Brief for Plaintiff-Appellee, Carroll v. Trump, No. 20-3977 (2nd Cir. Apr. 16, 2021)

Introduction In June 2019, E. Jean Carroll revealed that former President Donald J. Trump had sexually assaulted her decades earlier. Trump denied it, saying he did not know who Carroll was and had never met her. But he did not stop there. He launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot. None of this was true. Trump knew that he had assaulted Carroll. He knew who she was. And he knew what he was doing when he went on a defamation rampage designed to crush her— to punish and retaliate against her—for daring to reveal his decades-old crime. Faced with this staggering onslaught, Carroll sought relief in court and sued Trump for defamation. Her case proceeded in New York state court for ten months. Trump did everything he could to stall, but his efforts ultimately failed. Just as the parties were about to engage in merits discovery, the White House prevailed upon the Department of Justice (DOJ) to intercede. Following a certification under the Westfall Act, 28 U.S.C. § 2679(d), DOJ lawyers removed the case to federal court and sought to substitute the United States as the defendant. They took the position that Trump was just doing his job—i.e., that he was acting within the scope of his employment—when he repeatedly slandered a private citizen who was no longer willing to hide the fact that he had raped her long before taking office. On two separate grounds, Judge Kaplan denied DOJ’s motion to substitute. He first held that the statute invoked by DOJ in support of substitution—the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, as amended by the Westfall Act—does not apply to the President. That conclusion is compelled by the FTCA’s text and structure, as well as a host of constitutional, legislative, and judicial authorities, all of which confirm that the FTCA does not apply to the President. On appeal, DOJ (joined by Trump) seeks to show otherwise, but their arguments make a mess of the statute and offend settled separation-of-powers principles. In the alternative, Judge Kaplan concluded Trump was not acting within the scope of his employment when he defamed Carroll. This commonsense conclusion follows directly from the evidence before the Court and from longstanding principles of respondeat superior liability. On appeal, DOJ and Trump offer no basis to disturb that finding. Indeed, there is almost nothing in their briefs that discusses the facts at all. Instead, they urge the Court to adopt a new rule that would create categorical immunity for any federal official who defames anyone while speaking to the press or responding to perceived critics. That rule is both wrong and dangerous, and this Court should reject Appellants’ effort to avoid answering for Trump’s conduct. “Public office does not carry with it a license to defame at will, for even the highest officers exist to serve the public, not to denigrate its members.” Clark v. McGee, 49 N.Y.2d 613, 618-19 (1980). If accepted, Appellants’ extreme position would distort precedent, dishonor the Office of the Presidency, and give succor to the view that our most powerful political leaders stand entirely above the law. This Court should therefore affirm the denial of DOJ’s motion to substitute. Statement of the issues: 1. Is the President an “employee of the government” as that term is defined in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671? 2. Assuming the President is an “employee of the government” under the FTCA, did Donald J. Trump act within the scope of his employment when he subjected E. Jean Carroll to willful, outrageous defamatory attacks in retaliation for revealing that he had sexually assaulted her decades before he was elected President

Viloxazine in the Treatment of Attention Deficit Hyperactivity Disorder

Attention deficit hyperactivity disorder (ADHD) is the most common neurodevelopmental disorder in children. Over the past twenty years, research on the disease and its characteristics and treatment options has grown exponentially. The first-line pharmacologic treatment of ADHD is stimulants, which have a response rate of ~70%. With the support of four phase 3 studies involving more than 1,000 pediatric patients 6–17 years old, the FDA has approved the non-stimulant, serotonin-norepinephrine modulating agent (SNMA) viloxazine in an extended-release capsule (viloxazine ER) for treatment of ADHD in children aged 6–17. Viloxazine modulates serotonergic activity as a selective 5-HT22B receptor antagonist and 5-HT2C receptor agonist and moderately inhibits norepinephrine transporter (NET), thus blocking the reuptake of norepinephrine. A phase 2 study by Johnson et al. found that once-daily dosing of viloxazine ER in 200, 300, or 400 mg dosages in children with ADHD for eight weeks resulted in a statistically significant reduction of ADHD-RS-IV total score. A post hoc analysis of data from four phase 3, randomized, placebo-controlled, double-blind, three-arm, clinical trials by Faraone et al. found that early response to viloxazine treatment, defined as a change in ADHD-RS-5 total score at week 2, best predicted the treatment response at week 6 [75% positive predictive power (PPP), 75% sensitivity]. Proper treatment of the symptoms and comorbidities associated with ADHD is crucial in improving a patient\u27s quality of life, cognitive function, and overall therapeutic outcomes. Viloxazine\u27s mechanism of action, clinical effects, and limited side effect profile point toward the drug\u27s relevance in the treatment of ADHD

Missed Opportunities: Family History and Behavioral Risk Factors in Breast Cancer Risk Assessment Among a Multiethnic Group of Women

BACKGROUND: Clinician’s knowledge of a woman’s cancer family history (CFH) and counseling about health-related behaviors (HRB) is necessary for appropriate breast cancer care. OBJECTIVE: To evaluate whether clinicians solicit CFH and counsel women on HRB; to assess relationship of well visits and patient risk perception or worry with clinician’s behavior. DESIGN: Cross-sectional population-based telephone survey. PARTICIPANTS: Multiethnic sample; 1,700 women from San Francisco Mammography Registry with a screening mammogram in 2001–2002. MEASUREMENTS: Predictors: well visit in prior year, self-perception of 10-year breast cancer risk, worry scale. Outcomes: Patient report of clinician asking about CFH in prior year, or ever counseling about HRB in relation to breast cancer risk. Multivariate models included age, ethnicity, education, language of interview, insurance/mammography facility, well visit, ever having a breast biopsy/follow-up mammography, Gail-Model risk, Jewish heritage, and body mass index. RESULTS: 58% reported clinicians asked about CFH; 33% reported clinicians ever discussed HRB. In multivariate analysis, regardless of actual risk, perceived risk, or level of worry, having had a well visit in prior year was associated with increased odds (OR = 2.3; 95% CI 1.6, 3.3) that a clinician asked about CFH. Regardless of actual risk of breast cancer, a higher level of worry (OR = 1.9; 95% CI 1.4, 2.6) was associated with increased odds that a clinician ever discussed HRB. CONCLUSIONS: Clinicians are missing opportunities to elicit family cancer histories and counsel about health-related behaviors and breast cancer risk. Preventive health visits offer opportunities for clinicians to address family history, risk behaviors, and patients’ worries about breast cancer

Testing Human Sperm Chemotaxis: How to Detect Biased Motion in Population Assays

Biased motion of motile cells in a concentration gradient of a chemoattractant is frequently studied on the population level. This approach has been particularly employed in human sperm chemotactic assays, where the fraction of responsive cells is low and detection of biased motion depends on subtle differences. In these assays, statistical measures such as population odds ratios of swimming directions can be employed to infer chemotactic performance. Here, we report on an improved method to assess statistical significance of experimentally determined odds ratios and discuss the strong impact of data correlations that arise from the directional persistence of sperm swimming

Quantifying the Spatial Ecology of Wide-Ranging Marine Species in the Gulf of California: Implications for Marine Conservation Planning

There is growing interest in systematic establishment of marine protected area (MPA) networks and representative conservation sites. This movement toward networks of no-take zones requires that reserves are deliberately and adequately spaced for connectivity. Here, we test the network functionality of an ecoregional assessment configuration of marine conservation areas by evaluating the habitat protection and connectivity offered to wide-ranging fauna in the Gulf of California (GOC, Mexico). We first use expert opinion to identify representative species of wide-ranging fauna of the GOC. These include leopard grouper, hammerhead sharks, California brown pelicans and green sea turtles. Analyzing habitat models with both structural and functional connectivity indexes, our results indicate that the configuration includes large proportions of biologically important habitat for the four species considered (25–40%), particularly, the best quality habitats (46–57%). Our results also show that connectivity levels offered by the conservation area design for these four species may be similar to connectivity levels offered by the entire Gulf of California, thus indicating that connectivity offered by the areas may resemble natural connectivity. The selected focal species comprise different life histories among marine or marine-related vertebrates and are associated with those habitats holding the most biodiversity values (i.e. coastal habitats); our results thus suggest that the proposed configuration may function as a network for connectivity and may adequately represent the marine megafauna in the GOC, including the potential connectivity among habitat patches. This work highlights the range of approaches that can be used to quantify habitat protection and connectivity for wide-ranging marine species in marine reserve networks

Shared genetic risk between eating disorder- and substance-use-related phenotypes:Evidence from genome-wide association studies

First published: 16 February 202

Brief for Plaintiff-Appellee, Carroll v. Trump, No. 20-3977 (2nd Cir. Apr. 16, 2021)

Introduction In June 2019, E. Jean Carroll revealed that former President Donald J. Trump had sexually assaulted her decades earlier. Trump denied it, saying he did not know who Carroll was and had never met her. But he did not stop there. He launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot. None of this was true. Trump knew that he had assaulted Carroll. He knew who she was. And he knew what he was doing when he went on a defamation rampage designed to crush her— to punish and retaliate against her—for daring to reveal his decades-old crime. Faced with this staggering onslaught, Carroll sought relief in court and sued Trump for defamation. Her case proceeded in New York state court for ten months. Trump did everything he could to stall, but his efforts ultimately failed. Just as the parties were about to engage in merits discovery, the White House prevailed upon the Department of Justice (DOJ) to intercede. Following a certification under the Westfall Act, 28 U.S.C. § 2679(d), DOJ lawyers removed the case to federal court and sought to substitute the United States as the defendant. They took the position that Trump was just doing his job—i.e., that he was acting within the scope of his employment—when he repeatedly slandered a private citizen who was no longer willing to hide the fact that he had raped her long before taking office. On two separate grounds, Judge Kaplan denied DOJ’s motion to substitute. He first held that the statute invoked by DOJ in support of substitution—the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, as amended by the Westfall Act—does not apply to the President. That conclusion is compelled by the FTCA’s text and structure, as well as a host of constitutional, legislative, and judicial authorities, all of which confirm that the FTCA does not apply to the President. On appeal, DOJ (joined by Trump) seeks to show otherwise, but their arguments make a mess of the statute and offend settled separation-of-powers principles. In the alternative, Judge Kaplan concluded Trump was not acting within the scope of his employment when he defamed Carroll. This commonsense conclusion follows directly from the evidence before the Court and from longstanding principles of respondeat superior liability. On appeal, DOJ and Trump offer no basis to disturb that finding. Indeed, there is almost nothing in their briefs that discusses the facts at all. Instead, they urge the Court to adopt a new rule that would create categorical immunity for any federal official who defames anyone while speaking to the press or responding to perceived critics. That rule is both wrong and dangerous, and this Court should reject Appellants’ effort to avoid answering for Trump’s conduct. “Public office does not carry with it a license to defame at will, for even the highest officers exist to serve the public, not to denigrate its members.” Clark v. McGee, 49 N.Y.2d 613, 618-19 (1980). If accepted, Appellants’ extreme position would distort precedent, dishonor the Office of the Presidency, and give succor to the view that our most powerful political leaders stand entirely above the law. This Court should therefore affirm the denial of DOJ’s motion to substitute. Statement of the issues: 1. Is the President an “employee of the government” as that term is defined in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671? 2. Assuming the President is an “employee of the government” under the FTCA, did Donald J. Trump act within the scope of his employment when he subjected E. Jean Carroll to willful, outrageous defamatory attacks in retaliation for revealing that he had sexually assaulted her decades before he was elected President

Acceptability of an mHealth breast cancer risk-reduction intervention promoting risk assessment, education, and discussion of risk in the primary care setting

BackgroundBreast cancer risk assessment tools and risk reduction strategies have advanced significantly over the past few decades but are underutilized in practice, due in part to limited acceptability by patients and physicians. We implemented a tablet-based Breast Cancer Risk Education Intervention (BreastCARE) tailored towards increasing patients' knowledge about their individual risk of developing breast cancer, increasing patient-physician discussion of breast cancer risk reduction practices, and increasing participation in recommended screening.MethodsWe surveyed patients and physicians who received the BreastCARE intervention and analyzed their satisfaction and acceptability of the intervention. We compared patient satisfaction measures by race/ethnicity and used multivariable logistic regression models to examine the effect of race/ethnicity on measures of patient satisfaction with the tablet-based risk assessment and with the breast cancer risk report. We also compared measures of physician satisfaction by resident vs. attending/NP status. Finally, we identified patients' and physicians' suggestions for implementation.ResultsOverall, both patients and physicians were highly satisfied with BreastCARE, with some variation by patient race/ethnicity and breast cancer risk status. The risk assessment tool and accompanying risk report helped transmit complex information in an efficient way.ConclusionsPatient self-administered risk assessment with a health education component at the point of care is acceptable for both patients and physicians, and represents a novel approach to facilitating health promotion. This risk assessment tool should be made routine in primary care accompanied by results that are easy for the patient to understand and actionable for the clinician

Perceived versus objective breast cancer risk in diverse women.

BackgroundPrior research suggests that women do not accurately estimate their risk for breast cancer. Estimating and informing women of their risk is essential for tailoring appropriate screening and risk reduction strategies.MethodsData were collected for BreastCARE, a randomized controlled trial designed to evaluate a PC-tablet based intervention providing multiethnic women and their primary care physicians with tailored information about breast cancer risk. We included women ages 40-74 visiting general internal medicine primary care clinics at one academic practice and one safety net practice who spoke English, Spanish, or Cantonese, and had no personal history of breast cancer. We collected baseline information regarding risk perception and concern. Women were categorized as high risk (vs. average risk) if their family history met criteria for referral to genetic counseling or if they were in the top 5% of risk for their age based on the Gail or Breast Cancer Surveillance Consortium Model (BCSC) breast cancer risk model.ResultsOf 1,261 participants, 25% (N=314) were classified as high risk. More average risk than high risk women had correct risk perception (72% vs. 18%); 25% of both average and high risk women reported being very concerned about breast cancer. Average risk women with correct risk perception were less likely to be concerned about breast cancer (odds ratio [OR]=0.3; 95% confidence interval [CI]=0.2-0.4) while high risk women with correct risk perception were more likely to be concerned about breast cancer (OR=5.1; 95%CI=2.7-9.6).ConclusionsMany women did not accurately perceive their risk for breast cancer. Women with accurate risk perception had an appropriate level of concern about breast cancer. Improved methods of assessing and informing women of their breast cancer risk could motivate high risk women to apply appropriate prevention strategies and allay unnecessary concern among average risk women

An Intervention Tool to Increase Patient–Physician Discussion of Lifestyle Risk Factors for Breast Cancer

Background: Risk assessment and discussion of lifestyle in primary care are crucial elements of breast cancer prevention and risk reduction. Our objective was to evaluate the impact of a breast cancer risk assessment and education tool on patient-physician discussion of behaviors and breast cancer risk. Materials and Methods: We conducted a randomized controlled trial with an ethnically and linguistically diverse sample of women, ages 40-74, from two primary care practices. Intervention participants completed a tablet computer-based Breast Cancer Risk Assessment and Education (BreastCARE) intervention in the waiting room before a scheduled visit. Both patients and physicians received an individualized risk report to discuss during the visit. Control patients underwent usual care. Telephone surveys assessed patient-physician discussion of weight, exercise, and alcohol use 1 week following the visit. Results: Among the 1235 participants, 27.7% (161/580) intervention and 22.3% (146/655) usual-care patients were high risk for breast cancer. Adjusting for clustering by physician, the intervention increased discussions of regular exercise (odds ratios [OR] = 1.94, 1.50-2.51) and weight (OR = 1.56, 1.23-1.96). There was no effect of the intervention on discussion of alcohol. Women with some college education were more likely to discuss their weight than those with high school education or less (OR = 1.75, 1.03-2.96). Similarly, non-English speakers were more likely to discuss their weight compared with English speakers (OR = 2.33, 1.04-5.22). Conclusions: BreastCARE is a feasible risk assessment tool that can successfully promote discussions about modifiable breast cancer risk factors between patients and primary care physicians