May 16, 2009
Merck's New Journal
Concurring Opinions has an interesting post titled "Mercketing," which describes how Merck and Elsevier created their own "journal" in Australia. Yet, perhaps to make it look, er, less "slanted" the journal is called the Australasian Journal of Bone and Joint Medicine and is "made to look like [a] medical journal." The post and Sergio Sismondo's article "Ghosts in the Machine" is worth a read.
May 14, 2009
Plaintiffs' Teflon Class Actions Against Dupont Don't Stick
As Allison Frankel reports at AmLaw Litigation Daily, plaintiffs in the Teflon MDL proceedings have filed a joint motion to drop their consumer-fraud class-action cases. Dupont understandably has high praise for its outside counsel, Bartlit Beck. Dupont's General Counsel Thomas Sager noted, "It was like this firm just dropped from heaven."
WLF's Richard Samp Discusses New D.C. Cir. Decision on Independent Contractors
The Washington Legal Foundation's Richard Samp has an interesting, short paper discussing a recent D.C. Circuit Court of Appeals decision rejecting the right-to-control test to distinguish independent contractors from employees, and instead substituting an extent-of-entrepreneurial-opportunity test. A company generally is not faced with vicarious liability for independent contractors, but generally has vicarious liability for its employees.
May 13, 2009
Skadden Successfully Recruits John Beisner, Stephen Harburg, and Jessica Davidson Miller of O'Melveny
According to this press release from Skadden, John Beisner, Stephen Harburg , and Jessica Davidson Miller will leave O'Melveny and join Skadden's Washington, D.C. office. John Beisner, chair of O' Melveny's Class Actions, Mass Torts, and Aggregated Litigation Practice, represented Merck in the Vioxx litigation and is a preeminent defense mass tort practitioner. Most remarkable is the prospect in one firm of both John Beisner and Sheila Birnbaum, founder of Skadden's mass torts department and herself frequently named as the leading defense products liability lawyer. As someone who worked in New York at Skadden's mass torts department myself while in practice, I would also mention Skadden's depth of talent, including partners Raoul Kennedy, Jeffrey Lichtman, Russell Jackson, Mark Cheffo, and Steven Napolitano. Quite a group indeed.
Merck's International Litigation Strategy
An article in the New York Times entitled "Trial Puts Spotlight on Merck" describes Merck's continuing litigation internationally, with a focus on a Vioxx trial currently under way in Australia. This trial is receiving substantial media coverage in Australia, according to the Times, most of it negative publicity for Merck. Why continue this litigation strategy even after settling in the US for nearly $5 billion? The Times reports:
The article notes that plaintiffs lawyers from other countries (Canada in particular) are watching the trial and obtaining information they otherwise lacked.
May 12, 2009
An Empirical Assessment of Punitive Damages
Theodore Eisenberg (Cornell), Michael Heise and Martin T. Wells have recently posted "Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court's Decision in Exxon Shipping Co. v. Baker" - available on SSRN. Here is the abstract: