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For years, Hersh & Hersh ('H&H') has represented hundreds of users of a top-selling anti-psychotic drug in suits against its maker. Now the firm is taking on bigger clients against the same company: states that say they've been footing the public health costs from the drug. H&H's first such client against pharmaceutical giant Eli Lilly & Co. is the state of New Mexico, which claims it spent about $18 million on Zyprexa'-related medical expenses between 1999 and 2005.
This article discusses two interesting developments in recently published decisions. The <i>Gorran</i> case involves litigation over allegedly harmful consequences of following the well-known 'Atkins' Diet.' As will be seen, an attempt to structure the claim within product liability doctrine posed a big challenge. The <i>Blockbuster</i> decision answers a key question in light of new federal legislation, popularly called 'CAFA' (Class Action Fairness Act of 2005), which was intended to enhance removal of certain class actions from state to federal courts. The question is, who has the burden of proving CAFA's jurisdictional requirements: the defendant trying to stay in federal court or the plaintiff trying to send the case back to state court?
Depending on the source cited, California's expanding economy ranks in size, worldwide, anywhere between six and 10, if California were a country in and of itself. <i>(www.en.wikipedia.org/wiki/economyofCalifornia#endnote_worldranking)</i> California's position as a stand-alone economy may be matched as a stand-alone jurisdiction if recent appellate and trial court decisions permitting the expansion of the product liability theory to claims of environmental damage are upheld.
Parties involved in litigation have an obligation to preserve relevant information in existence at the time the duty to preserve attaches and must preserve relevant information created thereafter. <i>Zubulake v. UBS Warburg LLC</i>, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (<i>Zubulake IV</i>). Developing a comprehensive preservation plan to meet these obligations is both critical and difficult. The analysis of whether particular data need to be preserved involves murky, and often contradictory, legal standards.
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The Class Action Fairness Act of 2005 ('CAFA') expanded federal jurisdiction over putative class actions. Under CAFA, the federal diversity jurisdiction statute, 28 U.S.C. '1332, was amended to allow for both original and removal jurisdiction over putative class actions where: 1) the putative class action consists of at least 100 proposed class members; 2) the citizenship of at least one proposed class member is different from that of any defendant ('minimal diversity'); and 3) the matter in controversy, after aggregating the claims of the proposed class members, exceeds $5 million, exclusive of interest and costs. <i>See generally</i> P.L. 109-2 '4(a), codified at 28 U.S.C. '1332(d). This expanded federal diversity jurisdiction is subject to certain exceptions, including the 'local controversy' and 'home-state controversy' exceptions, where, <i>inter alia</i>, a certain percentage of putative class members and the 'primary defendants,' or defendants from whom 'significant relief is sought,' are citizens of the forum state. <i>See</i> 28 U.S.C. '1332(d)(3) and (4).
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Companies expect their general counsel to pay attention to all the little details, but some legal chiefs have fallen behind in keeping their own affairs in order. A survey by <i>The Corporate Counselor</i>'s ALM sibling magazine, <i>Corporate Counsel</i>, of the Fortune 250 found eight GCs who are not properly licensed in the state in which they work.
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News about lawyers and law firms in the insurance industry.
Highlights of the latest insurance cases from around the country.
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In asbestos insurance coverage litigation, the extent of an insurer's liability to its insured often turns on whether the court determines that the underlying asbestos injury took place while the insured was conducting operations, such as asbestos installation or tear out, or after such operations were completed. This distinction is important to the insurer because under many general liability policies injuries taking place during operations may be held as not subject to aggregate limits, whereas injuries taking place after completion typically are held subject to aggregate limits.
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Punitive damages long have been awarded 'to punish wrongdoers and thereby deter the commission of wrongful acts ... ' <i>Neal v. Farmers Ins. Exch.</i>, 21 Cal. 3d 910, 928 n.13, 148 Cal. Rptr. 389, 399 n.13 (1978). In order to accurately determine how large a punitive damage award should be, the financial condition of a defendant must be evaluated. If a punitive damage award is not large enough, then it is not likely to have any deterrent effect. Instead, because it simply would be a cost of doing business, it actually may serve as an incentive to further wrongful conduct. Therefore, in order to accurately determine how much of a punitive damage award is enough, but not too much, the financial condition of an insurance carrier needs to be evaluated. <i>Id.</i> at 928 (the wealth of defendant must be considered or else 'the function of deterrence ... will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort'); <i>Adams v. Murakami</i>, 54 Cal. 3d 105, 111-12, 284 Cal. Rptr. 318, 321 (1991) ('The most important question is whether the amount of the punitive damages award will have deterrent effect — without being excessive ... This balance cannot be made absent evidence of the defendant's financial condition.').