Jury Hits Merck with $9M in Punitives
On April 11, a jury in Atlantic City, NJ, ordered Merck & Co. to pay $9 million in punitive damages to a user of Vioxx, finding the drug maker knowingly withheld data from federal regulators about the painkiller's cardiovascular risks. Merck withdrew Vioxx from the market in 2004 when a study showed it doubled heart attack risk after 18 months of use. The Atlantic City trial was the first involving plaintiffs who had used Vioxx longer than that period of time.
PA Court Declines to Apply 'Heeding Presumption' to Pharmaceutical Failure-to-Warn Cases
<b><i>Part One of a Two-Part Series.</i></b> Last December, the Pennsylvania Superior Court handed a sharp blow to pharmaceutical liability plaintiffs' lawyers in the state who have consistently argued that a 'heeding presumption' should apply to their failure-to-warn claims and, in effect, relieve them of the burden of proving causation. A unanimous three-member panel upheld the decision of the trial court awarding summary judgment to the defendant because the plaintiff 'presented no evidence that a different warning would have changed [the prescribing physician's] decision to prescribe [the drug at issue] for Appellant.' <i>Lineberger v. Wyeth</i>, 2006 PA Super. 35, at *24 (Pa. Super. Ct., Feb. 23, 2006).
Practice Tip
The Bush administration has adopted a new tactic in its ongoing efforts to create liability shields on behalf of various industries, including the pharmaceutical industry. Despite a number of failed legislative attempts at tort reform, on Jan. 18, the administration quietly enacted its own liability-shield agenda under the guise of federal pre-emption. A new U.S. Food and Drug Administration ('FDA') rule titled <i>'Final Rule: Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products'</i> (21 C.F.R. 201, 314 and 601), which goes into effect on June 30, 2006, extensively modifies the format of prescription drug information, commonly referred to as the 'package insert' and published in the Physician's Desk Reference', and will come with an attempt at broad federal pre-emption.
Putting Plaintiff to the Test: The Crashworthiness Doctrine
<b><i>Part Two of a Two-Part Series.</i></b> The plaintiff's burden of proof in a 'crashworthiness case' is dramatically higher than in the standard product liability action. In the automotive context, these cases are sometimes referred to as 'second collision' cases because the manufacturer's liability is based not upon the 'first collision' between the vehicles involved in the accident, but upon the 'second collision' comprised of the physical contact made between the plaintiff's body and the vehicle's interior. Generally, in a crashworthiness case, the plaintiff must prove that the alleged defect enhanced his or her injuries beyond what would have otherwise been sustained in the collision. A failure to meet the weighty burden of proof in a crashworthiness case can be fatal to one's case. The first part of this two-part series discussed a recent New York case, <i>Katz v. Ford Motor Company and Hempstead Ford, Inc.</i>, No. 18933-00 (N.Y. Sup. Ct., Suffolk Cty., Dec. 7, 2005), and the definition of crashworthiness. The second part addresses whether the crashworthiness doctrine applies to a 'failure to deploy' case, how to charge the jury, and how to apportion the damages among tort-feasors.
Is 'No Use' Always a 'Fair Use'?
In order to avoid liability for trademark infringement relating to the sale of keywords corresponding to trademarks, search engines, including Google, are attacking the concept that trademark owners should be able to protect the 'commercial magnetism' of their marks. Recently, in <i>Rescue.com v. Google, Inc.</i>, No. 5:04-CV-1056 (N.D.N.Y.), Google argued that the trademark laws 'are not meant to protect consumer good will [sic] created through extensive, skillful, and costly advertising.' Google's Reply Brief at 4 n.4 (2005) (citing <i>Smith v. Chanel, Inc.</i>, 402 F.2d 562, 566 (9th Cir. 1968)).
Keep Internet Disclosures From Costing Your Company
With securities claims involving improper Internet disclosures on the rise, a company would be wise to institute a review process, carried out by a qualified person (general counsel or compliance officer), to assure that its Internet disclosures are accurate, complete, and appropriate. Following are some questions that should be asked as part of an Internet review, along with suggestions for 'common sense' measures for reducing a company's exposure and keeping pace with Web evolution.
Surveys in Patent Infringement Litigation: The Next Frontier
Most experienced intellectual property attorneys understand the significant role surveys play in trademark infringement and other Lanham Act cases, but relatively few are likely to have considered the use of such research in patent infringement matters. That could soon change in light of the recent admission of a survey into evidence in <i>Applera Corporation, et al. v. MJ Research, Inc., et al.</i>, No. 3:98cv1201 (D. Conn. Aug. 26, 2005). The survey evidence, which showed that 96% of the defendant's customers used its products to perform a patented process, was admitted as evidence in support of a claim of inducement to infringe. The court admitted the survey into evidence over various objections by the defendant, who had argued that the inducement claim could not be proven without the survey.
Wikipedia Creates Concerns Aplenty About the Web's Reliability
Although the online encyclopedia Wikipedia recently added its 1 millionth English-language article, controversy over the value of its content continues. Concerns arise because Wikipedia has no single editor, and anyone (or virtually anyone) can add a new entry or edit an existing one. <br>Reliability concerns are in no way limited to Wikipedia, but pervade legal research done on the Internet.
Jury Hits Merck With $9M in Punitives
On April 11, a jury in Atlantic City, NJ, ordered Merck & Co. to pay $9 million in punitive damages to a user of Vioxx, finding the drug maker knowingly withheld data from federal regulators about the painkiller's cardiovascular risks. Merck withdrew Vioxx from the market in 2004 when a study showed it doubled heart attack risk after 18 months of use. The Atlantic City trial was the first involving plaintiffs who had used Vioxx longer than that period of time.
