One question that has been raised in pre-emption decisions is the degree of deference to be shown an agency's explicit statement that it intends certain failure-to-warn claims to be pre-empted. For example, in the pharmaceutical arena, the Food and Drug Administration ('FDA') through the Department of Justice ('DOJ') filed amicus briefs in several lawsuits to reiterate its position on pre-emption of state law tort claims. In these briefs, the United States stressed that in the context of warnings, 'more is not always better.' Amicus Brief for the United States, Kallas v. Pfizer, No. 04-00998 (D. Utah Sept. 29, 2005) at 28. The FDA's regulation of prescription drugs ensures each drug's optimal use by requiring inclusion of only scientifically substantiated warnings. Id. Plaintiffs' failure-to-warn claims therefore 'stand as an obstacle' to the FDA's accomplishment of its congressionally mandated purpose of ensuring the public health and are therefore pre-empted. See Id. The FDA has also stated its position on pre-emption in the preamble to its Rulemaking for Labeling requirement, which became effective on June 30, 2006. See 21 C.F.R. '10.85(d)(1) (2006).
- October 30, 2006Vivian M. Quinn and Elizabeth A. Brophy
Like most rights, the right to a jury trial can be waived. In general, commercial landlords disfavor jury trials, especially when the opposing party is an individual, finding the outcomes of such trials to be either too uncertain, or if consistent, consistently against the landlord's interest. The general perception is that juries tend to favor individuals in disputes against institutional parties as a way to rectify a perceived injustice that corporations and other institutions allegedly inflict on the public. Jury trials are also more costly than non-jury trials, and parties may waive their right to a jury trial to avoid the added expense.
October 30, 2006Gary A. Goodman and Miles CowanLeases keep getting longer and tougher. Unfortunately, sometimes the people drafting them outsmart themselves and include unenforceable provisions.
October 30, 2006Jack GarsonRulings of importance to you and your practice.
October 30, 2006ALM Staff | Law Journal Newsletters |The latest cases for your review.
October 30, 2006ALM Staff | Law Journal Newsletters |Accounting-Malpractice Claim/Arbitration
Contributory and Vicarious Copyright Infringement/Interlocutory Appeal
Copyright Infringement/Substantial Similarity
Copyright-Infringement Filing/Bankruptcy PurchaseOctober 30, 2006ALM Staff | Law Journal Newsletters |Recent court rulings in e-discovery.
October 30, 2006ALM Staff | Law Journal Newsletters |With state laws governing the capture and securing of evidence ' including electronic data ' the possibility of spoliation is a genuine concern. Not only could evidence subjected to spoliation be inadmissible, but misdemeanor or felony charges could apply to the collector and the contracting party.
Identifying electronic evidence, much like in a physical crime scene, starts with drawing increasing concentric circles around the victim or perpetrator. Some care must be taken regarding a company's policies and practices. State and federal law on personal property may be involved if the employee used personal devices legally or illegally in combination with the company's assets, and a warrant or commencement of discovery may be required to access personal property or equipment on private property.October 30, 2006Jason Park