Case Notes
Highlights of the latest product liability cases from around the country.
Million Dollar Awards Can Amount to Much Less
In August, a San Francisco Superior Court jury awarded $10.3 million in economic and non-economic damages in an asbestos case brought by a 60-year-old man allegedly suffering from mesothelioma. <i>Barnes v. Thorpe Insulation Co.</i>, 446017. It may be one of California's 10 largest compensatory verdicts for asbestos cases in the last 15 years.
Fosamax and the Public Hazards Discovery Doctrine
In September 1995, the U.S. Food and Drug Administration ('FDA') approved Merck's compound alendronate for various uses, including the treatment of osteoporosis and Paget's Disease. Alendronate is marketed by Merck as Fosamax'. It is one of Merck's biggest sellers, with approximating $3.5 billion per year in sales.
When Drug and Device Company Reps Enter the Room
It is becoming increasingly common for medical company representatives to be present in examination rooms, procedure rooms and even in operating rooms. Because of this trend, it is important not only for medical companies, but also for hospitals and physicians to be aware of the potential liability related to having these representatives present during examinations or procedures.
The Federal Stored Communications Act: Third-Party Subpoena to E-mail Service Provider of Anonymous Party Ruled Invalid
Are electronic records maintained by an electronic communications service provider fair game for discovery in civil litigation? <i>In O'Grady v. The Superior Court of Santa Clara County (Apple Computer, Inc.)</i>, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Ct. App, 6th Dist. 2006), a California state appeals court quashed a civil subpoena seeking e-mail records from an e-mail service provider, citing provisions of the federal Stored Communications Act ('SCA'), 18 U.S.C. §§2701-2712, that prohibit service providers from disclosing the contents of stored electronic communications. The ruling is controversial because it appears to be the first time, in the 20 years since the enactment of the SCA in 1986, that a court has held that the Act prohibits civil litigants from obtaining discovery of electronic communications from providers of e-mail and other electronic communications services, even when a court has reviewed and approved the subpoena.
Listening Your Way to New Business
According to a German proverb: 'A man has two ears and one mouth so that he hears much and speaks little.' Mark Twain followed up the thought by saying: 'If we were meant to talk more than listen, we would have two mouths and one ear.' And I'll add: We were given two ears and one mouth, and they should be used in that proportion in a sales call.
Internet Voting Waiting to Bloom
Two years ago, the Pentagon was poised to have 100,000 members of the military stationed overseas vote in federal elections over the Internet. The government canceled the plan, however, after it grew concerned it would not be possible to prevent hackers from affecting the results, that it could not examine the privately owned proprietary software that was to be used, and that there would not be a database of those who voted that it could check after the election. Nonetheless, online voting seems to be slowly gaining in popularity.
When Should Records Be Retained or Destroyed ' or Not?
Numerous courts have imposed sanctions on companies for negligent spoliation of documents under records-retention/destruction policies as punishment for violation of the common-law duty to preserve records when litigation is reasonably anticipated. In the aftermath of these cases, many companies have implemented litigation-hold policies to preserve potentially relevant documents.
