Using Daubert to Defeat Causation in the Delayed Diagnosis Claim
July 29, 2005
<b><i>Part Two of a Two-Part Article</i></b>: The <i>McDowell</i> case discussed in the first part of this article presented the question of "whether it is so if an expert says it is so." <i>See Viterbo v. Dow Chem. Co.</i>, 826 F.2d 420, 421 (5th Cir. 1987). <i>Daubert</i> and its progeny answered in the negative and established that an expert may not present a bare causation conclusion to the jury when that expert has no scientific basis for that conclusion or for any of the predicate inferences leading up to it. The <i>McDowell</i> claim failed because a physician's personal clinical experience, sometimes called anecdotal experience, is simply not a proper scientific basis for causation opinion testimony.
<b>Commentary:</b> 'Unanimous' Vote In Grokster Has Split Views
July 28, 2005
In its opinion, the Supreme Court clearly focused the test for copyright infringement liability on the subjective question of the purpose of the software's distribution ' an approach that better comports with basic notions of fairness than that of the courts below. But read together, the plurality opinion and two concurring opinions raise a new set of disquieting questions.
Remedying <i>Grokster</i>
July 28, 2005
Don't you hate it when you ask someone a question and, rather than answering it, they choose to answer a different one? Then you understand the frustration…
Drug and Medical Device Manufacturers
July 28, 2005
Following a guilty plea last year by a major pharmaceutical company, Associate Attorney General Robert McCallum declared that "[t]he Department of Justice is committed to rooting out and prosecuting health care fraud. It is of paramount importance that the Department use every legal tool at its disposal to assure the health and safety of the consumers of America's health care system." The tools -- the variety of different criminal statutes and theories used to prosecute drug and device manufacturers -- are so diverse as to defy easy summary.
Should We All Move to Canada?
July 28, 2005
The high cost of prescription medications in the United States has been troubling health care providers and their patients for years. Physicians worry that it will do no good to prescribe a medication to someone who won't be able to afford to buy it, and patients who try to save money by taking less than the prescribed dose worry that that they're putting their health in danger. Any failed medical treatment that harms a patient is fertile ground for a lawsuit against the physician, even if he or she is not the one to blame. Should medical practitioners suggest imported drugs to their patients who might otherwise not be able to afford their prescribed medications?
Drug and Medical Device Manufacturers
July 28, 2005
Following a guilty plea last year by a major pharmaceutical company, Associate Attorney General Robert McCallum declared that "[t]he Department of Justice is committed to rooting out and prosecuting health care fraud. It is of paramount importance that the Department use every legal tool at its disposal to assure the health and safety of the consumers of America's health care system." The tools -- the variety of different criminal statutes and theories used to prosecute drug and device manufacturers -- are so diverse as to defy easy summary.
Practice Tip: Experts and the Morass of Mass Tort Litigation
July 28, 2005
An expert retained in mass tort litigation may be required to focus on multiple cases consolidated for discovery and trial, involving thousands of pages of medical records, deposition transcripts, and other discovery material. Expert opinions in mass tort litigation must address both case-specific and generic issues. A statement that is innocuous in one case may be harmful when applied to another. Taken together with the technical sophistication of the issues involved in each case, these issues necessitate a measured approach for dealing with experts.
FCPA Enforcement In A Sarbanes-Oxley World
July 28, 2005
American companies and their officers and employees doing business overseas are learning the hard way about the Foreign Corrupt Practices Act (FCPA). For many years after its enactment in 1977, the government initiated relatively few investigations and enforcement actions charging violations of the Act. This was largely due to the government's difficulties in evidence gathering. Recently, however, the number of such enforcement actions has increased significantly.
