Drug & Device News
November 29, 2006
The latest information from the pharmaceutical world.
Case Notes
November 28, 2006
Highlights of the latest product liability cases from around the country.
Exploring the Broader Application of the Delaware Court's 'Daubert' Decision
November 28, 2006
Companies that made and sold automotive friction materials (brakes and clutches) have invoked <i>Daubert</i> (or <i>Frey</i>) in attempts to preclude plaintiffs' evidence that the asbestos, once used in such products, contributes to causing disease. <i>See Daubert v. Merrell Dow Pharmaceuticals, Inc.</i>, 509 U.S. 579, 113 S.Ct. 2786 (1993). These defendants rely upon what they characterize as undisputed epidemiological evidence, purportedly showing that there is no significant increased risk associated with exposure to friction products. Their position is that such epidemiology is conclusive and that, without contrary epidemiology showing an increased risk, plaintiffs' causation evidence cannot pass muster under <i>Daubert</i>.
Excluding Unreliable Expert Testimony in Fire Cases
November 28, 2006
The first part of this article discussed the difficulty entailed in determining the cause of fires, especially those involving appliances, and the evidentiary problems that arise regarding expert testimony. Under Daubert and now Federal Rule of Evidence 703, which codifies Daubert principles, federal courts over time provided rules that permit assessment of challenged fire expert testimony to determine whether it was fairly admissible. This second installment discusses the body of fire cases establishing rules for assessment of expert testimony that has now developed.
Burden of Proof on Defendants Removing Under CAFA
November 28, 2006
When Congress passed the Class Action Fairness Act ('CAFA') in 2005, committee reports showed that several legislators believed the Act would shift from defendant to plaintiff the burden of proof with respect to the existence of federal removal jurisdiction. CAFA's legislative history contains statements from several members of Congress indicating that a plaintiff opposing removal under the Act would have the burden of establishing the absence of federal jurisdiction. For a short period following CAFA's passage, certain federal district courts found this legislative history controlling and held that CAFA shifted the burden of proof.
Practice Tip: Proposed Changes to the FRCP Regarding Electronic Discovery
November 28, 2006
Part One of this article discussed the proposed new amendments to the Federal Rules of Civil Procedure addressing discovery of electronically stored information, scheduled to have taken effect on Dec. 1, 2006. The conclusion advises about sanctions, safe harbor, and production issues.
Application of the Frye Standard to Medical Expert Testimony
November 28, 2006
This article addresses a recent decision of a New York state appellate court concerning the admissibility of expert medical testimony to establish causation in a case involving injuries allegedly incurred from treatment with a prescription medication. In <i>Zito v. Zabarsky</i>, 28 A.D.3d 42 (2d Dep't Jan. 24, 2006), the appellate court held that expert testimony that a plaintiff's injury was caused by a prescription medication was admissible when that testimony was based on a single case report indicating a link between the medication and the injury. The court's holding is inconsistent with other New York appellate decisions addressing the admissibility of expert testimony concerning medical causation and threatens to dilute New York's standard for making that assessment, and could have the same effect in other states that apply the same standard.
UK Subsidiary?
November 28, 2006
U.S. corporations with UK subsidiaries should be aware that company law in the UK is currently going through a process of significant review and change. There is compelling evidence that when the Company Law Reform Bill comes into force next year, the risks facing UK company directors will be at an all-time high. For the first time, the new legislation introduces a statutory basis for claims by shareholders against directors for negligence, default, breach of duty or breach of trust. In this article, we look at the impact of the proposed changes in the context of a global shift toward greater accountability to shareholders, and the potential consequences for businesses having a presence in the UK.
In the Spotlight: Silica Liability and the Premises Owner
November 28, 2006
Part One of this series explored the reasons why landlords should be concerned about silicosis litigation. This conclusion suggests some measures that landlords can take to avoid ' or at least reduce ' such litigation.
Rethinking Corporate Cooperation
November 28, 2006
In the post-Enron world, many public companies have come under intense scrutiny from the government. A diverse chorus of critics argues that the Department of Justice (DOJ) has gone too far, citing the overzealousness of line-level prosecutors, their failure to adhere to the measured tone struck by higher-level officials in their public pronouncements, and their general tendency to treat companies as racketeering organizations.
