private equity backed business. That he also happens to be a dermatologist is not the key - unless you think he would have complained if he were only a dermatologist and not a big-business owner?

From the NY article:

> Eight days later, after an outcry from private equity executives and dermatologists associated with private equity firms

So the complained is from business people. If any of them also happens to be a dermatologist that does not seem to be the key, they don't complain about anything medical. That's because the paper was

> a research paper on its website that analyzed the effects of a business trend roiling the field of dermatology

It was about business, not about medical issues.

I recommend you read the NY Times article.

So the guy graduated a Dr. That does not presently make him a doctor other than in the legal sense. For all practical purposes in this dispute he is a businessman that sees his revenue stream endangered and moves to protect it using the law. This has absolutely nothing to do with two doctors arguing over 'who is right' or 'what is true'.

>> I'm disgusted by these high-powered law firms...

It's not the lawyers so much as the private equity folks who hired them. Asking lawyers to forego business on [subjective] moral grounds is similar to doing so for engineers - like recent refusals to work on government projects. Some will, some won't.

This is the moral equivalent of "I was just following orders." You always have a choice whether to engage in unethical behavior, and subverting the scientific process certainly qualifies as such.

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