February 23, 2008
Two Preemption Podcasts
The USSC's decision in Riegel v. Medtronic has inspired a lot of discussion. The Federalist Society posted a podcast of Richard Epstein's comments on Riegel here. The American Enterprise Institute hosted a conference on Thursday featuring Michael Greve (AEI), Cathy Sharkey (NYU), Daniel Troy (Sidley Austin), and Brian Wolfman (Public Citizen). Ted Frank served as moderator. The podcast is here. (Via Olson/Point of Law).
February 22, 2008
Peer Review Discovery in Bextra/Celebrex Litigation
Pharmalot has the editorial from Science. For a view on the other side (i.e., not panicked at the prospect of discovery into peer review), see my Nebraska Law Review article from last year. The SSRN draft is here; feel free to send me an e-mail to get a reprint.
Two States Consider Increasing Damages Caps
Colorado and Oregon are both considering increases to their damage caps. Colorado is currently debating a bill that would raise the cap on noneconomic damages in medical malpractice cases from $300,000 to about $450,000. The bill was voted out of committee on Monday and will now be sent to the Senate floor for debate. The details are here.
Meanwhile, Oregon is reacting to a ruling of the Oregon Supreme Court late last year that the cap on damages payable by the state was unconstitutional as applied. A task force has been set up to study the issue of raising the cap, as was urged in a concurring opinion of last year's case. The details are here.
Class Action Filed Against New England Patriots
It appears a class action has been filed in a federal court in Louisiana against the New England Patriots and Coach Bill Belichick, arising out of alleged videotaping prior to the 2002 Super Bowl XXXVI between the Patriots and St. Louis Rams. The counts include, among others, tortious interference with contract and common law fraud. The complaint [PDF] is here: Download gary20v20patriots20complaint1.pdf. Thanks to Alberto Bernabe (The John Marshall Law School) for the tip.
February 21, 2008
Updated: After Riegel
The Drug & Device Law Blog has a looking-forward post about what happens post-Riegel -- and, by implication, what happens after the rest of the preemption trilogy if, as seems at least possible, much state tort litigation related to FDA-approved drugs is preempted.
The question, as they accurately note, comes down to whether the mostly-regulatory, mostly-not-litigation approach to pharma safety can work. (Or at least whether it can work as well as the litigation-intensive system existing now.) I expect many (including me) would feel much more comfortable about a broad preemption in a world where the FDA didn't confuse factories with similar names and the like. Indeed, that's an example the D&D folks mention as "not cutting it." But that's not the world we have. Perhaps in light of the new world of preemption, FDA funding will get increased and expectations raised. We'll see.
If it does turn out to be a catastrophe, of course, Congress has the power to explicitly reject preemption, express, implied, and otherwise.
The post is worth a read. I think they've accurately captured what their clients need now to do in order to show that preemption is not a mistake.
Update: Eric Turkewitz discusses the post and links to more.
(As usual, I have done consulting to pharma clients. I realize that it's actually been a while since I've had any of that work, but I still note it in case it's of interest.)
February 20, 2008
Breaking: Riegel is Out, 7-1 for Preemption
The opinion is here [PDF]. Scalia wrote the majority opinion; Ginsburg dissented. There's some concurring in part going on too by Stevens. The opinion concludes that state common law claims based on medical devices that received premarket approval are preempted by federal law.
Update: The Drug & Device blog has a post on it; it's the first semi-in-depth post I've seen so far, at least in my usual rotation.
Colorado's Fault-Based Car Insurance System: Lower Premiums, But Higher Hospital Costs
The Denver Post reports on a study of Colorado's switch from a no-fault auto insurance system to a fault-based system:
Two years after the insurance change in 2003, the average annual premium for a car dropped 10 percent to $827 in Colorado, while the national average stayed steady, according to the report prepared for Gov. Bill Ritter by Denver-based BBC Research & Consulting.
At the same time, state drivers had less insurance protection and reimbursements to hospitals that treated auto accident victims dropped by nearly half, leaving $85 million more in unpaid bills in 2006.
KRDO (via AP) notes the limitations of this study: (1) "premiums vary based on what type of coverage drivers chose to buy and that differences in average premiums can't necessarily be linked to a single cause," and (2) "money lost by hospitals was due both to more patients not having health insurance and more insurers paying hospitals based on negotiated reimbursement rates rather than actual charges."
Finally, according to Post's report, personal injury lawsuits in Colorado also have increased: "A state database also shows a 21 percent increase in the number of motor-vehicle personal injury cases filed in Denver District Court since 2002, with 3,117 cases filed last year."
Kentucky Supreme Court Forms Mass Tort & Class Action Committee
Kentucky Supreme Court Chief Justice Joseph E. Lambert has appointed 12 Kentucky attorneys to a "Mass Tort and Class Action Litigation Committee." According to a press release, this committee "will determine whether current court rules for attorneys and judges provide adequate safeguards against unethical conduct and whether rule changes may provide guidance to attorneys and courts dealing with complex litigation." The Herald-Dispatch (via AP) reports that the Committee plans to forward recommendations for reform to the state Supreme Court within the next year. According to the Herald-Dispatch story, Florida is also reviewing its procedures for mass torts.
February 19, 2008
Sebok Chastizes Oregon Supreme Court in Philip Morris Remand
In his latest FindLaw column, Tony Sebok addresses the Oregon Supreme Court's decision to again affirm a $79.5 million punitive damages award against Philip Morris following remand by the U.S. Supreme Court.
As Sebok points out, "[t]he Oregon Supreme Court held that reinstatement of the award was appropriate because there were independent and adequate state law grounds for doing so." But, as Sebok notes, "[t]hose grounds had never been previously identified by the Oregon Supreme Court in its two earlier decisions (the ones that had been reversed by the U.S. Supreme Court.)" Sebok argues that the Oregon Supreme Court put "form over substance" in a results-oriented fashion in order to avoid "giving a victory to a hated tobacco-company defendant." While Sebok finds it unlikely that the U.S. Supreme Court will grant cert in this case for the third time, he expresses his hope that the USSC will GVR the case because "[t]hat would be a fitting response to a state court that seems to think that winning is the only thing that matters."
Judge Dismisses Defamation Claim Based On "American Gangster"
About a month ago, a group of retired federal drug enforcement agents sued Universal Pictures, alleging that they were defamed by a statement appearing at the end of the film "American Gangster." The statement said that Harlem heroin dealer Frank Lucas' "collaboration (with law enforcement) led to the conviction of three-quarters of New York City's Drug Enforcement Agency."
As MSN reports, U.S. District Judge Colleen McMahon dismissed the suit because it failed to meet defamation law standards: no DEA Agent was identified, and there was no suggestion that any federal DEA agent was corrupt.
However, she did take a shot at NBC Universal, saying it would "behoove a major corporation like Universal (which is owned by a major news organization, NBC) not to put inaccurate statements at the end of popular films."
"There was and is no federal, state or local agency called the `New York City Drug Enforcement Agency,'" the judge noted. "To put it bluntly ... the `legend' that appears on-screen at the end of the film is wholly inaccurate."
February 18, 2008
Because "Let's Keep Fecal Matter Out of the Slushees" is Insufficiently Convincing
Seen in a restroom in rural Arkansas:
"Slanderous Kook: I'm a Slander Victim"
That's The Smoking Gun's headline, and it does a nice job of summarizing the story of Larry Sinclair, a Minnesota man who first made (unsubstantiated) allegations of doing various illegal things with Barack Obama and who has now sued Obama, Howard Dean, and another fellow who I assume to be a DNC media person of some sort, for defamation. I note that the case, filed pro se, has been assigned to my judge. One of those days I don't really miss clerking.
Beef: It's What's For, Er, Being Recalled
You have presumably already read about the recall of 143 million pounds of beef, the largest recall of beef in history. The USDA said (in the same story linked to) that it believes that most of the beef has already been eaten. For more, you can keep an eye on our blog-neighbors at the Food Law Prof Blog, the (plaintiffs-side) Food Poisoning Lawyer Blog, or, of course, the (also plaintiffs-side) Marler Blog.
The video that triggered much of the attention:
February 17, 2008
CPSC Overhaul Agreement In Sight
So reports the Washington Post. The compromise measure would more than double the beleaguered agency's budget and add some additional powers. Consumers' groups appear generally supportive (with a significant dissent from Public Citizen), while the National Association of Manufacturers was critical, contending that the new bill would not improve safety but instead merely increase litigation.