FORMAL JUDICIAL MISCONDUCT COMPLAINT AGAINST JUDGE DU FOR VIOLATING CANON 3A(6) HAS BEEN FILED TODAY. Expect it to take 14-21 days to be processed and docketed.
I am not fooling around. I say what I mean, and mean what I say.
MICHAEL S. KASANOFF, LLC
ATTORNEY AT LAW
157 BROAD STREET, SUITE 321
P.O. BOX 8175
RED BANK, NJ 07701
PHONE: (908) 902-5900
FAX: (732) 741-7528
E-MAIL: mkasanoff@att.net
REPLY TO P.O. BOX 8175
May 20, 2020
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Judicial Council of the Ninth Circuit
Attn: Judicial Misconduct
P.O. Box 193939
San Francisco, CA 94119
Re: In the Matter of the Honorable Miranda M. Du, U.S.D.J.
COMPLAINT OF MISCONDUCT
Dear Sir/Madam:
I am submitting a formal Complaint of Misconduct for violating Canon 3A(6) of the Code of Conduct for United States Judges, against the Honorable Miranda M. Du, U.S.D.J., who is the Chief Judge for the District of Nevada. Please note that this Complaint of Misconduct is not being submitted on behalf of, or with any endorsement from, Amarin Pharma, Inc., but is being submitted exclusively on behalf of myself. Pursuant to Local Rule 6.1(e), enclosed is an original and one copy of the Complaint, Statement of Facts, and Exhibits.
1. Name of Complainant: Michael S. Kasanoff, Esq.
Contact Address: 157 Broad Street, Suite 321,
P.O. Box 8175
Red Bank, NJ 07701
Daytime telephone: (908) 902-5900
2. Name(s) of Judge(s) Honorable Miranda M. Du, U.S.D.J.
Court: District of Nevada
3. Does this complaint concern the behavior of the judge(s) in a particular lawsuit or lawsuits?
[X] Yes [ ] No
If “yes”, give the following information about each lawsuit:
Court: District of Nevada
Case Number: 2:16-cv-02525 (MMD) (NJK)
Amarin Pharma, Inc. v. Hikma
Pharmaceuticals, USA, Inc., et. al.
Docket number of any appeal to the Federal Circuit: 20-1723
Are (were) you a party or lawyer in the lawsuit?
[ ] Party [ ] Lawyer [X] Neither
If you are (were) a party and have (had) a lawyer, give the lawyer’s name, address, and telephone number:
Not applicable
4. Have you filed any lawsuits against the judge?
[ ] Yes [X] No
If “yes”, give the following information on each such lawsuit:
Court: Not applicable
Case Number: Not applicable
Present status of lawsuit: Not applicable
Name, address, and telephone number of your lawyer for the lawsuit against the judge:
Not applicable
Court to which any appeal has been taken in the lawsuit against the judge:
Not applicable
Docket Number of the appeal: Not applicable
Present status of the appeal: Not applicable
5. Brief Statement of Facts (1198 Words)
I. SUMMARY OF THE COMPLAINT OF MISCONDUCT
If a Judge’s public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality which would violate Canon 2A. Canon 3A(6) (Comment). In the May, 2020 issue of the Nevada Lawyer, Judge Du stated how she gets “tutored on varied technical issues involved in patent cases such as learning . . . . the benefits of fish oil.” (emphasis added) (Exhibit “A”).
The scientific evidence indisputably establishes that Vascepa is a refined, purified FDA approved prescription medication providing substantial, documented cardiovascular health benefits while fish oil is essentially garbage which provides no documented cardiovascular health benefits. (Statement of Facts, ¶5-¶12; Exhibit “B”). By making this comment, Judge Du essentially trade labeled Amarin, and its flagship product, Vascepa, thereby violating Canon 3A(6), as interpreted by the Comment.
II. STATEMENT OF FACTS
A. Judge Du’s Verdict
1. On March 30, 2020, after presiding over a month-long bench trial in January, 2020, Judge Du, entered a verdict where she ruled that the Amarin patents at issue in the case, are invalid on grounds of obviousness. That ruling is currently on appeal before the Federal Circuit Court of Appeals.
2. In the immediate aftermath of this shocking ruling, Amarin lost billions of dollars in market cap, and the stock plummeted, losing 70% of its value, devastating both the company and its shareholders.
B. The May, 2020 Nevada Lawyer Interview
3. In an interview published in the May, 2020 issue of the Nevada Lawyer, Judge Du, one of the Nevada District’s three specially designated patent judges, describes how she enjoys her work on patent cases, “I get tutored on varied technical issues involved in patent cases such as learning how tasers work or the benefits of fish oil.” (emphasis added) (Exhibit “A”).
4. The reporter who conducted the interview, Jennifer Smith-Pulsipher, can confirm that the interview took place in February, 2020, after the bench trial concluded on January 31, 2020, but prior to the verdict on March 30, 2020.
C. Vascepa vs. Fish Oil
5. As stated on Amarin’s web site in the section entitled, “The Vascepa Difference”(Exhibit “B”), “Vascepa is the first and only prescription EPA treatment approved by the FDA to lower very high triglycerides.” “Vascepa is now approved, along with certain medicines (statins), to reduce the risk of heart attack, stroke, and certain types of heart issues requiring hospitalization in adults with heart (cardiovascular) disease, or diabetes and 2 or more risk factors for heart disease.”
6. “Prescription medications are clinically proven and FDA-approved to treat medical conditions. They follow strict manufacturing and regulatory standards, are only prescribed by a doctor, and are purchased at a pharmacy.”
7. “Dietary supplements such as common fish oils and Omega-3s are not FDA-approved.” (emphasis added). It’s important to know that they are not intended nor proven safe or effective to treat patients with medical conditions such a very high triglycerides.”
8. “Most unproven fish oil supplements contain DHA, an Omega-3, which can raise bad cholesterol (LDL-C).” (emphasis added). Prescription EPA Vascepa has “no DHA; and Vascepa was shown not to raise bad cholesterol (LDL-C).”
9. Common fish oil is “not FDA-approved to treat medical conditions, including very high triglycerides.” (emphasis added). Vascepa is “FDA-approved and clinically proven to lower very high triglycerides.”
10. In terms of daily dose, Common fish oil “may take up to 10-40 capsules to equal the EPA in a daily dose of Vascepa.” (emphasis added). The Vascepa daily dose is “two 1-gram capsules twice a day.”
11. Common fish oil is “reported to have fishy taste or cause fishy burps.” (emphasis added). Vascepa has “no fishy burps taking four grams per day of Vascepa in a clinical trial.”
12. Common fish oil is “prone to deterioration” as the “fishy smell suggests chemical change and may be covered up by an added scent or flavor.” (emphasis added). Vascepa has “proven stability” and “demonstrated multi-year stability [preserves full effect].”
III. APPLICABLE LAW - CODE OF CONDUCT FOR UNITED STATES JUDGES
1. The Code of Conduct for United States Judges includes the ethical canons that apply to federal judges and provides guidance on their performance of official duties and engagement in a variety of outside activities.
2. Canon 3 provides that a “Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently.” Canon 3A governs “Adjudicative Responsibilities”. The Canon at issue, Canon 3A(6) provides, “A Judge should not make public comment on the merits of a matter pending or impending in any court.”
3. Canon 3A(6) is clarified in the Comment which provides, “The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality which would violate Canon 2A.” (emphasis added). (Canon 2A, entitled “Respect for the Law”, provides that a “judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
IV. JUDGE DU’S “FISH OIL” REMARK IN THE MAY, 2020 NEVADA LAWYER
INTERVIEW VIOLATES CANON 3A(6) AS INTERPRETED BY THE COMMENT
The subject trial involved several days of expert testimony and over 2000 exhibits. The Stipulated Facts in the Final Pretrial Order stipulate that Vascepa is a “pharmaceutical composition” consisting of at least 96% pure EPA. (See Final Pretrial Order, page 22-23, ¶169-¶174)(Exhibit “C”). The scientific evidence indisputably establishes that Vascepa is a refined, purified FDA approved prescription medication providing substantial, documented cardiovascular health benefits while fish oil is essentially garbage which provides no documented cardiovascular health benefits. (See Statement of Facts, ¶5-¶12).
Judge Du knew or should have known all of this, yet she publicly proclaims that she learned about the “benefits of fish oil”, even though fish oil is documented to have no benefits, and even though Vascepa is indisputably distinct from fish oil. If after being exposed to all of the above, Judge Du still thinks of Vascepa as mere “fish oil”, then the public confidence in Judge Du’s impartiality would most certainly be denigrated in the eyes of any reasonable person with even the most rudimentary understanding of the facts surrounding Vascepa and the underlying case.
This is especially cogent when evaluated in the context of the Canon 3A(6) Comment’s admonition that a Judge’s public comments concerning cases in her own court, are subject to enhanced scrutiny so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality. Judge Du’s reckless comment is probative of the perception that she either did not understand the case, or she simply did not pay attention while rendering an arbitrary, destructive judgment based upon pre-conceived notions about “fish oil”, rather than impartial evaluation of the evidence as she is duty bound to do. Judge Du has therefore violated Canon 3A(6), as clarified and placed in context by the Comment.
6. Acknowledgment, declaration and signature:
I understand that even if I successfully prove that the judge engaged in misconduct or is disabled, this procedure cannot change the outcome of the underlying case.
I, declare under penalty of perjury that the statements made in this complaint are true and correct to the best of my knowledge.
(Signature) S/Michael S. Kasanoff (Date) 05/20/2020
Respectfully submitted,
Michael S. Kasanoff
Michael S. Kasanoff
