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The classic vicarious liability claim goes something like this: The patient is referred to the local hospital, receives treatment from a physician who is not an employee of the hospital, and now that an adverse outcome has arisen from the treatment, the patient brings a claim against both the physician and the hospital. The foundation of the vicarious liability claim is that the hospital has held out the physician as having 'apparent authority' to act as an agent of the hospital, thereby inducing a reasonable reliance by the patient on that agency. With this year's publication of the new Restatement of the Law (Third) of Agency (2006), there may be subtle changes in store in some courts' inquiry into this aspect of liability assignment; therefore, review of the case law as it now stands and analysis of the change in the Restatement are in order.
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Fire cases, especially those involving appliances, present unique challenges because the lack of compelling physical evidence often permits ex-perts to give unreliable opinions concerning causation. Fire usually destroys evidence showing its cause, and many fire scenes contain multiple possible causes in the area of origin. Moreover, the area of origin can only be defined in the most general sense in most significant cases because there are no fire patterns indicating a specific point of origin. Many times, the likely area of origin is no smaller than a large portion of a particular room. Moreover, property owners are reluctant to reveal that they negligently started a fire, so they provide misleading information in some cases. In many fires, certain or even likely identification of any particular cause is simply not possible.
Morbid obesity affects over 20 million Americans; indeed, between 3% and 5% of the adult population of the United States is morbidly obese, or clinically severely obese, the highest percentage of population of any country. Sabiston: Textbook of Surgery. 17th ed. Townsend, CM (ed) et al. Elsevier Saunders 2004 p. 357. Severe obesity and its co-morbidities are estimated to cause 280,000 deaths annually in the United States compared with 90,000 per year from breast and colon cancer. Given these numbers, it is not surprising that bariatric surgical operations are in more demand by patients than any other operation and have experienced the most rapid growth rate both of procedures performed and surgeons performing them than any area of general surgery over the past 3 years. Id.
The Food and Drug Administration's ('FDA') pre-emption analysis in the preamble to its Jan. 24, 2006 drug-labeling rule has resulted in a significant shift in judicial recognition of pre-emption in prescription drug litigation. While only a handful of courts had upheld prescription drug pre-emption arguments prior to the FDA preamble, a solid majority of courts informed by the FDA's preamble analysis have found state law claims pre-empted. Part One of this series discussed key battlegrounds upon which future FDA pre-emption arguments will be fought. This second installment reviews recent case law and also discusses two new FDA <i>amicus</i> briefs in which the FDA provides further guidance on the proper scope of pre-emption in prescription drug litigation.
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Why we are publishing this important Special Issue.
The Internet has revolutionized how companies conduct business. Utilizing Internet technologies, people now instantly share ideas with individuals around the globe, and companies can now reach previously inaccessible markets through their Web sites. Along with these advantages, however, the Internet and related technologies have added unique risks to today's businesses. As discussed in Part One of this article, these dangers include threats to a company's electronic information through viruses and worms as well as new legal liabilities stemming from a business' Internet usage. In addition, the Internet provides numerous threats to a business's intellectual property and makes unwary companies susceptible to suit for treading on the intellectual property rights of others. This part of the article reviews some of these hazards and summarizes steps that companies can take to minimize their exposure to these risks.
The past few weeks have witnessed the evolution of the world of user-upload sites.<br>MySpace.com and YouTube. com were once youthful rebels ' their founders were young, their audience was predominantly under 30. These sites allowed youngsters to post their own video material. This, in turn, enraged copyright holders, since some of the postings utilized (and sometimes were in their entirety) copyrighted material, taken without permission.
Prescription drug manufacturers have unsuccessfully asserted pre-emption as a defense to product liability claims for decades. A new FDA final rule and the first federal case interpreting that rule indicate that the tide may be turning. On May 25, 2006, Judge Baylson of the U.S. District Court for the Eastern District of Pennsylvania issued his opinion in <i>Colacicco v. Apotex, Inc.</i>, 432 F. Supp. 2d 514 (E.D. Pa. 2006). The decision is the first federal court opinion discussing the pre-emptive effect of the preamble to the FDA's final rule on prescription drug labeling (the 'preamble'). <i>See</i> 71 Fed. Reg. 3922, 3934 (Jan. 24, 2006).
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The House and Senate worked late into the night on Friday, Sept. 29, 2006 to finalize 'H.R. 4954: Security and Accountability For Every Port Act' or the SAFE Port Act and get it to the House floor. By early in the morning on Saturday, Sept. 30, 2006, just before adjourning for the election break, the House had passed the bill by a count of 409-2, and the Senate had agreed to the conference report by unanimous consent. Senate Majority Leader, and Presidential hopeful Bill Frist (R-TN) was the point-person for certain groups lobbying to ban Internet gambling with the addition of Title VIII to the legislation.
