Bifurcating Medical Malpractice Cases
A classic medical malpractice trial generally conjures up images of strategic trial lawyers, sympathetic plaintiffs, and zealous expert witnesses all culminating in one statement from the jury regarding both liability and damages. This vision -- one of a unitary trial -- contrasts starkly with a device of civil procedure called a bifurcated trial. One of the primary methods of bifurcating a trial is to separate the liability phase from the damages phase. Though widely utilized in other civil cases, bifurcation is seldom requested -- or granted -- in medical malpractice cases. What is the current state of the law and its application to medical malpractice cases, and what are some practical considerations that may factor into the decision whether to seek bifurcation?
Plaintiff Has Standing in Defective Device Lawsuit
A patient implanted with a medical device is vulnerable to injury if that device is defective, even long after the operation and recovery phases have passed. Some courts have recognized a right to certain types of recovery when there is a prospect of future injury, but others have not. In the recent case of <i>Sutton v. St. Jude Medical S.C. Inc.</i>, 2005 U.S. App. LEXIS 18013 (6th Cir. 9/23/05), the U.S. Court of Appeals for the Sixth Circuit was asked to answer a related threshold question of first impression in a medical monitoring case: Does an increased risk of harm requiring current medical monitoring serve as a sufficient injury in fact to confer standing to sue?
Employee Blogging
A growing number of employees are blogging (posting comments, photographs, and even audio streams, to an online diary or journal), both at work and at home. The proliferation of workplace-related blogging has created an additional legal minefield to be navigated by the growing number of employers whose workforce has access to computers, the Internet and related electronic information. This article provides an overview of some of the more significant legal and business issues facing employers whose employees engage in workplace-related blogging, and offers recommendations for such employers to consider in an effort to minimize the potential for legal liability associated with such blogging.
Use e-Billing Or Lose Business
Today, the vast majority of the top 200 U.S. law firms are sending electronic invoices to one or more clients. Many work with four or more e-billing vendors, depending on the client demands. Electronic billing can provide significant value to the firm and to its clients, but it is absolutely imperative to align corporate client e-billing goals with law-firm participation and vendor functionality. With proper alignment and support, e-billing is a powerful tool that strengthens the relationship between the attorney and client.
DOL's New FLSA Regulations and Recent Opinion Letters
The Department of Labor's new Fair Labor Standards Act (FLSA) (Wage and Hour Regulations) regulations, which went into effect Aug. 23, 2004, are an attempt to modernize pay scales, increase employee coverage, and clarify rules for employers. Nevertheless, if one were to judge merely by the sheer number of opinion letters the U.S. Department of Labor has issued since the regulations went into effect, it would seem that the new regulations have generated as much confusion as the previous ones. The DOL has issued 31 opinion letters since the effective date of the new regulations, nearly as many opinion letters as for the entire years 2001, 2002, and 2003. This article will summarize the major changes brought about by the FLSA regulations and examine this recent spate of DOL opinion letters.
Make It Go Away!
Your client company is a target of a criminal investigation. You've read in the news about "Deferred Prosecution Agreements" and you even pulled out your old Business Crimes Bulletin for an early article on the topic ("Make It Go Away," March 2003). Can you get one for your client? What will it look like? What terms can you negotiate?
Wireless and Joint Commercial E-mail Messages Under CAN-SPAM
E-mail and wireless marketers have been coping with some confusion for the last 2 years over the application of the federal CAN-SPAM Act to certain kinds of promotional e-mail campaigns. The agencies responsible for promulgating regulations under the Act recently have provided some important, practical guidance on the use of e-mail messages sent to wireless devices such as cell phones and the conduct of joint e-mail campaigns. Now, with guidance from the regulators, corporate counsel can not only know the legal requirements, they can also guide their companies in using the regulations to their own best advantage.
Perez v. Wyeth and Direct-to-Consumer Ads
Six years ago, in <i>Perez v. Wyeth Laboratories Inc.</i>, 161 N.J. 1 (1999), the New Jersey Supreme Court enunciated a novel exception to the learned intermediary doctrine intended to address the rise of direct-to-consumer (DTC) marketing of prescription pharmaceuticals. The learned intermediary doctrine is a common law principle, codified in many states, that shields prescription pharmaceutical manufacturers from liability for failing to warn consumers of the potential side-effects associated with their products as long as they have adequately warned prescribing physicians. The <i>Perez</i> court, however, held that when pharmaceutical companies employ DTC advertising, there is an additional duty to warn consumers of potential risks.
Silica Litigation Case Law and Tort Reforms: A State-By-State Overview
After seeing the effects of asbestos litigation on the courts and the economy — such as bankruptcy filings and the economic fallout that ensues — few want to see a repeat with silica litigation. On the federal level, a comprehensive bill has been introduced to address the current and future handling of asbestos, silica and mixed dust claims. The original proposal sought to create a $140 billion national trust fund for asbestos claims. A subsequent draft, which came out of committee May 26, added silica and mixed dust claims to the agenda.
