Med Mal News
January 27, 2006
The latest news of interest to you and your practice.
Confidential Client Communications? Maybe Not
January 18, 2006
Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that SOX was needed to deal with "a general erosion of standards of <i>integrity and ethics</i> in the corporate and financial world ... The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus." (emphasis added).) Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers. To that end, the SEC imposes certain reporting requirements on corporate counselors, attempts to preempt state ethics rules, and DOJ prosecutors routinely pressure "target" corporations to waive the attorney-client privilege to obtain "cooperation" points. Corporate counselors must be aware of those initiatives to properly balance their competing obligations.
Practice Tip: Navigating the FDA's Recent RiskMAP Guidance
January 06, 2006
As part of the Food and Drug Administration's ("FDA") ongoing and comprehensive efforts to minimize risks while preserving the benefits of medical products, the FDA recently released three industry guidance documents on risk management strategies. These final guidance documents, applicable to various stages of drug and biological product development, will assist manufacturers in developing and improving methods to assess and monitor the risks associated with drugs and biologics. The risk minimization action plan is one of these initiatives that promises to further tip the balance of the risk-benefit profile of drugs and devices.
Case Notes
January 06, 2006
Highlights of the latest product liability cases from around the country.
Punitive Damages: How Much Is Too Much? Two Recent California Supreme Court Opinions Leave the Question Unanswered
January 06, 2006
In June 2005, in two companion decisions, the California Supreme Court for the first time interpreted a line of recent, landmark U.S. Supreme Court opinions on punitive damages. In so doing, the California Supreme Court attempted to bring clarity to the politically charged and legally nettlesome issue of when punitive damage awards become constitutionally excessive. However, the court's decisions may raise more questions than they answer. Instead of setting a bright-line rule for lower courts and litigants to follow (such as a fixed ratio of punitive damages to compensatory damages beyond which punitive damages must not go — something some courts of appeal attempted to do in response to the high court's landmark opinions), the court in <i>Lionel Simon v. San Paolo U.S. Holding Co., Inc.</i> No. S121723 (June 16, 2005) ("<i>Simon</i>"), and <i>Greg Johnson, et al., v. Ford Motor Company,</i> No. S121933 (June 16, 2005) ("<i>Johnson</i>"), elected to constrain, but fundamentally preserve, the possibility of truly punishing punitive damage awards.
Pre-Certification Discovery of Absent Class Members
January 06, 2006
The battle for class certification makes or breaks many lawsuits. Often, the certification decision hinges on whether there are questions of law or fact common to the class and whether the claims and defenses of the representative parties are typical of those of the class as a whole. Because the defense has no opportunity to question the class members themselves and to compare the claims and defenses of the named plaintiffs with those of the absent class members, it faces a big problem overcoming class certification: How is a defendant to know, let alone prove to the court: 1) that the claims of the class as a whole are not common and 2) that the claims of the named plaintiffs are sufficiently dissimilar to those of the class. In order to provide the court with record evidence on which it can base a decision as to whether individual or common issues predominate, parties should be permitted to engage in discovery of absent class members for class certification purposes.
Online: Learn About Punitive Damages on the Web
January 06, 2006
There is a wealth of information about punitive damages on the Internet, including the Web sites of various organizations and law schools, as well as blogs. Here is a sample of what's available.
Asbestos Bankruptcy Cases: The Rise of Objections By Disfavored Plaintiffs' Attorneys
January 05, 2006
There has been an emerging and interesting development in recent asbestos-related bankruptcy cases: the filing of objections by disfavored plaintiffs' attorneys. The filing of asbestos-related bankruptcy cases has increased dramatically with the establishment of Section 524(g) of the Bankruptcy Code. <i>See</i> Stephen J. Carroll, et al., <i>Asbestos Litigation</i>, 151-55 (Rand Inst. for Civ. Just., 2005) (reporting at least 73 asbestos-related bankruptcies since 1982, more than half of which were filed in the past 6 years). Section 524(g) provides asbestos-challenged companies a way to reorganize to shed their asbestos liabilities and channel all future asbestos claims to a trust established through the bankruptcy process. To achieve confirmation of a plan incorporating relief under Section 524(g), a debtor must have the consenting vote of 75% of the present affected asbestos claimants, among other things. This consent requirement has led debtors to enter into negotiations with asbestos claimants in advance of a bankruptcy filing in order to ensure sufficient voter approval for the plan of reorganization.
