Using Daubert to Defeat Causation in the Delayed Diagnosis Claim
June 27, 2005
The old maxim, "the earlier the treatment, the better the outcome" has been a longtime staple in plaintiffs' collection of so-called "expert medical opinions." Let's face it -- the notion that earlier treatment is preferable, while imprecise, seems like a logical conclusion for most of us. However, the Eleventh Circuit's recent decision in <i>McDowell v. Brown</i>, 392 F.3d 1283 (11th Cir. 2004), establishes that such general medical principles, which are typically based on no more than the expert physician's common-sense and anecdotal experience, are far too speculative to overcome an evidentiary challenge pursuant to <i>Daubert v. Merrell Dow Pharmeceuticals, Inc.</i>, 509 U.S. 579 (1993) and therefore fail to establish causation in a medical negligence case. This is particularly so in those cases where the defendant medical provider maintains that the plaintiff's unavoidable and unpredictable underlying condition -- and not an alleged delay in treatment -- caused the plaintiff's injury, such that the plaintiff would have experienced the same level of injury despite any alleged delay.
Verdicts
June 27, 2005
The latest rulings you need to know.
Med Mal News
June 27, 2005
News from around the country for your review.
Recoupment Revisited: Why the Majority Should Adopt the Minority Position
June 27, 2005
In its April 2005 issue, <i>ICLB</i> published an article discussing the varying approaches courts have taken when addressing whether an insurer may conditionally defend its insured and later obtain reimbursement of defense costs if it is determined that a claim is outside the scope of coverage. <i>See</i> Pastor, Sherilyn: Insurers' Rights to Recoup Defense Costs, <i>Insurance Coverage Law Bulletin</i>, Vol. 4, No. 3 at p. 1 (Apr. 2005). As the issue was going to press, the Illinois Supreme Court issued an opinion rejecting the purported right of recoupment. <i>See General Agents Ins. Co. of Am., Inc. v. Midwest Sporting Goods Co.</i>, No. 98814, 2005 WL 674685 (Ill. March 24, 2005). Noting that its position was the "minority" view, the court in <i>General Agents</i> declined to recognize the so-called "right of recoupment" both as a matter of contract law and a matter of policy. (For an in-depth review of the <i>General Agents</i> decision, <i>see</i> Case Notes at p. 7.) The court was right on both counts.
Case Briefs
June 27, 2005
Highlights of the latest insurance cases from around the country.
Current Guidance on Rescission Standards
June 27, 2005
In light of the numerous high-profile securities fraud scandals over the last few years, insurers have more frequently sought to rescind insurance policies on the basis that the insureds supplied false information in applying for such policies, just as they did in misleading their investors, regulators and others. For example, insurers have pursued rescission of policies issued to WorldCom, HealthSouth, Adelphia, Tyco and Xerox. As a result, courts across the country have had more opportunities to clarify the law in this area. Although the law varies somewhat from state to state, judicial opinions on this subject have addressed issues that are fundamentally important to insurers.
Case Notes
June 27, 2005
Highlights of the latest product liability cases from around the country.
West Virginia Supreme Court Strikes Blow Against 'Drive-By' Class Action Certifications
June 27, 2005
Recently, the West Virginia Supreme Court of Appeals dealt a severe blow to class actions in that state. In laying the groundwork for a more stringent approach to class certification in West Virginia, the court in <i>State v. Madden</i>, 2004 WL 2750996 (W.Va. 2004), held that it was impermissible for a court in West Virginia, a state that was widely reputed to have the most liberal medical monitoring standards in the country, to include class members from states that have not adopted such liberal theories of recovery. The decision is also important for the court's admonition that classes should only be certified where all class members meet the criteria necessary for certification and its rejection of "drive-by" certifications.
Federal Pre-emption of Failure to Warn Claims in Recent Drug Cases
June 27, 2005
In 2004, four drug cases, which were decided in different jurisdictions, effectively split on the issue of whether FDA labeling regulations pre-empt state common law failure to warn claims. <i>Fisher v. Professional Compounding Centers of America, Inc.</i>, 311 F. Supp. 2d 1008 (D. Nev. 2004) and <i>Kurer v. Parke, Davis & Co.</i>, 272 Wis. 2d 390, 679 N.W.2d 867 (Wis. Ct. App. 2004) endorsed the view that FDA labeling regulations did not pre-empt common law failure to warn claims in drug cases, while <i>Dusek v. Pfizer Inc.</i>, 2004 WL 2191804 (S.D. Tex., Feb. 20, 2004) and <i>Needleman v. Pfizer Inc.</i>, 2004 WL 1773697 (N.D.Tex., Aug. 6, 2004) held that FDA regulations do pre-empt failure to warn claims, at least in certain circumstances.
