Movers & Shakers
December 27, 2007
News about lawyers and law firms in the product liability field.
Case Notes
December 27, 2007
Highlights of the latest product liability cases from around the country.
Extra-Judicial Opinions: The Argument Against a Fifth Daubert Factor
December 27, 2007
Although the Ninth Circuit did not rule that extra-judicial circumstances should be added to the four Supreme Court Daubert 'factors,' there is, nevertheless, superficial support by some courts in dicta that <i>Daubert II</i> held that an extra-judicial opinion is more reliable than one born out of the litigation. A closer look at this idea will reveal it is not one that should be adopted as a factor.
Consumer Fraud Actions: The Applicability of the Learned Intermediary Doctrine
December 27, 2007
There is much uncertainty surrounding if and how well-established defenses to traditional product liability claims will translate in non-personal injury consumer fraud actions. At the forefront of this uncertainty is the applicability of the learned intermediary doctrine in consumer fraud actions involving pharmaceuticals or medical devices.
Practice Tip: Rule 34's Direct Access Provision
December 27, 2007
Rule 34 of the Federal Rules of Civil Procedure permits a party to 'inspect, copy, test, or sample any designated documents or electronically stored information.' However, what exactly does that mean for corporate litigants? Can a plaintiff demand to show up at a client's offices and expect a seat in front of a keyboard? Will a client be forced to hire a third party to copy its hard drives — online shopping Web history and all — and hand them over to the opponent?
Nanotechnology: Law and Business at One-Billionth of a Meter
December 27, 2007
Nanotechnology represents a vast frontier for science, business, and law. Already governments and corporations are sinking an estimated $10 billion annually into nanotechnology R&D, and economic forecasters are predicting that nanotechnology will account for some 15% of all global manufacturing output by 2014 ' commerce valued at some $2.6 trillion. The plaintiff's bar, mass torts, and class actions cannot be too far behind such words.
Drugs and Devices
December 21, 2007
The Medical Device Amendments (MDA) to the Food Drug and Cosmetics Act contain an express preemption provision, namely 21 U.S.C. ' 360k(a), which prohibits states from imposing requirements different from, or in addition to, the specific federal requirements imposed on medical devices by FDA regulations. However, the U.S. Supreme Court has held, in a case involving ' 360k(a), that traditional state law claims are permissible and are not preempted if the common law duties involved parallel the duties statutorily imposed in the federal law and do not impose higher standards.
Hospital LIability for Medical Research Studies
December 21, 2007
Your hospital and physicians have the opportunity to conduct a study on a new method for the early detection of a disease. They go through the necessary procedures of obtaining patients at risk for the disease, and those patients knowingly agree to participate in the program. However, there may be one problem with this scenario. According to a recent case out of New York, your hospital and physicians may have just established a hospital-patient and/or physician-patient relationship with each of the study participants, exposing all of them to the risk of multiple medical malpractice lawsuits.
Online Promotions and Marketing
December 21, 2007
This final part addresses issues that affect not only those types of promotions, but also other types of online marketing and promotional activities; namely, the enforceability of online agreements and terms of use, consumer privacy and data security, the use of third-party Web sites and online services, commercial e-mails and special concerns relating to children.
