Case Notes
April 26, 2007
Highlights of the latest product liability cases from around the country.
Plaintiffs' Lawyers Find New Clients in Pharmaceutical Cases
April 26, 2007
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.
Recent Case Law Developments: Product Defect Claimed in Atkins Case; Burden of Removal under CAFA
April 26, 2007
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?
The Expansion of Product Liability Theory
April 26, 2007
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.
Practice Tip: The Dilemma of Backup Tapes in Mass Tort Litigation
April 26, 2007
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.
CAFA: Finding a Method to the Madness of 'Mass Actions'
April 26, 2007
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).
Supreme Court Upholds 'Partial Birth' Abortion Ban
April 18, 2007
President George W. Bush's appointment of Samuel Alito, Jr. to replace Sandra Day O'Connor on the Supreme Court last year explains, more than any other factor, April 18's historic Supreme Court decision upholding the federal ban on 'partial birth' abortions.
The RED ZONE - Selecting Outside Counsel
April 10, 2007
Buyers of legal services often hold attitudes unsuspected by law firms. These are often based upon needs which are unexployed by law firms. This article looks at the pressures GC's are under.
