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Denise C. WILKINS, Individually and as Personal Representative of the Estate of Justin Lamar Davis, Plaintiff–Appellant, v. Vicki MONTGOMERY, Director, Central State Hospital, in her individual and official capacities, Defendant–Appellee, Central State Hospital; The Commonwealth of Virginia; Unidentified Employees of Central State Hospital, in their individual and official capacities, Defendants.
Appellant Denise C. Wilkins ("Appellant") appeals the district court's orders striking her expert witness; denying her second motion to amend her complaint; and granting summary judgment to Appellee Vicki Montgomery, Assistant Director for Clinical Administration at Central State Hospital. Appellant brought this action against Montgomery after her son, Justin Lamar Davis, was murdered by another patient at Central State Hospital. She filed three claims: grossly negligent supervision, gross negligence under the Virginia Wrongful Death Act, and a 42 U.S.C. § 1983 claim for supervisory liability.
The district court struck Appellant's expert witness because he was disclosed in an untimely fashion; denied Appellant's second motion to amend her complaint to add two defendants because such amendment would be futile; and finally, concluded there was insufficient evidence to support the claims against Montgomery, who was an assistant director in charge of administrative matters at the time of Davis's death. For the reasons set forth below, we affirm.
On January 5, 2010, Justin Lamar Davis was transferred to Central State Hospital ("CSH"), an inpatient facility providing treatment for patients with mental illnesses who are referred by the court system. On February 16, 2010, George Phillips was admitted to CSH while waiting to be prosecuted for attempted capital murder. Both Phillips and Davis were housed in the forensic unit, Ward 39–8.
CSH had a policy whereby staff would issue 24–hour reports (also called "Administrator On Duty" or "AOD" reports) regarding patient activity. See J.A. 355–68.1 AOD reports during the week of February 21, 2010, reflect that Davis struck a staff member in the face and hit another patient. On February 24, 2010, Phillips reported feeling threatened by Davis, and Phillips stated he "will not give [Davis] another warning and he will end up flying out of here in a helicopter to a hospital." Id. at 362. Phillips told the staff that he "could get a pen out of a staff's pocket if he wanted and harm [him]self or anyone else." Id.
The next day, on February 25, 2010, Phillips and Davis had an altercation in the gymnasium. Phillips attacked Davis from behind, but Davis was not injured. The AOD report, which was issued the following day on February 26, explained that Davis "feels others want to harm him and wanted to be moved off the unit." J.A. 365. It also stated that Dr. Sridhar Yaratha, the psychiatrist on Davis's treatment team at CSH, was "aware" of Davis's desire to move. Id. In addition, the report stated that after the altercation, Phillips told staff "he was tired of Mr. Davis and that he could have easily snapped his neck." Id. On the evening and night of February 25, Phillips was "monitored constantly by staff and behavior documented [on] every shift." Id. Indeed, on that day, and for at least one week prior, Phillips was on suicide observation status ("SOS"), violence observation status ("VOS"), and escape observation status ("EOS"), which required "15 minute[ ] monitoring checks by assigned staff." Id. at 356, 373.
On February 27, 2010, Davis was also on VOS and also required 15 minute checks. The charge nurse, Lawrence Harris, assigned to Essence Thompson, Forensic Mental Health Technician, the duty of carrying out the 15 minute checks that night. However, rather than conducting the required checks, both Harris and Thompson were watching television in a nearby room. Between 9:36 p.m. and 9:56 p.m. that night, Phillips left his room, entered Davis's room, and proceeded to strangle Davis to death in his bed. It was not until the following morning, February 28, that another staff member discovered that Davis was dead.
An investigation by the hospital concluded that "[s]taff [n]eglect" led to Davis's murder, and found that "Thompson ․ remained seated in the chair directly facing the television" on the night of Davis's death, which "provided [ ] Phillips the opportunity to do serious harm to [ ] Davis." J.A. 377. In addition, the hospital report concluded Harris "failed to provide the necessary supervision and leadership required to ensure [ ] Thompson was at her assigned monitoring post and carrying out her assigned duties. Instead, Mr. Harris sat one seat from [ ] Thompson directly facing the television." Id.
Exactly two years after Davis's death, February 27, 2012, Appellant—Davis's mother—filed suit against CSH, the Commonwealth of Virginia, Vicki Montgomery ("Appellee"), and "Several as of Yet Unidentified Employees of [CSH]."2 See Wilkins v. Cent. State Hosp., No. 3:12–cv–00152–JAG (E.D.Va. Feb. 27, 2012), ECF No. 1. The original complaint contained three counts: wrongful death based on gross negligence, grossly negligent supervision, and a 42 U .S.C. § 1983 claim for supervisory liability.
On April 4, 2012, Appellant filed the First Amended Complaint ("FAC"). In the FAC, Appellant dropped the state defendants, and the only defendants remaining were Appellee (in her individual and official capacity), who was incorrectly listed as "director" of the CSH, and "Several as of Yet Unidentified Employees of [CSH]." J.A. 9. The FAC contained the same three counts and allegations as the original complaint.
On April 11, 2012, Appellee filed a motion to dismiss, but withdrew that motion on May 4, 2012, when she filed a motion for summary judgment. In the motion for summary judgment, Appellee argued that because she was not director of CSH at the time of Davis's death, she had no supervisory responsibility or authority over any security personnel, treatment staff, or medical staff.
The district court entered a pre-trial order and set the trial date for February 19, 2013. Appellant's Rule 26(a)(2) expert disclosures were to be produced by October 22, 2012; however, this deadline was moved back to November 21, 2012, by agreement of the parties. The deadline for motions challenging experts was December 21, 2012. On November 21, Appellant provided the name of her purported expert witness, Dr. Pogos H. Voskanian, along with a curriculum vitae, but no written report. Almost two weeks after the November 21 deadline for Rule 26 disclosures—which had been agreed to by Appellant—on December 4, 2012, Appellant disclosed what she called a "preliminary report" by Dr. Voskanian.3 The preliminary report, as its name suggests, was only one page and simply contained a list of the materials the expert reviewed, and two sentences of opinion:
Based on review of the above listed documents, it is my opinion to a reasonable degree of medical certainty that the care and treatment provided to Mr. Justin Lamar Davis fell substantially below an acceptable standard of care. Administration of the hospital failed to provide adequate services and supervision; and members of the treatment team failed to provide adequate monitoring, safety and treatment, amounting to deliberate indifference to the patient's needs and premature death of Mr. Justin Davis.
On December 13, 2012, Appellee filed a renewed motion for summary judgment and a motion to exclude Appellant's expert witness. On December 21, 2012—now one month after the expert disclosure date agreed to by Appellant, and on the court's deadline for filing motions to exclude experts—Appellant filed an additional, nine-page expert report by Dr. Voskanian.
The district court held a motions hearing on February 7, 2013, and granted the motion to exclude Dr. Voskanian the following day. See J.A. 268–70 (the "February 8 Order"). Appellant then filed a Rule 59 motion to alter or amend the February 8 Order.
In the meantime, on December 27, 2012, Appellant filed a motion for leave to file a second amended complaint. She sought only to add as defendants Dr. Charles Davis—the actual director of CSH at the time Davis was murdered—and Dr. Yaratha.
On April 10, 2013, the district court held a hearing on the remaining outstanding motions, including the motion to amend. The court ruled from the bench, granting the motion for summary judgment, and denying the motion to amend the complaint and the Rule 59 motion to alter or amend its order excluding Dr. Voskanian. A formal order issued the following day. See J.A. 663 (the "April 11 Order").
Appellant filed a timely notice of appeal of the February 8 and April 11 Orders.
We review the district court's exclusion of a plaintiff's expert witness, its denial of a motion to amend the complaint, and its ruling on a Rule 59 motion to alter or amend for abuse of discretion. See S. States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 595 (4th Cir.2003); Laber v. Harvey, 438 F.3d 404, 428 (4th Cir.2006); Sloas v. CSX Transp., Inc., 616 F.3d 380, 388 (4th Cir.2010). As to the motion to amend the complaint, we review the district court's analysis of the law regarding relation back de novo. See Locklear v. Bergman & Beving AB, 457 F.3d 363, 365 (4th Cir.2006).
We review the district court's grant of summary judgment de novo. See Pisano v. Strach, 743 F.3d 927, 932 (4th Cir.2014). Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute exists
if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. In considering a motion for summary judgment, the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. The plaintiff is entitled to have the credibility of all his evidence presumed. The party seeking summary judgment has the initial burden to show absence of evidence to support the nonmoving party's case. The opposing party must demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials.
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (internal citations omitted).
We first discuss Appellant's challenge to the district court's exclusion of her expert, Dr. Voskanian. This issue implicates both the February 8 Order excluding Dr. Voskanian, and the portion of the April 11 Order denying Appellant's Rule 59 motion to alter or amend the February 8 Order.
At the February 7 motions hearing, the district court ruled as follows:
The expert will be excluded. You just can't—if we were to allow him to testify it would just turn everything that is in the pretrial order on its head. Let me just say that I think the question of deliberate indifference, if that is the standard used in this case, is one you can argue to the jury based on what the administrators knew and when they knew it. I don't think you need an expert on that.
J.A. 558. At the April 10 hearing, regarding the Rule 59 motion, the district court stated,
Th[e] motion [to alter or amend the February 8 Order] will be denied ․, for two reasons. First, the plaintiff was just way late in naming an expert in this case. And I know how hard it is to find experts for cases like this. But we have those deadlines so we can move in an orderly fashion. And the lateness with which the expert was identified would not allow that to happen. Second, the expert witness' report is pretty much a brief of legal conclusions in the case, and I don't think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case.
Id. at 661.
The Pre–Trial Order in this case stated, "The parties will disclose the information required under Rule 26(a)(2) on the following schedule: Party with the burden of proof on an issue by October 22, 2012," which was later moved to November 21, 2012, by consent of the parties. Wilkins v. Cent. State Hosp., No. 3:12–cv–00152 (E.D. Va. filed Aug. 21, 2012), ECF No. 26 at 2 (pre-trial order); see also id. ECF No. 30 (filed Oct. 25, 2012) (order granting consent motion to amend pre-trial order).
Federal Rule of Civil Procedure 26(a)(2) provides,
[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705․ Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case[.]
Fed.R.Civ.P. 26(a)(2)(A), (B) (emphasis supplied). Furthermore, "[a] party must make these disclosures at the time and in the sequence the court orders." Fed.R.Civ.P. 26(a)(2)(D) (emphases supplied). Therefore, because Appellant did not disclose the written report by the agreed-upon deadline, she necessarily violated the Pre–Trial Order and Rule 26(a)(2).
In light of this violation, we cannot say the district court abused its discretion in excluding Dr. Voskanian as an appropriate sanction. Rule 37(c)(1) provides,
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Fed.R.Civ.P. 37(c)(1). This court has explained,
Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent's ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court's management of the case. For this reason, "we give particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1)."
Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278–79 (4th Cir.2005) (quoting S. States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 595 (4th Cir.2003)) (alteration omitted); see also S. States, 318 F.3d at 592 n. 2 ("The Rule 37(c) advisory committee notes emphasize that the 'automatic sanction' of exclusion 'provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence.' " (quoting Fed.R.Civ.P. 37(c) advisory committee note, 1993 Amendment) (emphasis supplied)).4
In Southern States, we elaborated,
The language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclose: (1) when the failure to disclose is "substantially justified," and (2) when the nondisclosure is "harmless."
[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the evidence.
318 F.3d at 596–97 (emphasis supplied) (alterations omitted). The burden of establishing these factors lies with the nondisclosing party—in this case, Appellant. See id. at 596 (" 'It is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with Rule 37(c)(1) was either justified or harmless.' " (quoting Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir.2001)) (alterations omitted). Appellant argues that the district court was required to weigh the Southern States factors before excluding Dr. Voskanian, it failed to do so, and even if it had done so, it would have concluded that the late disclosure was harmless.5 We disagree on all counts.
First of all, the district court was not required to tick through each of the Southern States factors. Southern States explains that district courts have "broad discretion" to decide harmlessness and "should"—not "shall"—"be guided by" the five factors. S. States, 318 F.3d at 597; see also United States v. Maria, 186 F.3d 65, 70 (2d Cir.1999) ("[T]he common meaning of 'should' suggests or recommends a course of action, while the ordinary understanding of 'shall' describes a course of action that is mandatory."); Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir.2011) ("[T]he fact that the district court did not expressly mention the five-factor test we adopted in Southern States is not indicative of an abuse of discretion."); Carr v. Deeds, 453 F.3d 593, 604 (4th Cir.2006) (affirming the district court's exclusion of testimony for Rule 26(a) violation when the Southern States factors were not mentioned). Thus, the district court's failure to cite Southern States and specifically address each of the five factors listed therein does not amount to an abuse of discretion.
Second, the district court implicitly addressed some of the Southern States factors when deciding whether to exclude Dr. Voskanian as an expert witness. For example, it invoked the third factor when it discussed the disruption of the trial date and Pre–Trial scheduling order. See J.A. 558 ("[I]f we were to allow him to testify it would just turn everything that is in the pretrial order on its head."); id. at 661 ("[T]he plaintiff was just way late in naming an expert in this case․ [W]e have those deadlines so we can move in an orderly fashion. And the lateness with which the expert was identified would not allow that to happen."). The district court also touched on the fourth factor, when it stated that the expert testimony would not assist a trier of fact. See id. at 558 ("Let me just say that I think the question of deliberate indifference ․ is one you can argue to the jury based on what the administrators knew and when they knew it. I don't think you need an expert on that."); id. at 661 ("[T]he expert witness' report is pretty much a brief of legal conclusions in the case, and I don't think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case."). And, as to factor five, Appellant provided no reason whatsoever for its failure to disclose the evidence in a timely manner. See Appellant's Br. 28–29 (providing arguments on the first four factors but not the fifth).
Finally, our own review of the Southern States factors demonstrates that Appellant's error was far from harmless. In addition to the reasons provided by the district court, Appellant's initial disclosure failed to provide Appellee with any concrete explanation of Dr. Voskanian's potential testimony. The disclosure was made after the agreed-upon expert disclosure date, after discovery was closed, after Appellee filed a motion for summary judgment, and on the very date set by the court for the filing of motions to exclude experts. It is hard to accept that these events would not serve as a surprise to Appellee, or that Appellee could easily cure such a surprise. See Hoyle, 650 F.3d at 330 (finding no abuse of discretion where district court excluded expert declaration when the disclosing party notified his opponent of the declaration "not only after the close of discovery but after [the opponent] had filed its motion for summary judgment").
For these reasons, we find no abuse of discretion in the district court's exclusion of Dr. Voskanian as an expert witness.
We next turn to Appellant's argument that the district court abused its discretion in denying her motion to amend her complaint for the second time.
In the proposed amended complaint, Appellant sought to add two defendants: Dr. Davis, director of CSH at the time Justin Davis was murdered, and Dr. Yaratha, the psychiatrist on Justin Davis's treatment team at CSH. The district court denied the motion because it would be futile, i.e., there was no evidence of a "pervasive risk of constitutional injury" and no evidence that Drs. Davis and Yaratha were "deliberately indifferent to the knowledge of the risk ." J.A. 659. As explained more fully below, we hold that Appellant's proposed third amended complaint would not relate back; therefore, we affirm the district court on that ground. See United States v. Aparicio–Soria, 740 F.3d 152, 154 (4th Cir.2014) (en banc) ("We may ․ affirm the district court on any ground in the record[.]").
Appellant filed the second motion to amend and proposed amended complaint on December 27, 2012, ten months after the statute of limitations had expired. See Lewis v. Richmond City Police Dep't, 947 F.2d 733, 735 (4th Cir.1991) ("There is no federal statute of limitations for § 1983 claims, so the state limitations period which governs personal injury actions is applied․ Virginia has a two-year statute of limitations for personal injury claims." (citing Va.Code Ann. § 8.01–243(A))); A Soc'y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir.2011) (applying Virginia law) ("With regard to the § 1983 ․ claim[ ], the statute-of-limitations period ․ is two years."). Therefore, "unless the amended complaint ․ relates back to the date of the original filing, it will be barred by the statute of limitations and subject to dismissal." Locklear v. Bergman & Beving AB, 457 F.3d 363, 365 (4th Cir.2006).
In determining whether an amended complaint relates back, we look to Federal Rule of Civil Procedure 15(c)(1), which provides,
An amendment to a pleading relates back to the date of the original pleading when,
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint,6 the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
Fed.R.Civ.P. 15(c)(1); see also Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir.2010) (explaining that when a proposed amendment changes the party against whom a claim is asserted, the amending party must satisfy the requirements set forth in Rule 15(c)(1)(C)(i) and (ii)). This rule "presumes that the amending party can make the amendment, although it does constrain substantially the type of amendment that may relate back." Goodman v. Praxair, Inc., 494 F.3d 458, 469 (4th Cir.2007) (en banc).
When an amendment seeks to add a defendant, the focus turns to the notice to that individual or entity. Specifically, as to Rule 15(c)(1)(C)(ii), the Supreme Court has clarified, "The question ․ is not whether [the amending party] knew or should have known the identity of ․ the proper defendant, but whether [the potential defendant] knew or should have known that it would have been named as a defendant but for an error." Krupski v. Costa Crociere, 560 U.S. 538, 548 (2010). We have explained,
Rule [15]'s description of when such an amendment relates back to the original pleading focuses on the notice to the new party and the effect on the new party that the amendment will have. These core requirements preserve for the new party the protections of a statute of limitations. They assure that the new party had adequate notice within the limitations period and was not prejudiced by being added to the litigation.
Goodman, 494 F.3d at 470 (citation omitted) (emphases in original); see also Norton v. Int'l Harvesters Co., 627 F.2d 18, 20 (7th Cir.1980) ( "[P]rejudice within the meaning of [Rule 15] is prima facially established where a party named as an additional defendant in the amended complaint is deprived of the defense of the statute of limitations."); Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973) ("[A]n amendment adding another party is a new cause of action which cannot be added after the time limitation has expired."); cf. Goodman, 494 F.3d at 468 ("Rule 15(c) must be understood to freely permit amendment of pleadings and their relation-back so long as the policies of statutes of limitations have been effectively served.").
The proposed amended complaint in this case clearly meets the first requirement of Rule 15(c)(1)(C)(3)—that Rule 15(c)(1)(B) is satisfied, that is, the claims in the amended complaint "arose out of the conduct, transaction, or occurrence" in the original complaint—because it seeks to add defendants rather than to alter the underlying causes of action. See Locklear, 457 F.3d at 365–66. Therefore, we focus on whether, within the period of time provided by Rule 4(m), Drs. Davis and Yaratha "received such notice of the action that [they] w[ould] not be prejudiced in defending on the merits," and "knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C)(i), (ii).
Appellant argues that Drs. Davis and Yaratha had notice of the complaint and thus, "there was absolutely no prejudice that could be identified." Appellant's Br. 32. However, the record evidence shows that Dr. Yaratha did not receive notice of the lawsuit against Appellee until he was asked to attend a deposition in the matter on November 8, 2012—eight months after the initial complaint was filed and the statute of limitations had expired, and four months after the time period set forth in Rule 4(m). See J.A. 260 (Yaratha Declaration) ("I first became aware of the lawsuit ․ on November 8, 2012, when I was asked to attend a deposition in this matter."). Dr. Davis was not made aware until December 28, 2012, when he received an email from Appellee's office about the case-ten months after the initial complaint was filed and the statute of limitations had expired, and six months after the time period set forth in Rule 4(m). See id. at 259 (Davis Declaration), 467–68 (Davis Deposition).
Appellant offers no evidence to the contrary. Instead, she merely contends that Drs. Davis and Yaratha "clearly had notice of the complaint," based on the allegations that they were represented by the same office as Appellee. Appellant's Br. 32. There is zero support in the record for this contention. Rather, it is belied by the record. See J.A. 444, 489 (indicating that Dr. Davis and Dr. Yaratha were represented at their depositions by the law firm Rawls McNelis & Mitchell, not by the Office of the Attorney General, which represented Appellee). Appellant further asserts that Dr. Davis had notice of the lawsuit because he "still has an office and practices medicine [at CSH]." Appellant's Br. 35. This assertion is also belied by the record. See J.A. 449–50 (Dr. Davis's deposition, stating that he retired from CSH in May 2010).
Appellant also submits that knowledge should be imputed to Drs. Davis and Yaratha because they have " 'a sufficient identity of interest with the original defendant.' " Appellant's Br. 36 (quoting Goodman, 494 F.3d at 474). Goodman states, "we can conclude that when a plaintiff alleges a comprehensible claim against one of a group of closely related and functioning business entities or corporations, the other entities in that group, barring a contrary showing, will be charged with knowledge under Rule 15[ ] of the entity properly answerable to the claim." Goodman, 494 F.3d at 475.
But in Goodman, the business entities in question were a parent and subsidiary corporation, which were represented by the same lawyers. See Goodman, 494 F.3d at 475. Indeed, the subsidiary corporation in Goodman "concede[d] it had notice but thought ․ that Goodman intended to sue [the parent corporation]." Id. This case is markedly different. As explained above, the evidence demonstrates that Drs. Yaratha and Davis did not receive notice of the lawsuit against Appellee until November 8, 2012, and December 28, 2012, respectively, and they had different attorneys than Appellee. Moreover, Appellant has provided no evidence that Dr. Davis even kept in touch with the employees at CSH after his retirement in May 2010 such that he could still even be considered "closely related" to CSH. Goodman, 494 F.3d at 475. There is likewise no evidence that Dr. Yaratha worked so closely with Appellee as to be imputed with knowledge of the lawsuit against her.
Therefore, in reviewing the evidence presented at summary judgment, we must conclude that Drs. Davis and Yaratha "received [no] notice of the action" against Appellee within the 120–day period set forth in Rule 4(m) and were thus "prejudiced in defending [the claim] on the merits." Fed.R.Civ.P. 15(c)(1)(C)(i). Compare Krupski, 560 U.S. at 554 (holding that amended complaint should relate back because the district court found that the added party had "constructive notice" of the initial complaint within the Rule 4(m) period, and the added party did not challenge that finding), with J.A. 657–58 (district court finding that "neither [Dr.] Yaratha or [Dr.] Davis had notice of the suit within 120 days of its filing"). Appellant has likewise failed to produce any evidence that the potential defendants "knew or should have known" that the action would have been brought against them, but for an error in naming Appellee. Fed.R.Civ.P. 15(c)(1)(C)(ii); Krupski, 560 U.S. at 548. Thus, the proposed amendment to the complaint would not relate back, and the district court did not abuse its discretion in denying the motion to amend.
We now turn to whether the district court erred in granting summary judgment in favor of Appellee on the 42 U.S.C. § 1983 and gross negligence claims. Having concluded, supra, that Drs. Davis and Yaratha cannot be added to this action, and that Dr. Voskanian was properly excluded as an expert, we need only address the non-expert record evidence with respect to Appellee.
§ 1983 Claim
In order to succeed on a § 1983 claim for supervisory liability, a plaintiff must show:
(1) that the supervisor had actual or constructive knowledge that h[er] subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices,"; and
(3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994). As to the first element, "[e]stablishing a 'pervasive' and 'unreasonable' risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury." Id. As to the second element, a plaintiff "may establish deliberate indifference by demonstrating a supervisor's continued inaction in the face of documented widespread abuses." Id. (internal quotation marks omitted). Finally, as to the third element, "proof of causation may be direct ․ where the policy commands the injury of which the plaintiff complains ․ or may be supplied by the tort principle that holds a person liable for the natural consequences of his actions." Id. (internal quotation marks and alterations omitted).
Appellant fails to provide sufficient evidence on any of these three elements with regard to Appellee. First, there is no evidence that Appellee had actual or constructive knowledge that Harris and Thompson, the charge nurse and mental health technician, were engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to Davis. To the contrary, Appellee was not even working on the night in question, and there is no evidence the staff members had behaved in such a manner in the past such that their conduct was "widespread," or that they had neglected their duties on "several different occasions." Shaw, 13 F.3d at 799.
Nonetheless, Appellant argues that Appellee had an overarching duty to keep the patients at CSH safe. See Appellant's Br. 12 (citing J.A. 160, 161–62) (Appellee agreed that she "was [in addition to Dr. Davis] responsible for running the hospital" and that the hospital administration had a nondelegable obligation "to provide a safe environment for the patients[.]"). While this may be true, it does not relieve Appellant of the burden of showing a pervasive risk of harm that Appellee knew about, actually or constructively-a burden that Appellant has not met.
In addition, Appellant assumes that Appellee saw all of the AOD reports regarding the tension between Davis and Phillips. But as Appellee points out, she only worked Monday through Thursday during the week that Davis was murdered. Her time sheet shows that she clocked out at 6:41 p.m. on Thursday, February 25, 2010, and did not work Friday, Saturday, or Sunday of that weekend. Therefore, the record evidence shows that Appellee would not have seen the AOD report about the occurrences of February 25, which described the altercation in the gymnasium between Davis and Phillips, because it was generated the following day, February 26. In fact, the only knowledge of harm Appellee had about Davis and Phillips that week was the report from February 24, which reflected that Phillips felt threatened by Davis, and that Phillips had stated that he (Phillips) could harm himself or someone else.
Appellant has also failed to show sufficient evidence that Appellee was deliberately indifferent to or tacitly authorized widespread abuses of patient supervision. In this regard, Appellant points to the deposition of the nursing coordinator and supervisor, Bernadette Spruill, who stated that she was not aware that Phillips threatened to hurt or kill Davis, even though such information was listed in the AOD reports from that week. As a result, Spruill did not "take any actions in terms of staffing the unit to address any concerns regarding Mr. Davis's safety." J.A. 416. While this lack of communication is gravely unfortunate, Appellant proffers no evidence to show either that this was a widespread problem or that Appellee knew about it but did nothing to remedy the situation.
In fact, there was a system in place to address threats like those made to Davis. Phillips was placed on VOS, EOS, and SOS, and was supposed to be monitored every 15 minutes, according to hospital policy. And, the fact that this was not done by staff members on a Friday night, which was Appellee's day off, does not impute deliberate indifference to her.
Appellant relies heavily on Slaken v. Porter, 737 F.2d 368 (4th Cir.1984). But even that case recognized that a supervisor cannot "reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct." Id. at 373. Here, there is no evidence whatsoever that Appellee could have known that the nursing staff would watch television rather than check on Davis and Phillips.
In addition, Dr. Yaratha had considered the idea of moving Davis to a different ward, but after deliberation, decided against it. See J.A. 377 (Dr. Yaratha "met and discussed informally with [other doctors] about moving Mr. Davis. It was decided that the best place to monitor and manage [him] was on ward 8. Mr. Davis was very violent and aggressive before coming to ward 8 and during his first few weeks on ward 8. He would not do well with changing wards."). Thus, to the extent the decisions of Dr. Yaratha and others can be imputed to Appellee, those decisions clearly illustrate concern and discussion, rather than deliberate indifference.
Finally, Appellee's job duties were patently administrative in nature. See J.A. 146–48 (Appellee's position description for "Assistant Director for Clinical Administration," which included, inter alia, "provid[ing] direction to and oversight of the operations of [CSH]"; "assess[ing], develop[ing], monitor [ing], and evaluat[ing] the clinical and forensic operations of the hospital"; and "[p]rovid[ing] administrative and operational supervision to medical/clinical department and forensic services directors"). Nowhere is there a requirement that she have supervision over the security or monitoring of the patients in Ward 39–8.
For these reasons, Appellant has failed to meet her burden on summary judgment, and the district court did not err in granting Appellee's motion on the § 1983 claim.
Gross Negligence
Appellant also brought state law claims for common law grossly negligent supervision, and gross negligence under the Virginia Wrongful Death Act, Va.Code Ann. § 8.01–50. "Gross negligence" is
a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person. This requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.
Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 918 (Va.2004). Gross negligence is more serious than simple negligence, which "involves the failure to use the degree of care that an ordinarily prudent person would exercise under similar circumstances to avoid injury to another." Id.
Proof of gross negligence depends upon the facts and circumstances of the particular case. If fair minded people can differ respecting the conclusion to be drawn from the evidence, a jury question is presented. On the other hand, if the evidence is such that fair minded people cannot differ, the question whether gross negligence has been established is one of law.
Meagher v. Johnson, 389 S.E.2d 310, 311 (Va.1990) (internal quotation marks and alterations omitted).
Based on the dearth of evidence provided by Appellant, as explained above, Appellant falls far short of creating a triable issue as to whether Appellee's actions, or alleged lack thereof, "would shock fair-minded persons." Indeed, the Virginia cases allowing gross negligence claims to proceed to trial are far more egregious. See, e.g., Koffman v. Garnett, 574 S.E.2d 258, 260 (Va.2003) (allowing gross negligence issue to go to a jury where 260–pound football coach aggressively tackled a 13–year–old, 144–pound, inexperienced football player, breaking his left arm); Nichols v. Brizendine, 169 S.E.2d 457, 460 (Va.1969) (same, where driver of an automobile deliberately increased speed on a straight portion of a narrow road, which had an upcoming curve that driver knew about, and the car skidded 46 feet and collided head-on with a tree, severely injuring the passengers). Thus, as a matter of law, Appellee is entitled to summary judgment on this claim.
For the foregoing reasons, the judgment of the district court is
1. Citations to the "J.A." refer to the Joint Appendix filed by the parties in this appeal.
2. At oral argument, Appellant's counsel told the court that he filed this action 23 months after Davis's death; however, we note that this action was actually filed on the final day in the two-year statute of limitations period. See Oral Argument at 18:10–20, Wilkins v. Montgomery, No. 13–1579 (4th Cir. Mar. 18, 2014), available at http://www. ca4.uscourts.gov/oralargument/listen-to-oral-arguments.
3. Appellant submits that Dr. Voskanian actually provided Appellant's counsel with the preliminary report on November 26, but "through inadvertent oversight," it was not provided to Appellee's counsel until December 4. J.A. 67.
4. See also Campbell v. United States, 470 F. App'x 153, 156 (4th Cir.2012) (per curiam) ("[T]he Federal Rules impose an 'automatic sanction' of exclusion of a party's expert witness for failure to adhere to the expert witness requirements set forth in Rule 26(a)." (quoting S. States, 318 F.3d at 592 n. 2)).
5. Appellant does not argue the late disclosure was "substantially justified." S. States, 318 F.3d at 597.
6. Rule 4(m) requires that a defendant be served within 120 days after the complaint is filed, absent good cause. See Fed.R.Civ.P. 4(m).
Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge GREGORY and Judge WYNN joined.


text:
Facts & Figures
Sovereign: King Carl XVI Gustaf (1973)
Prime Minister: Stefan Löfven (2014)
Land area: 158,927 sq mi (411,621 sq km); total area: 173,731 sq mi (449,964 sq km)
Population (2014 est.): 9,723,809 (growth rate: 0.79%); birth rate: 11.92/1000; infant mortality rate: 2.6/1000; life expectancy: 81.89; density per sq mi: 55.6
Capital and largest city (2014 est.): Stockholm, 1.372 million
Other large cities (2014 est.): Göteborg, 536,790; Malmö, 303,873
Monetary unit: Krona
- Sweden Main Page
- Socialist Policy Dominates Sweden for Most of the 20th Century and Into the 21st
- Sweden Begins a Move to the Right
- 2014 General Election Leads to Historic December Agreement
Sweden, which occupies the eastern part of the Scandinavian Peninsula, is the fourth-largest country in Europe and is one-tenth larger than California. The country slopes eastward and southward from the Kjólen Mountains along the Norwegian border, where the peak elevation is Kebnekaise at 6,965 ft (2,123 m) in Lapland. In the north are mountains and many lakes. To the south and east are central lowlands and south of them are fertile areas of forest, valley, and plain. Along Sweden's rocky coast, chopped up by bays and inlets, are many islands, the largest of which are Gotland and Öland.
Constitutional monarchy.
The earliest historical mention of Sweden is found in Tacitus's Germania, where reference is made to the powerful king and strong fleet of the Sviones. In the 11th century, Olaf Sköttkonung became the first Swedish king to be baptized as a Christian. Around 1400, an attempt was made to unite Sweden, Norway, and Denmark into one kingdom, but this led to bitter strife between the Danes and the Swedes. In 1520, the Danish king Christian II conquered Sweden and in the "Stockholm Bloodbath" put leading Swedish personages to death. Gustavus Vasa (1523–1560) broke away from Denmark and fashioned the modern Swedish state. He also confiscated property from the Roman Catholic Church in Sweden to pay Sweden's war debts. The king justified his actions on the basis of Martin Luther's doctrines, which were being accepted nationwide with royal encouragement. The Lutheran Swedish church was eventually adopted as the state church.
Sweden played a leading role in the second phase (1630–1635) of the Thirty Years' War (1618–1648). By the Treaty of Westphalia (1648), Sweden obtained western Pomerania and some neighboring territory on the Baltic. In 1700, a coalition of Russia, Poland, and Denmark united against Sweden and by the Peace of Nystad (1721) forced it to relinquish Livonia, Ingria, Estonia, and parts of Finland. Sweden emerged from the Napoleonic Wars with the acquisition of Norway from Denmark and with a new royal dynasty stemming from Marshal Jean Bernadotte of France, who became King Charles XIV (1818–1844). The artificial union between Sweden and Norway led to an uneasy relationship, and the union was finally dissolved in 1905. Sweden maintained a position of neutrality in both world wars.
Socialist Policy Dominates Sweden for Most of the 20th Century and Into the 21st
An elaborate structure of welfare legislation, imitated by many larger nations, began with the establishment of old-age pensions in 1911. Economic prosperity based on its neutralist policy enabled Sweden, together with Norway, to pioneer in public health, housing, and job security programs. Forty-four years of Socialist government ended in 1976 with the election of a Conservative coalition headed by Thorbjörn Fälldin. The Socialists were returned to power in the election of 1982, but Prime Minister Olof Palme, a Socialist, was assassinated by a gunman on Feb. 28, 1986, leaving Sweden stunned. Palme's Socialist domestic policies were carried out by his successor, Ingvar Carlsson. Elections in Sept. 1991 ousted the Social Democrats (Socialists) from power. The new coalition of four conservative parties pledged to reduce taxes and the welfare state but not alter Sweden's traditional neutrality. In Sept. 1994 the Social Democrats emerged again after three years as the opposition party.
In a 1994 referendum voters approved joining the European Union. Although supportive of a European monetary union, Sweden decided not to adopt the euro when it debuted in 1999 and rejected it again overwhelmingly in a referendum in Sept. 2003.
The Social Democrat Party and its leader, Prime Minister Göran Persson, easily won reelection in Sept. 2002. The center-left Social Democrats had run the government for six out of the last seven decades. That changed when a center-right alliance led by conservative Fredrik Reinfeldt, leader of the Moderate Party, won the election in Sept. 2006.
Sweden Begins a Move to the Right
Parliament passed a law in April 2009 legalizing same-sex marriage. When the law went into effect on May 1, Sweden became the fifth European country to gay marriage.
In September 2010 parliamentary elections, the far-right, anti-immigration Sweden Democrats won seats in parliament for the first time. The elections were inconclusive as Prime Minister Reinfeldt's center-right coalition did not win a majority of seats. He reached out to other parties—not including the Sweden Democrats—to form a minority government.
2014 General Election Leads to Historic December Agreement
In the fall of 2014, the Moderate Party lost the general election. Prime Minister Reinfeldt resigned. Stefan Löfven took office as prime minister after leading his Social Democratic Party to victory with 31% of the vote. Thus, it was a return to power for the Social Democratic Party after being the opposition party for eight years. The night of the election, Löfven announced that he would attempt to form a coalition with the Green Party, the environmental party, and others. However, like Reinfeldt, Löfven ruled out working with Sweden Democrats, which had more than doubled their support in the 2014 election. In fact, Sweden Democrats, which has right-wing extremist roots, became the third-biggest party in Parliament after the 2014 election.
It didn't take long for Löfven's coalition to find itself at odds with the Sweden Democrats. Two months after Löfven took office, parliament rejected his budget proposal. The Social Democrats cast the deciding vote against Löfven's budget. As a result, he called for new elections. The elections were planned for March 22, 2015.
However, throughout Dec. 2014, Löfven's government began negotiating with other parties within his coalition in order to avoid a new election. On Dec. 27, the Swedish government announced that six parties had agreed on a plan that would allow all minority governments to have their own budget. Löfven called the agreement historical. Dubbed the "December Agreement," the plan would be in effect until the 2022 general election and removed any need for the snap election in March 2015.
See also Encyclopedia: Sweden .
U.S. State Dept. Country Notes: Sweden
Statistics Sweden www.scb.se/ .

subset: commoncrawl


text:
The Truth About Cindy's Testimony
The media on Thursday labeled Cindy Anthony's testimony as a bombshell, and many have commented that Casey's mother and the defense conspired to torpedo key evidence in an attempt to plant reasonable doubt. Cindy testified that she was the one who Googled chloroform in March of 2008, but was that a lie, as so many have suggested? Who knows for certain?
But Thursday's testimony should not have come as a surprise to prosecutor Linda Drane Burdick, though she acted as if it did. The following are excerpts from a deposition Cindy gave on July 28, 2009, with Drane Burdick asking the questions:
Q: All right. There is a search for how to make chloroform on your desktop computer. Did you make that search?
A: I'm not sure.
Q: Why not?
A: Because I remember looking up chlorophyll back in March of last year, and I'm not sure if I looked up chloroform as well. I looked up alcohol and several other things like that – like ethyl alcohol and peroxide, too.
Q: Why?
A: I was researching things that – as far as chlorophyll –
Q: Uh-huh.
A: – and possibly chloroform because of my animals because of my cocker—or my Yorkies would eat a lot of bamboo leaves and I knew there's chlorophyll in those leaves and they were getting sick, quite sick.
And I had previously lost two Cocker Spaniels, and I wanted to see if there was any tie. I had never thought about that with the cancer and stuff that I lost the Cocker, so I started researching different things.
As far as alcohol and peroxide, I researched just—I was looking through different things that was in our cabinets that Caylee would get into because we didn't keep, like, you know, cleaning supplies in the bathrooms. The only thing I kept in the bottom bathrooms that we had locked was alcohol and peroxide.
And I knew alcohol could be costly, but I wasn't sure about the peroxide because I know you can gargle with it, and I know you can drink some peroxide, but I wanted to see how much could hurt, in case she ever got into anything.
Q: Okay. Did you look up shovel –
A: No.
Q: – for any reason?
A: No.
Q: Neck breaking?
A: No
Q: Did you – do you believe that you could have accidentally looked up how to make chloroform?
A: I may have looked up the ingredients of chloroform. I may have looked up the ingredients, but not how to make it.
Q: Okay. [Pause] What did you learn about chlorophyll?
A: It can make an animal sick, but it wasn't – it didn't have, like, drowsiness effects and things that I was concerned with. It did not.
Okay. What is chlorophyll?
A: Chlorophyl is the – the green that's in plants.
Q: Okay. In all plants?
A: Uh-huh. You can see the green. Uh-huh.
Q: All right.
A: And being a Latin student and knowing Latin, chloro, I wanted to see if there was any ties, if you had – if you could overdose on chlorophyll or if it would become like chloroform. But there was no tie to that.
Q: All right. How do you spell chlorophyll?
A: C-h-l-o-r-i-p-h-i-l, [sic], I believe.
Q: I'm sorry. I missed that. C-h-l-o –
A: C-h – yeah – l-o-r-o-p-h-i-l.
Q: Okay. So you believe you may have searched the components –
A: Of chlor0phyll.
Q: – of chloroform?
A: I may have.
Q: But would not have entered in a search how to make –
A: No.
Q: – chloroform?
A: No.
Q: Okay.
A: Not unless the ingredients were mimicking the chlorophyll. And I did not see that.
Q: [Pause] When did you learn that law enforcement had identified the Google searches on how to make chloroform and then the component parts of chloroform?
A: I learned indirectly. Yuri Melich and Sergeant Allen and Nick Savage came to my house the week that Casey was home the first time, the first week.
Q: Uh-huh. End of August.
A: They came – I believe it was on a Tuesday because I think she had until Thursday originally to make a plea deal and then that following Monday. So it was around that time frame they came to my house. And naturally I couldn't let them in the house because Casey was there. So I came outside.
And Yuri Melich was asking me questions in my front yard about talking to Casey and it came out: Did you know that there was a search on your computer. And –
Q: For?
A: For how to make chloroform. And I said: No.
* * *
So, if Cindy told investigators in August 2008 that she wasn't aware that chloroform had been searched on the home computer, why did she tell Drane Burdick a year later that she was the one who Googled that word?
Whether she told the truth in 2009 and on the stand Thursday could be as hard to prove as it is to disprove. But Cindy's declaration was not a bombshell, and Drane Burdick should have seen it coming.
Please limit comments to the blog's subject matter. Comments containing profanity and/or personal attacks will not be published.
There comes a time when there is just one circumstantial coincidence too many.....
I have to disagree with you that you don't think Cindy lied on the stand. She most certainly did. For one thing, she is a nurse and she should know how to spell chlorophyll the right way. Secondly if you look up chlorophyll it does not take you to chloroform like she stated. She also said that she didn't look up neck breaking, but a video popped up on it's own of a skater that had to do with neck breaking. I don't think so! She said that she didn't know what the computer searched for or did when she wasn't using it. Most computers don't do anything unless you are telling them to and they will go into sleep mode if not used within a certain amount of time. As far as her time card goes, she also lied about that. It is illegal to fudge your time card like that and I am sure that the company she worked for is not very happy with her right now. I am sure the prosecutors have already gotten a subpeona for her time cards, her emails information and computer use during that time at work. They will be able to impeach her and I hope when this trial is done that she is the next one that they prosecute for perjury. It is one thing to beg for your daughter's life in the penalty phase, but to perjure yourself is another. I am sure that part of the reason that this may have come as a surprise to Linda Drane Burdick is because before court started she was talking with Cindy in the court room and everything was fine then. During the break before Cindy got on the stand she was in the hallway with her attorney and Baez. George was in the court room. I am sure that is when she decided to do her lying.I think the public has a right to be upset with Cindy after this latest testimony. Many of us were starting to feel some sympathy or changed what we thought about her when she was on the stand earlier and was starting to tell the truth, but after yesterday that has all changed. I hope at the end that she thinks it is worth it.
Dave: Did it seem that the jury was taking extra notes on this testamony? Will they be able to read any of the transcrips from depositions? It would seem to me, if I was on the jury that a mother would lie for her daughter. I just don't get this family. The daughter kills the granddaughter, labels the husband/father and son as molesters, and then Cindy lies for her. I don't get it. It's been reported Cindy takes notes that she can review before called to the stand again. Can the procecution ask for the notes? Cindy was talking to Jose in the hall. The notes may give an indication of answers Jose wants Cindy to give.
To Anonymous@1:01
You may want to hit the "pause" button in your judgment on Cindy.
There's no way they are going to prosecute Cindy Anthony for perjury. They are wise enough to know this does happen in trials, especially when it comes to a mother's instinct of protecting their child (especially when the penalty is death). They will not pursue Cindy for this.
It is immoral to lie. But if you were to take a poll on mothers throughout America -- on if they would lie in a court of law (and place themselves in jeopardy) to save their child from death -- I am sure that a significant percentage of mothers WOULD indicate they may do so. The reason for this is that this matter of the heart (love for their child) may outweigh the matter of law for many mothers placed in this type of circumstance.
Yes, it is wrong to lie in court. We all realize that. But agree with it or not, some mothers would argue that not intervening to protect their child from death would be immoral -- even in a court of law. A majority of mothers are likely to have unconditional love for their child, and this may translate in a way that their hearts would overrule the court rules in saving their child.
If you put yourself in Cindy's shoes and are so sure that you would not respond similarly, there should be no judgment on you that you do not love your child...but it might serve you well to have some compassion for another mother who would choose differently.
Anon @ 2:11 PM, if she wants to beg for her daughter's life to be saved then she should do it in the penalty phase and not commit perjury during the guilt phase. I have no sympathy for Cindy because of the way that she has lied and behaved. I know I can say that I am not alone in that. If I was in her shoes, I would still love her, but I can honestly say that I would never lie for her. It is apparent that Cindy is not thinking at all about Caylee during any of this because if she did, she would be behaving differently. I think we can agree to disagree on how we view this. JMO
Anon. At 3:30...
Yes, we can agree to disagree. I would not handle things as Cindy has in a variety of ways -- believe me -- but I do think we should find some compassion in our hearts for her. This is not the same as saying she has not made mistakes and there are not things to point to in her behavior that we do not agree with -- but it is very easy to judge when we are not in the situation or also do not have all the information. I think it is unfair to judge her so harshly.
We all have to find a peace on the decisions we make in life. For all the mistakes you feel Cindy has made and the disagreement you have on how she has conducted herself, the totality of the pain she has in all she faces (death of her precious grandaughter/daughter facing the death penalty/accusations against her husband and son/media and public condemnation etc. that will go on --and are the reality of herlife from now on)...she just most certainly does not deserve all that.
There are courageous things that she has done, and I think we need to remember that as well. All of our lives have a balance of our best and worst decisions -- our most courageous, honorable moments and our worst and weakest moments.
If Cindy lied on the stand to protect her daughter, I think that needs to be weighed in a more compassionate way than you have done...and even if there are many people you who feel as you do in hardening their hearts completely to Cindy, it doesn't make it right. Justice should and must be done, but that does not mean that as human beings we can't grant a few tender mercies.
I think we all can agree that Casey Anthony did not appear to put herself in the shoes of her dear daughter and lacked empathy for her.
If this sad story does nothing else, I would hope it brings about the desire for all of us to have more empathy and compassion for another's situation...to try to make the world a little bit better -- one person at a time. We need not only wisdom for that but also strong hearts.
reply to reply to anon 1:01
Ironically, I have steadfastly believed and blogged that I think this is a terrible accident by a foolish impulive girl. The point I was making is that sympathy's must be wearing thin by now as no reasonable person could assume that searches could be going back and forth between cindy and casey within 15 second intervals on the internet. I'm assuming that the jury is searching every testimony so that they are not forced to select first degree/death penalty. No jury wants to do that. But how do you get around the facebook, photobucket and myspace searches every 10 or 15 seconds? Clearly the prosecution has established intent. Having said that I do not judge Cindy. I would probably say what I had too also for my daughter.
To 4:54 Anon...from Anon. 4:51
Thanks for your reply. There are so many Anon. posters that it can get confusing! But thank you. I get where you are coming from, and I appreciate your comment.
I'm baffled by these people and their stories.
Cindy was at work, but, no, she's home, on Facebook. She didn't know anything about FACEBOOK, when she posted the nasty letter about Casey, in June, or July, 2008, as per her deposition. But, no, don't rely on her 2008 and 2009, or 2010 depositions. She was medicated, and lied. But, no, it wasn't a lie, it was faulty memory.
I wonder if Cindy is trying to intimidate George into getting on the stand and testifying that he molested Casey? Wonder if it will work. With these people, who knows?
I pray for justice. It seems the Anthonys pray for deliveance from justice.
As far as I am concerned, this is about a 2 1/2 y.o. little girl who was allegedly murdered by her own mother. It seems that her own family has forgotten about that. They claimed to have loved her, but their actions are saying otherwise. They claim they want to know the truth, but I believe that they know the truth and they are doing everything they can so that the truth of their daughter/sister murdering her own daughter doesn't come true. They want to save their daughter and sister from the death penalty. If that is the case then beg for her life during the penatly phase. Don't get on the stand and lie for her so that their neice and grand daughter doesn't get the justice that she deserves. This jury is going to see through their lies and they may very well take that against Casey. They have a better chance of her getting LWOP if they tell the truth versus lieing. If this was someone else who murdered their neice/grand daughter they would be yelling from the roof tops that they want this person to get the death penalty. I beg them to stop and think about Caylee and give her the justice she deserves instead of lieing for their neice/grand daughter who isn't going to give a tinkers damn about them when this is over. JMO


text:
Thomas Sowell's Advice for Young African Americans
In a clip from a longer interview, "Intellectuals and Race" author Thomas Sowell gives his advice to young African Americans. "Uncommon Knowledge with Peter Robinson" is produced by the Hoover Institute.
This transcript has been automatically generated and may not be 100% accurate.
... somewhere watching this interview ... there's a young Thomas all ... there's an African American whose smart ... and wants to ... do something with this line ... what's seat seems to me of all we've already got one piece of advice he offered to him is stay away from them ... from the races industry stay away from ... what what ... what did but that Greece slips what advice would you give ... the young Thomas all ... Audi make something of yourself ... as an African American in America ... today ... the way the body of work ... the equipment so was killed the people willing to pay for ...


text:
A massive drought parching some of America's most productive farm regions is pushing food prices up to the point where wilting corn plants could influence the presidential election.
More than 1,000 US counties – many of them in the grain capitals of the Midwest – have applied for federal disaster relief, meaning they've had drought conditions for more than eight weeks. Moreover, 61 percent of the US is now considered drought-stricken, the highest percentage in the 12-year history of the US Drought Monitor.
Drought or no drought, the US will still produce about a third of the world's corn and will see its third-largest corn crop ever. Moreover, a drought prognosis by Iowa State University agri-economist Chad Hart suggests that parts of the country – including Georgia and portions of Texas – are likely to see relief as the summer progresses, even as some part of the Midwest may see dry conditions worsen.
But if wilting plants result in yield below what was expected in the futures markets, prices will rise further. Already, prices have risen by about 30 percent, meaning consumers could see short-term price impacts on manufactured goods like cereals and even soft drinks this fall and rising meat prices next year.
Researchers have pegged inflation and "rate of income" as two major factors for voters in presidential elections. With gas prices again inching up and "now the drought impact on the food sector, we're going to have an inflation issue here, and that will put a damper on consumer confidence and will have a major impact on the election," says Michael Walden, a consumer economics expert at North Carolina State University in Raleigh.
Record-setting heat waves that have fueled fires in the Mountain West have also had a dramatic effect on the corn crop at a particularly vulnerable time. Currently, 30 percent of the corn crop in the 18 chief corn-growing states is now in poor condition, up 8 percentage points from a week earlier.
"In the hottest areas last week, which were generally dry, crop conditions deteriorated quickly," wrote Rich Tinker, author of the Drought Monitor.
Inflation, which had been estimated at 2.5 percent to 3.5 percent for this year, likely will inch up to 3 percent to 3.5 percent, Chris Hurt, a Purdue University agricultural economist, tells The Town Talk news site.
No one is suggesting that President Obama should take direct blame for the drought. In fact, his administration has been adamant about taking on global climate change, which some suggest could be playing a role in the unseasonably, and in many places historic, heat that's blanketed the country this year.
Yet drought-related food inflation could serve to highlight the overall weakness of the economy – a potential problem for Mr. Obama.
Of course, the current drought could break, as it seems to have begun to do in Georgia, where copious rain has fallen in the past few days. Moreover, the extent and timing of rising food prices remain big X factors as the two presidential campaigns steer toward November.
"Whether [the drought] affects the election will depend on the timing," says James Campbell, a political scientist who specializes in presidential politics at the University at Buffalo in New York. "The drought will most likely affect food prices later in the year, and the question is, will that be too late to make a difference?"
More than three-quarters of voters will likely have made up their minds before the last days of the election, when food prices might be rising. But Professor Campbell adds: "Those late deciders, they're going to decide the election."


text:
Cutie: Listen carefully to what I'm going to tell you.
The girl who appears in your dreams is princess Rosebud of Remlia.
She is being held captive by the evil wizard, Blackhorn.
Astyanax, please save our princess!
Astyanax: But.... I'm only sixteen.
How could I save her?
Cutie: Astyanax. You are the warrior chosen by this world.
You possess the wonderful miracle power within you..
And also....
Only the princess can send you back to your world.
I can't do it myself.
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text:
After simulating in RF, I tried to import the file into Max using "Create BIN Object, but go the following error message: Invalid ID signature found in file G:\... What does this mean? Thanks.
3ds Max
RealFlow 2015 LE
Error Message When Trying to Import .bin File
Discussions about the use of Realflow in Autodesk 3dsmax
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- ChristianZ
- Posts: 3446
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- Location: CH
- Contact:
Re: Error Message When Trying to Import .bin File
I don't have 3dsmax and cannot comment directly regarding this problem, but it might be that the connection-plugin is no longer fully compatible with your (relatively old) version of RealFlow. Maybe you could get an older version of the connection plugin?
RF10 standard + RFC4D
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text:
Mortal Kombat vs. DC Universe Basics
|The Rage Meter
See that little yellow bars and lightning bolts under your Health Bar? That's your Rage Meter, one of the many ways MK vs. DC shakes up standard fighting. This little bar can turn the battle in your favor easily. It fills primarily from your enemies blocking your attacks and from you taking damage. So if you are taking a pounding, your Rage Meter at least is thriving.
One way to get a head start on filling your meter is to get the first hit of the battle. This fills it half way. Your meter has two segments and each can be used as one Kombo Breaker ( + RT), or, if you save up the meter until it's full, you can enter Rage Mode (hit LT and RT). Kombo Breakers send your opponent flying to the floor no matter how bad he or she is juggling you, giving you a chance to recoup and go on the offensive.
The Rage Mode option is perhaps more useful, as it makes your attacks impervious to blocking, and you deal a bit more damage. Contrary to what you may think, it's best to not waste your Rage on big, flashy Super Moves. Rather, keep your opponent close and pummel him or her with strong Style Moves to really whittle away the health bar—if you don't send your foe flying, you'll have more time to increase damage while the meter empties. If you are on the receiving end of a rage, back off, keep moving, and just try and avoid your opponent (don't bother blocking).
Mortal Kombat's legacy is its brutal finishing moves, and they return in MK vs. DC with a slightly-reduced gore-factor. In fact, the DC Superheroes (Superman, Captain Marvel, Wonder Woman, Batman, Green Lantern and The Flash) don't have Fatalities, the deadly MK finishers, but instead have Heroic Brutalities. This morality code doesn't apply to the DC villains, vigilantes and the MK characters, however.
You may only execute Fatalities in Vs. or Arcade modes, so if you want to practice them with minimum risk, you'll need a second controller. In the few seconds following 2 out of 3 round your victory, you will see the words FINISH HIM! appear. At this point you'll need to move to the correct distance away from your target and execute the Fatality/Heroic Brutality button combo.
Some finishers require you to be near to your opponent—one step away or closer—and some a few body lengths away. Chances are if your Fatality isn't working, you should change your position. The full moves and distances are outlined in our Characters section.
|Destructible Objects
|Columns, stalagmites, statues—they litter the levels of MK vs. DC. Hit your opponent into one for up to 10% additional damage. For more on this, check out our Levels section.
|Free Fall Kombat
Free Fall Kombat can be initiated on certain levels (refer to our Levels section for more) by knocking or throwing your opponent off of a ledge—usually through some sort of destructible restraining wall. Moves that normally send your opponent flying horizontally are the best way besides a throw to break into a Free Fall Kombat segment. Certain levels feature drops prominently, some without a limit on the number of Free Fall Kombat segments you can initiate.
Free Fall Kombat is risky, however, since things can turn against you in a split second. While in the air, you'll be able to switch positions with your opponent. Whoever is on top at the bottom will dole out the damage. So what should you be doing during these sections? Well, if you're on top, you should randomly hit the face buttons to beat your opponent.
If you are on the bottom, you must match your aggressor's button presses. One way to simplify this, and not risk timing problems, is to mash a single button and hope it comes up randomly in your opponent's random pressing. This works quite well against computer controlled fighters.
As the fighters swap spots in the air and accrue damage, a meter on the side of the screen will be filled. When this meter reads "SUPER," hit the RB to perform a special move to end the Free Fall Kombat early and ensure damage to your opponent (up to 30%!). You can hold out longer for a higher meter, and thus, higher damage, but you risk your opponent turning the tides on you.
|Test Your Might
Similar to Free Fall Kombat, Test Your Might is only available on certain levels with destructible walls. We detail these in our Levels section. By knocking or throwing your opponent into certain walls, you'll initiate this mini game.
As you charge through the walls, you'll need to press all four face buttons as fast as possible. You can be pretty sloppy here, and you can press them essentially all at once. Your opponent does the same. Whoever initiated the attack will deal out the damage (up to 25%) no matter what, but the person on the receiving in can all but cancel out that damage by mashing away.
|Klose Kombat
Klose Kombat can be initiated at any time so long as your opponent doesn't block the attempt. Press RB to begin grappling your foe and the camera will zoom in for some heavy blows.
Like Free Fall Kombat, one person deals blows and the other tries to guess the correct face button (stay with one and mash away to improve your chances!). If you are on the defensive and choose wisely, you will end the battle with a Kounter—and inflict a bit of damage to your adversary.
If you are dealing the damage, each blow counts for a higher final percentage. When in Klose Kombat, some blows count for more—like the B (the most, 9% each) and X attacks (7%), so there's a good chance your opponent will be picking those.
|Kombo Challenge & Pro Moves
Kombo Challenge is a mode in which you complete various Style and Super Moves in sequence with precise timing. This is not for the faint of hear—it requires intense concentration and a good feel for a character's move set. The best part about Kombo Challenge is that it teaches you how to perform the characters' Pro Moves.
Pro Moves are extended versions of Super Moves: Say you send a rocket with a Super Move like Lex's LEXCORP ROCKET; following that move up with precise-timing-required button commands will allow you to fire an additional rocket. Each character has at least one Pro Move—for more on how to execute these, check out our Characters section.
In Kombo Challenge, many of the challenges require you to perform a Pro Move. Often, they will show you a white star at the exact moment a time-sensitive command needs to be carried out. Look for this white star to learn the correct timing of your Pro Moves—it will guide you through Kombo Challenges as well. Finally, the little circle with the arrow in it in the Kombo Challenge button key indicates that you must JUMP.
|Give us feedback!
|On to Characters...
Grand Theft Auto IV: The Ballad of Gay Tony Cheats
Grand Theft Auto: Episodes from Liberty City Cheats
The Elder Scrolls V: Skyrim Cheats
Saints Row: The Third Cheats
Grand Theft Auto IV: The Lost and Damned Cheats
Red Dead Redemption Cheats
Call of Duty: Black Ops Cheats
Assassin's Creed III Cheats
Minecraft (Xbox 360 Edition) Cheats
Call of Duty: Black Ops II Cheats
Professor Layton and the Last Specter
X360 Forza Motorsport 4
Wii Rune Factory: Tides of Destiny
NDS Harvest Moon: The Tale of Two Towns
PS3 Dark Souls
PC Dark Souls (Prepare to Die Edition)
X360 Warhammer 40,000: Space Marine
Web War Commander
PS3 Ultimate Marvel Vs. Capcom 3
X360 Trials Evolution
Mortal Kombat vs. DC U... at IGN
Mortal Kombat vs. DC U... at GameSpy
Mortal Kombat vs. DC U... at TeamXbox
Mortal Kombat vs. DC U... at GameStats


text:
I intended to stay quiet on risk models for a while, but I read the following Economist articles and wanted to note them here for future reference.
From "Statistics and climatology: Gambling on tomorrow":
Climate models have lots of parameters that are represented by numbers... The particular range of values chosen for a parameter is an example of a Bayesian prior assumption, since it is derived from actual experience of how the climate behaves — and may thus be modified in the light of experience. But the way you pick the individual values to plug into the model can cause trouble...
Climate models have hundreds of parameters that might somehow be related in this sort of way. To be sure you are seeing valid results rather than artefacts of the models, you need to take account of all the ways that can happen.
That logistical nightmare is only now being addressed, and its practical consequences have yet to be worked out. But because of their philosophical training in the rigours of Pascal's method, the Bayesian bolt-on does not come easily to scientists. As the old saw has it, garbage in, garbage out. The difficulty comes when you do not know what garbage looks like. (emphasis added)
This is only a subset of the argument in the article. Note that this piece includes the line "derived from actual experience of how the climate behaves." I do not see the "Bayesian prior assumption[s]" so often cited elsewhere to even be derived from experience, if you take experience to mean something grounded in recent historical evidence instead of opinion. This willingness to rely on arbitrary inputs only aggravates the problems cited by the Economist.
The accompanying piece "Modelling the climate: Tomorrow and tomorrow" further explains some of the problems I've been describing previously.
While some argue about the finer philosophical points of how to improve models of the climate (see article), others just get on with it. Doug Smith and his colleagues at the Hadley Centre, in Exeter, England, are in the second camp and they seem to have stumbled on to what seems, in retrospect, a surprisingly obvious way of doing so. This is to start the model from observed reality.
Until now, when climate modellers began to run one of their models on a computer, they would "seed" it by feeding in a plausible, but invented, set of values for its parameters. Which sets of invented parameter-values to use is a matter of debate. But Dr Smith thought it might not be a bad idea to start, for a change, with sets that had really happened...
[T]he use of such real starting data made a huge improvement to the accuracy of the results. It reproduced what had happened over the courses of the decades in question as much as 50% more accurately than the results of runs based on arbitrary starting conditions.
Hindcasting, as this technique is known, is a recognised way of testing models. The proof of the pudding, though, is in the forecasting, so Dr Smith plugged in the data from two ten-day periods in 2005 (one in March and one in June), pressed the start button and crossed his fingers. (emphasis added)
This is exactly what I've been saying. Use "observed reality" and not "plausible, but invented" opinions or "arbitrary starting conditions" and I'll be happy to see what the model produces.
Friday, August 31, 2007
Economist on Models
Posted by Richard Bejtlich at 23:11
Labels: clowns, favorites, risk, threat model
2 comments:
- jbmoore said...
- This comment has been removed by the author.
- jbmoore said...
Follow the above link, read the essay and decide for yourself.
If you plug arbitrary values into an equation, doesn't that make you a mathematician?
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text:
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text:
Dreamdancer wrote:After three purist fails on cursed oasis, i tried DL again. This time with preps and i won
Found Tikki Tooki early. Totally abused dodge against the bosses and with way to many gold to do anything sensible, i decided to give TT a huge amount. This resulted in 5 reflex/dodge potions and the Avatar went down really fast
Incidentaly, the "feed excess gold back into TT and buy a crapload of potions" routine was a bit obscure back in the day
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text: Ash goes to Professor Oak to ask for advice about what to do about the Pokémon League as he has not done much training being sidetracked the past while. He tells Ash it is too late but to try his best anyway. They hit the road to Indigo Plateau to find a guy named Otoshi who challenges Ash. If Otoshi wins, he may take all of Ash's badges. Ash defeats him, to discover he didn't have any badges. They were stolen, by Team Rocket. Meanwhile, James and Meowth discover the badges they just stole to be gone. Jessie had taken them, to go onto the Pokémon League alone. Otoshi's Marowak gets frustrated, and walks away. Otoshi despairs, until they spot Team Rocket's balloon. James and Meowth take off, but are stopped by Ash and searched. They find nothing, and James and Meowth are off to get Jessie. They find her, forgive her, and get back together. Otoshi battles them for the badges back, but almost loses until Marowak shows up to stop them. Marowak came back after remembering some of the better times with Otoshi. They get the badges back, and Otoshi and Ash go their separate ways towards the Pokémon League.


text:
March 2014
Feature Stories
How you can publish your book as an e-book.
On the eve of his retirement from Union Power Cooperative, Tony Herrin remembers when his light came on and styed on.
A Randolph County family farm found a use for excess goat milk.
How much do co-ops care? Let's do the numbers.
By Michael E.C. Gery
Middle school players can get scholarships to basketball camp
How many does it take to change a light bulb?
Brunswick EMC helps Brunswick County expand healthcare services
ReadyNC App helps families deal with emergencies
Cut off all but one circuit breaker during an outage
Native Americans in Early North Carolina


text:
Stop Female Genital Mutilation In The UK – NO FGM UK
Sharing ideas and networks to STOP FGM – Female Genital Mutilation – in the UK
Sharing ideas and networks to STOP FGM – Female Genital Mutilation – in the UK
16-17 May 2014, Birkbeck, University of London
What's it all about!
Life, politics and everything in-between
Publishing with a purpose
For what it's worth.....
Putting hoof to keyboard to bring you views from the farmyard on public health, public mental health and related issues. And goats. These views are my own, and do not represent those of any organisations or endorse any political perspective - but whatever I'm eating may have been stolen.
the blog of the book
free psychotherapy for people on low incomes and benefits
about writing and social anxiety
The yearly literary festival in the heart of Buckinghamshire
Campaigning to protect the 2004 Hunting Act
Because politics isn't just something that happens in the Palace of Westminster
Tales of living with borderline personality disorder, working in mental health and all the bits in between.
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Exploring best practice and research in sexual violence. A loud voice in the fight against victim blaming. Written and Managed by Jessica Eaton, Doctoral Researcher in Forensic Psychology


text:
Should You Get the Brazilian Blowout? See One Reader's Hair Care Experience
Check out the transformation that takes place when a curly-haired TotalBeauty.com reader tries the treatment
"It really does make my life much easier," she continues, "and even though I may be walking around with spit up on my shoulder, at least I am doing it with cute hair!"
So, will she do it again? "Oh, sure" she says, "it's a month later and I still love it and will 100 percent do it again," she says. "It's expensive, but I feel, for me, it's absolutely worth it."
Older comments
i want to try
by brianna121791 Saturday, May 11, 2013 at 08:04PM Report as inappropriate
Her hair looks the same...just styled. However it sounds like she had a great experience. Maybe her hair feels better to her. I would definitely like to try a BB.
by Zeaundra Monday, February 18, 2013 at 12:45PM Report as inappropriate
She had perfect hair before?
by LittleBunny Thursday, November 10, 2011 at 11:03AM Report as inappropriate
Wow... I mean, she has great hair before, but after is just stunning
by MysticMeercat Saturday, October 29, 2011 at 07:47PM Report as inappropriate
I don't i would do it for my hair.
by shar_r Thursday, October 27, 2011 at 03:00PM Report as inappropriate
Her hair is fine, without the treatment!!!
by MissPurple Thursday, July 21, 2011 at 03:41PM Report as inappropriate
Her "before" hair is fine. It's a haircut she needs, not a blowout
by naughtnone Monday, June 13, 2011 at 04:53PM Report as inappropriate
I agree with LittleBunny---her hair looked good before! Looks better now, but not a huge difference.
by LipglossandSpandex Sunday, April 17, 2011 at 04:48PM Report as inappropriate
the chemicals in the wanna bes are horrible for both the stylist and the customer... be very careful as you choose
by lelalu100 Saturday, March 19, 2011 at 01:10PM Report as inappropriate
The REAL Brazilian Blowout is amazing. My hair is, well, just think Beyonce on a bad hair day. BB doesn't have formaldehyde; the imitations (Brazilian Keratin Treatments) do. The real one is a branded product, (like Coke vs. cola), it's safe and more effective.
by BuffyFromLosAngeles Sunday, February 20, 2011 at 09:45PM Report as inappropriate


text:
I've been hearing a lot of whiny bitching on the interwebs over the past year.
"Amazon is going to put Big 6 publishers out of business!"
"Amazon is a bully!"
"Amazon is going to destroy bookstores!"
"Amazon engages in unfair business practices!"
"Amazon is the devil!"
"Amazon is going to monopolize the industry, then force all authors to work in labor camps for 6 cents an hour!"
"Amazon is going to invent a car that is fueled by the screams of puppies!"
"Amazon is going to take over the world!"
That last one is probably true.
I just got back from Seattle with my cohorts Blake Crouch and Barry Eisler, and we met with some key players in Amazon's various publishing endeavors.
None of them discussed anything confidential with us. We pretty much just ate and drank and had fun. And it also pretty much confirmed what I've known for a while now.
Amazon is going to destroy the Big 6, destroy bookstores, destroy 95% of all agents, destroy distributors (Ingram, Baker & Taylor), and revolutionize the publishing industry by becoming the dominant force.
If you are any of the above I mentioned, you probably want to blame Amazon.
You'd be wrong.
Most of the blame falls upon that person you see in the mirror.
Some of it falls on your customers and authors, who like Amazon more than they like you because Amazon treats us better than you ever did.
Blaming Amazon for your eventual downfall is like blaming a lion for being king of the jungle.
If you don't like apex predators, get the hell out of the food chain.
Here's the thing, all you whiners. You had your shot. And you blew it.
Hardcovers cost too much. So do paperbacks. As media goes, paper books cost too many dollars per hour of entertainment they provide.
The return policy for books is archaic, wasteful, and stupid. It encourages overspending, overbuying, and underselling.
Underestimating the importance of digital was suicide. Then trying to prevent its widespread adoption via windowing titles, the agency model, high prices, and DRM was just throwing gas on a fire.
Treating authors like shit, when authors are essential to the process, is bad business.
Treating readers like shit, when readers are essential to the process, is bad business.
Bookstores and publishers and distributors are NOT essential to the process. You should have evolved.
Why didn't the Big 6 invent online bookstores and ereaders? Why didn't the ABA?
Amazon INNOVATES. That's the thing you whiners don't understand. They're not dominating because they undercut you on price. Price is just one way to please customers. Service is another. Value is another. But the biggest one is technology.
Anyone can sell for cheap. Not anyone can single-handedly jump-start the digital revolution. Not everyone can create an online store that is not only a pleasure to shop at, but where it is fun to spend time.
Amazon is going to eat you all for lunch because they aren't thinking about how to make money tomorrow. They're thinking about how to make money in 2018.
They're doing all the stuff you never did--hell, they're doing stuff that you never even thought of. They're all about pushing it forward. They're all about gathering and analyzing data. They're all about challenging themselves to do better, to focus on the future, to learn from the past. They're all about pleasing the customer (and I heard from no less than half a dozen Amazonians that they consider authors to be their customers.)
They experiment. They change. They evolve.
Are they perfect? Hardly. Show me a business, no matter how tiny, that is perfect. In fact, show me a person who is perfect. We all make mistakes as we strive to better ourselves.
But when Amazon makes a mistake, they own it. They don't compile mistake upon mistake until an industry is satisfied with an 80% return rate for books and a maximum of 17.5% royalties for authors and a $35 price tag for the new Stephen King.
It's easy to hate your competition, especially when the competition is kicking your ass.
But do you innovate?
Do you push the industry into the future, or try to protect the past?
I'm not seeing any innovation. At best, I'm seeing imitation. At worst, I'm seeing whiners.
"Poor me! Someone does my job better than I do!"
"My girlfriend likes another guy more than me because he's smarter, nicer-looking, and treats her better!"
My advice: if you're sick of getting beaten up, go to the gym and start training.
For years I've been telling publishers and booksellers how they can compete. I haven't seen any of them follow any of my suggestions.
But guess what? I've spent hours talking to Amazon. And Amazon listened. They took notes. And I've seen them adopt my suggestions. Many times. And I'm not the only one they're listening to.
An open mind beats a closed mind, every single time. Once you start blaming, you've lost.
Winners don't blame. Winners don't whine.
Winners keep at it until they win.
And to Amazon: don't worry about the blamers and the whiners and the haters and the naysayers.
History is written by the victors.
It was great hanging out with you Amazon folks. And as always, thanks for listening. ;)
Monday, February 13, 2012
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