Practice Tip: Experts and the Morass of Mass Tort Litigation
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
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.
Improperly Attempting to Circumvent the Learned Intermediary Doctrine: Challenging the Adequacy of Warnings to Physicians
The learned intermediary doctrine is one of the most important doctrines for medical device and pharmaceutical drug defendants in product liability cases because under the doctrine, they are often able to obtain summary judgment on failure to warn claims. (The learned intermediary doctrine has been adopted and recognized in at least 45 states. <i>See Larkin v. Pfizer, Inc.</i>, 153 S.W.3d 758, 767 (Ky. 2005).) The learned intermediary doctrine provides that a manufacturer, designer or distributor of a medical device or pharmaceutical drug does not have a duty to directly warn patients of possible dangers associated with the use of the device or drug. <i>See Presto v. Sandoz Pharm. Corp.</i>, 487 S.E.2d 70 (Ga. Ct. App. 1997). Rather, "'a warning as to possible danger in its use to the prescribing physician is sufficient.'" <i>Id.</i> at 73.
Case Notes
Highlights of the latest product liability cases from around the country.
Extraterritorial Discovery Disputes: Do Foreign Litigants Stand a Chance?
Say you defend a British corporation that is subject to the laws of England and Wales against a U.S. plaintiff who is suing your client for the negligent design and manufacture of a vehicle that resulted in the death of her child. The plaintiff's claim alleges that your client was aware of the risks associated with the design of the vehicle and knew that safer alternative designs were available. Because of cost concerns, however, your client knowingly and intentionally decided to forego the added safety features and implement the cheaper alternative.
Medicare Liens: A Stumbling Block to Settlement
Faced with rising litigation costs and unpredictable juries, it is understandable that many product liability litigants — on both sides of the courtroom — eventually think about settlement in lieu of trial. In cases involving catastrophic injury, however, staggering medical expense liens often control the feasibility of reaching an acceptable agreement.
Online: Learn About Prescription Drugs on the Web
Public Citizen ("PC"), a public interest group, has released a new edition of "Worst Pills, Best Pills," a book analyzing at least 500 prescription drugs, and concluding that at least 200 of them may pose health risks. The group has launched a Web site, <i>www.worstpills.org</i>, which provides information about unsafe drugs, drug pricing and access to the entire contents of the just-published book for a subscription fee.
You Just Can't Give It Away
Last month, we explained that the proposition that a creditor can do whatever it wants with its recovery from a Chapter 11 debtor may seem to be a fundamental right -- but that in the context of confirmation of a Chapter 11 plan, that right may not be unqualified. It may, in fact, violate well-established bankruptcy principles. We went on to explain that one such principle that applies only in the context of non-consensual confirmation of a Chapter 11 plan, or "cramdown," is commonly referred to as the "absolute priority rule," a pre-Bankruptcy Code maxim that established a strict hierarchy of payment among claims of differing priorities.
Where Will Silica Litigation Go?
It has been reported in the national press that plaintiffs' lawyers are mapping out a litigation scenario for silica based on the assumption that it will follow the asbestos model, <i>e.g.</i>, Warren, Susan, "Silicosis Suits Rise Like Dust: Lawyers in Asbestos Cases Target Many of the Same Companies," Wall St. J., Sept. 4, 2003, at B5; Glater, Jonathan D., "Suits on Silica Being Compared to Asbestos Cases," N.Y. Times, Sept. 6, 2003, at C1.
