Does the Food and Drug Administration have authority to force manufacturers of prescription drug products to switch those products to over-the-counter (OTC) distribution against their will? The FDA is currently grappling with this issue, a dispute that has generated substantial controversy, including statements by FDA officials and coverage in leading newspapers.
Chief Justice Ralph J. Cappy of Pennsylvania's Supreme Court issued an opinion on Dec. 31, 2003, declaring that the State of Pennsylvania would remain a "Frye state" and would not follow suit with much of the rest of the nation in using the Daubert test to qualify expert witnesses.
Recent rulings of importance to you and your practice.
Bankruptcy lawyers who rarely visit a courtroom may think they do not need to worry about the rules of evidence. Yet evidentiary rules can provide critical protections. In a typical case or negotiation, lawyers create and circulate tremendous amounts of information -- much of which would be potentially damaging if obtained by other parties. To protect this information, bankruptcy lawyers need to be familiar with the rules of evidence and how courts have interpreted these rules.
Members of official creditors' committees in Chapter 11 cases owe a fiduciary duty to the entire body of unsecured creditors. See Woods v. City National Bank, 312 U.S. 262, 268-69 (1941). As fiduciaries, committee members should have undivided loyalty to those they serve, free of any conflict of interest. Id. The imposition of such a broad duty to unsecured creditors generally might be otherwise unremarkable, except that committee members themselves obviously have significant selfish interests in the outcome of the bankruptcy case.
How does a bankruptcy professional get the court's attention on fees? Chief Bankruptcy Judge Mary F. Walrath of the District of Delaware answered the question with a detailed 33-page opinion on Dec. 23, 2003. In re Fleming Companies, Inc., et al, 2003 Bankr. LEXIS 1727 (Bankr. D. Del. 2003). Disposing of an objection by the United States Trustee to interim professional fee applications, Judge Walrath said she would "reduce the fees requested by the Debtors' professionals." Id. at 5. Not exactly the kind of attention any lawyer wants.
Voir dire, or a preliminary cross-examination that takes place prior to the direct examination of an opposing expert's qualifications, is a useful, often under-appreciated, tool to preclude, limit, or discredit expert testimony. We addresses only evidentiary voir dire in this article, not Daubert/Frye hearings regarding the admissibility of scientific evidence.
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