Practice Areas
Industries
Product Liability
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May 16, 2012
Feds Shut Down Off-Label Bone Graft Probe, Medtronic Says
Federal prosecutors have ended their civil and criminal investigation into allegations of off-label marketing of Medtronic Inc.’s Infuse bone graft product, the company said Wednesday, days after a whistleblower False Claims Act suit accusing it of paying kickbacks to promote off-label use was unsealed.
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May 16, 2012
Aon Accused Of Subpar Coverage After Fatal Plant Blast
Facing mounting legal bills after a deadly explosion at a Connecticut power plant site in 2010, a group of energy companies and contractors filed suit Monday against Aon, alleging the insurance giant failed to meet its contractual obligation to provide adequate coverage for defense costs.
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May 16, 2012
Travelers Must Cough Up Docs In Mine Pollution Coverage Row
An Alabama federal judge on Wednesday granted mining giant Drummond Co.'s request to compel certain documents from Travelers Casualty & Surety Co. in a coverage battle over litigation costs related to pollution from the company's coke production operations.
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May 16, 2012
Texas Refiner Loses Appeal Of $5M Verdict For Hurt Worker
A Texas appeals court Tuesday upheld a jury’s $5.4 million verdict against Pasadena Refining System Inc. in a lawsuit brought by a contractor burned while making repairs at its refinery, but held that PRSI was covered under an insurance policy held by the contractor's employer.
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May 16, 2012
Senate's New FDA User Fee Bill Adds Funds For Rare Diseases
Senators introduced revised legislation Tuesday to reauthorize user fee programs at the U.S. Food and Drug Administration, adding provisions to extend government grants for drugs used in rare diseases and calling for greater public input on development of new medical products.
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May 16, 2012
3rd Circ. Scraps 2 Schering Off-Label Marketing Actions
The Third Circuit on Wednesday refused to revive two putative class actions alleging former pharmaceutical giant Schering-Plough Corp. marketed off-label uses for certain drugs, saying the suits both failed to allege a link between the company's marketing and any actual injuries.
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May 16, 2012
Specialty Products' Asbestos Creditors Float Ch. 11 Plan
Creditors with claims for asbestos-related health problems proposed the initial reorganization plan for Specialty Products Holdings Corp. on Monday, hoping to jump-start a case stalled by the difficulty of estimating the bankrupt company’s massive asbestos liability.
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May 16, 2012
Calif. Homeowner Targets Class Over Plumbing MDL Deal
A California homeowner on Tuesday asked a Minnesota federal court to nix class certification in a multidistrict litigation accusing Uponor Inc. of duping consumers into buying faulty plumbing systems, arguing class members making California law claims were not fairly represented in settlement talks.
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May 15, 2012
Tishman Seeks 2nd Circ. Knockout Of 7 WTC Liability Suit
Tishman Construction Corp. on Monday urged the Second Circuit to affirm that it can't be held liable for negligence by Consolidated Edison Co. of New York Inc. and its insurers over the collapse of 7 World Trade Center following the 9/11 terrorist attacks.
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May 15, 2012
Pentagon Restricts F-22 Flights Amid Safety Concerns
Secretary of Defense Leon Panetta on Tuesday placed new flight restrictions on the U.S. Air Force's most advanced jet, Lockheed Martin Corp.'s F-22 Raptor, until the military can solve persistent problems with the aircraft's oxygen system.
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May 15, 2012
4th Circ. Affirms Black Lung Benefits For Coal Miner's Widow
The Fourth Circuit on Tuesday upheld the award of black lung benefits to the widow of a former Harman Mining Co. coal miner, finding that an administrative law judge was entitled to refer to the preamble of certain regulations when evaluating a medical expert's credibility.
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May 15, 2012
5th Circ. Upholds Wastewater Cos.' Convictions In CWA Case
The Fifth Circuit on Tuesday affirmed the Clean Water Act and permit violation convictions and sentences of wastewater treatment provider Jeffrey Pruett and his two companies, ruling on a question of first impression that only ordinary negligence is required for criminal penalties tied to negligent violations of CWA permits.
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May 15, 2012
Panel OKs Calif. Bill For CPUC To Review US Safety Guidance
A bill requiring the California Public Utilities Commission to consider safety recommendations by a federal transportation agency in order to prevent incidents like the fatal 2010 gas pipeline explosion in San Bruno cleared a state Senate panel on Tuesday.
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May 15, 2012
Chinese Drywall Developer Makes $5M Deal With Homeowners
A Florida real estate developer on Monday agreed to pay $4.8 million to a class of condominium owners who claim that Chinese-manufactured drywall used in the construction of the homes caused health problems and property damage.
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May 15, 2012
Golden Eagle Escapes $29M Wrongful Death Coverage Suit
A California appeals court on Monday upheld a decision that Golden Eagle Insurance Corp. did not have to cover Lemoore Real Estate and Property Management Inc.'s $29 million settlement over a fatal fire in one of its buildings because of a professional services exclusion in the insurance policy.
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May 14, 2012
NHTSA Scopes Hyundai Elantra's Air Bag System
The National Highway Traffic Safety Administration on Thursday opened an investigation into the Hyundai Motor Group's 2012 Elantra after a consumer complained that the improper deployment of his car's air bag lacerated his ear and face.
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May 14, 2012
Bret Michaels, CBS Resolve Tony Awards Injury Suit
Glam metal rocker and reality TV star Bret Michaels on Monday settled his suit against Tony Awards Productions and CBS Entertainment over a head injury he sustained at the 2009 Tony Awards that he says nearly killed him.
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May 14, 2012
Judge Thins Malpractice Suit Over Child's Motrin Case Verdict
A California judge on Monday trimmed a malpractice suit against Greene Broillet & Wheeler LLP and other former attorneys who represented a girl who lost a high-profile case against Johnson & Johnson alleging her use of Children's Motrin caused her to go blind.
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May 14, 2012
NRDC Pushes To Reopen FDA Suit Over Soap Chemicals
The Natural Resources Defense Council on Monday asked the Second Circuit to reopen a suit aimed at forcing the U.S. Food and Drug Administration to regulate anti-bacterial agents triclosan and triclocarban, saying their use in soaps could lead to the rise of so-called superbugs.
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May 14, 2012
41 AGs Back Bill Allowing Suits Over Generic-Drug Warnings
Forty-one attorneys general Friday threw their weight behind legislation that would effectively overturn a U.S. Supreme Court ruling shielding manufacturers of generic drugs from lawsuits over harm caused by inadequate warning labels.
Expert Analysis
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FSMA’s Potential Impact On Commercial Contracts
While a contract's force majeure clause may be boilerplate, the Food Safety Modernization Act provides new reasons to pay greater attention — new provisions of the FSMA, when taken together, greatly increase the probability that your supply chain, or your ability to comply with your contractual obligations, will be disrupted by some regulatory action by the U.S. Food and Drug Administration, say Michael Plunkett and Corinne Marie Pouliquen of Blank Rome LLP.
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Missing Link: Food, Drug Safety In Foreign Supply Chain
The Institute of Medicine has issued a report entitled “Ensuring Safe Foods and Medical Products Through Stronger Regulatory Systems Abroad." Some of IOM’s goals, including the application of current food-tracing requirements to medicines, biologics and even medical devices, suggest that supply-chain tracing may be of increased importance over the next three to five years, says Amy Goerss of Hodgson Russ LLP.
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Addressing Corporate Liability Under The TVPA, ATS
After hearing argument in two cases that have far-reaching implications for corporations doing business in politically volatile regions, the U.S. Supreme Court has determined in one case that corporations are not liable under the Torture Victim Protection Act — but it left open for exploration whether the Alien Tort Statute can or should be used as a vehicle for litigating alleged wrongdoing occurring in foreign countries, say Timothy Nelson and Jennifer Spaziano of Skadden Arps Slate Meagher & Flom LLP.
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Document Review Considerations
An e-discovery review usually requires significant manpower and a certain level of expertise to be done properly, and many in-house legal departments turn to litigation support and discovery management providers as an alternative for first-pass document review. Regardless of who performs it, proper preparation and planning in advance of a review is the key to its success, says Stacy Jackson of IE Discovery.
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Where Lies The Liability? Up To Plaintiffs To Prove
A holding by the New York Appellate Division, First Department, that breach of implied and express warranty claims against a defendant in the Reeps family's product liability lawsuit should be dismissed may be the most important in the case, because it clarifies that service providers, as opposed to product sellers, cannot be held liable under strict product liability or breach of warranty theories of liability, says William Ruskin of Epstein Becker Green PC.
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Where Rubber Hits Road: Examples Of Alternative Fees
Creating new approaches to fee agreements is something to embrace rather than fear — and when structured and managed correctly, it can be financially advantageous. Take, for example, fixed-fee arrangements, result-based billing and portfolio billing, say Bill Rudnick and Keith Maziarek of DLA Piper.
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A Layered Approach To Protecting CPSIA Whistleblowers
With its holding that the Consumer Product Safety Improvement Act of 2008 extends to reported violations of food safety standards, the U.S. Administrative Review Board has created multiple layers of protection for food industry whistleblowers and further demonstrated its tendency to espouse a broad and expansive view of whistleblower protections generally, says Michael Slocum of Epstein Becker Green PC.
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Mission Impossible: Impossibility Preemption Post-Levine
It is clear from Dobbs v. Wyeth and Levine v. Wyeth that the most persuasive evidence for the impossible preemption argument is an actual prior rejection by the U.S. Food and Drug Administration of the very warning language at issue. Absent this type of evidence, it is easy for a court to find that impossibility preemption is just impossible to prove, say Randall Christian, Jason Casell and Darlene Ghavimi of Bowman and Brooke LLP.
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Implications — And Complications — Of Undoing Mensing
A U.S. senator has proposed a bill intended to undo the perceived inequality in the U.S. Supreme Court's 2011 Pliva v. Mensing decision. If the bill succeeds, it would not only place a heavy burden on generic manufacturers contrary to the intent of the Hatch-Waxman Act, but it would also ignore the reality of how prescription drugs are used in the health care system, say James Huston, Julie Park and Erin Bosman of Morrison & Foerster LLP.
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Dismissing FCA Cases Over Relators' Objections
The Tenth Circuit's recent decision in U.S. ex rel. Wickliffe v. EMC Corp. highlights a tool rarely used by the government in qui tam actions brought under the federal False Claims Act — dismissing the case over a relator’s objection — and provides guidance to approaches defense counsel may take with regard to this powerful procedural tool, say Lawrence Kraus and Christina Taylor of Foley & Lardner LLP.