HB Tort Notes Archives

A Generic Drug Failure to Warn Claim? –Michelle Hart Yeary

April 14th, 2019|Categories: HB Tort Notes|Tags: Dechert, failure to warn, mensing, michelle yeary, off-label, preemption|

"Rather than focusing on what plaintiff’s off-label marketing claim really was – a claim that defendant’s label should have contained different information or warnings about off-label uses – an impliedly preempted claim, the court got distracted trying to fit the case in under Bausch and started talking about parallel violation claims. "The court found that because plaintiff was alleging a violation of federal regulations, his claims “run parallel to [defendant’s] state law duties,” and thus were not preempted. The problem with this is that Mensing is not an express preemption case. It was an implied preemption case, and the district court had no business applying 'parallel claim' analysis to implied preemption, where a 'parallel claim' exception does not exist. It makes no difference whether plaintiff’s off-label promotion claim is 'parallel' to federal regulations, defendant could not have offered any different warning so any claim that the warning or information it provided was inadequate is preempted under Mensing. The court was trying to fit a square peg into a round whole – and the only way that works is to cut off the corners." Read the complete post by Dechert's Michelle Hart Yeary here!

Private Calif. Plaintiffs Seemingly Enforcing FDCA, Drug & Device Law Blog Says

April 12th, 2019|Categories: HB Tort Notes|

"Doctors treated two plaintiffs for severe psychological problems, ultimately employing defendant’s Thymatron System IV to perform electroconvulsive therapy. Plaintiffs claimed that, as a result, they suffered brain trauma, memory loss and other brain-related injuries. They filed product liability claims based, in the main, on the manufacturer’s alleged failure to report adverse events. The decision in Riera addressed summary judgment motions, ones filed by both the plaintiffs and the defendant. You don’t ordinarily see summary judgment motions by plaintiffs, and Riera is an example of why." Read the complete post by John J. Sullivan of Cozen O'Connor.

Million-Dollar Settlement in Employee Background Check Case, Top Class Actions Reports

April 11th, 2019|Categories: HB Risk Notes, HB Tort Notes|Tags: background checks, employee background, employee privacy, fair credit reporting, FCRA|

"Job applicants have secured a $1.2 million settlement ending allegations that Maxim Healthcare did not properly inform potential employees that they would have a consumer report pulled as part of the application process. Class Members include those who applied and got a job with the healthcare services company between May 5, 2009 and Aug. 27, 2012, who were also subject to a consumer report check by Maxim. The Maxim Healthcare class action lawsuit claimed that Maxim violated federal consumer privacy protections when procuring employee background checks."

Attorney General Ferguson of Washington Sues State’s Top Opioid Distributers

March 20th, 2019|Categories: Emerging Litigation & Risk, HB Risk Notes, HB Tort Notes|Tags: Attorney General, Lawsuit, Opioids, oxycontin, purdue pharma, Washington AG, Washington opioids|

“We are woefully under-resourced when it comes to treatment. The people who are responsible for this epidemic should being paying for it. We are going to hold these companies accountable and get more money into our communities for treatment.” --Washington AG Bob Ferguson The three largest distributors of prescription opioids in Washington State are being sued by Attorney General Bob Ferguson for fueling the state's opioid epidemic. Detailed in Ferguson's King County lawsuit are the billions of dollars made from these suspicious shipments of over 2 billion pills of unregulated oxycodone, fentanyl, hydrocodone and other opioids. "Prescriptions and sales of opioids in Washington skyrocketed more than 500 percent between 1997 and 2011. In 2011, at the peak of overall sales in Washington, more than 112 million daily doses of all prescription opioids were dispensed in the state — enough for a 16-day supply for every woman, man and child in Washington," according to the AG's announcement. "In 2014 McKesson, Cardinal Health and AmerisourceBergen shipped enough opioids to Pend Orielle County to supply every single resident with dozens of pills. In 2009, McKesson alone supplied enough for dozens of pills for every resident of the county. The specific shipment numbers are currently under seal." The accused distributors are in the top 15 Fortune 500 list based on 2017 revenue. In addition to the [...]

AccessData to Host 2019 User Summit in Las Vegas, April 8-11

February 20th, 2019|Categories: Conferences, Conferences, Conferences, HB Risk Notes, HB Tort Notes|

Use promotion code ADHB10 for 10% off the $825 rate. Renowned experts in fields of forensics, cybersecurity and digital investigations headline conference for forensics and legal professionals For Immediate Release February 20, 2019 | 09:35 AM Eastern Standard Time LINDON, Utah--(BUSINESS WIRE)--AccessData Group, a leading provider of integrated digital forensics and e-discovery software, announced that it will host its 2019 User Summit from April 8-11, at the luxurious Green Valley Ranch Resort in Henderson, Nev. “We will offer five tracks — Basic Digital Forensics, Advanced Digital Forensics, Mobile Forensics, Basic Legal and Advanced Legal — that enable attendees to create a personalized conference schedule tailored to their unique professional roles and responsibilities within their organizations.” The AccessData User Summit is the premier gathering for computer and mobile device forensics, e-discovery and litigation support professionals, all assembled at one conference. Lori Tyler, VP Global Marketing, AccessData “This year’s conference features a deeper faculty of expert speakers than ever, with some of the foremost authorities on cybersecurity, digital investigations, legal workflows and mobile forensics,” said Lori Tyler, Vice President of Global Marketing at AccessData. “We will offer five tracks — Basic Digital Forensics, Advanced Digital Forensics, Mobile Forensics, Basic Legal and Advanced Legal — that enable attendees to create a personalized conference schedule tailored to their unique professional roles and [...]

Protected: Presentation Download Center for Class Action Mastery Forum | Jan. 15-17, 2019 | San Diego

January 15th, 2019|Categories: HB Tort Notes|Tags: Bristol-Myers Squibb v. Superior Court, class action conference, Class Certification Under 23(c)(4) of the Federal Rules, Determining Damages in Class Actions, Discovery Under (26)(b)(1): Proportionality, Ethics in Attorney Advertising, Impact on class actions, May Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, privacy policies on choice of law in class cases, Spokeo v. Robins|

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Two Judges Find Florida Medical Marijuana Law Unconstitutional

January 4th, 2019|Categories: HB Risk Notes, HB Tort Notes|Tags: cannabis, Florida medical marijuana, medical marijuana|

The Program is 'Absolutely Broken' -- Now What? Edited by Tom Hagy Florida Circuit Judge Karen Gievers just held that the Florida medical marijuana law is unconstitutional. Reporting on the judge's Trulieve decision for the Florida Politics news service, journalist Jim Rosica called it "a rebuke to lawmakers and the Rick Scott Administration" that was "stunning even for" Judge Gievers. "In the spirit of boxing legend Muhammad Ali, known for his pre-fight rhymes, Gievers opined that in Florida 'the medical marijuana system was broken. Now, in the Constitution, the people have spoken.'" Rosica reported that while Gov. Scott is appealing the major marijuana decisions against the state Department of Health, the transition team of Republican Governor-elect Ron DeSantis, including Lt. Gov.-elect Jeanette Nuñez, has suggested that he will not continue to defend the law in court. Rosica continued: "Gievers, who retires in April, said her decision striking down the law 'includ(ed), but (is) not limited to, replacement of the voter-selected registry plan with an arbitrary, inconsistent licensing scheme … throttling access of qualifying patients to … safe use of medical marijuana from (providers that) the Department has a clear, undisputed duty to register.' In fact, just passing the law was itself unconstitutional, Gievers suggested: 'Voters made clear in 2016 that the Legislature was to have no role in implementing access to and availability [...]

Stigma and Shame Hampered AIDS Treatment in the 80s, and Opioid Treatment Today

January 2nd, 2019|Categories: HB Risk Notes, HB Tort Notes|Tags: opioid class action, opioid crisis, opioid insurance|

By Tom Hagy I worked in the press office of the New Jersey Department of Health in the 1980s. Aside from hazardous waste, asbestos, cancer, a chemical fire or two, the annual influenza "crisis" and the occasional salmonella outbreak, AIDS was one of the most urgent, frightening and misunderstood health issues of the day. The U.S. epidemic began with one reported case in 1981, according to the Centers for Disease Control, and grew to an astounding 36.9 million people living with HIV/AIDS in 2017 as reported by the World Health Organization. The office I worked in was tasked with providing information to the public and members of the press. At the time many public health professionals believed -- as is the case with many diseases -- that education on how to prevent transmission of the HIV virus would all but eliminate its spread. All we had to do was educate the public and, most importantly, the high-risk groups. Education is a common weapon in fighting disease. It's why we wash our hands, cough into our elbows and try not to put salt on absolutely everything we put in our mouths. In the early 1980s the "problem" was that the high-risk groups were having homosexual sex and injecting drugs -- not typical themes addressed by politicians. Early on more conservative policymakers didn't want [...]

VW Emissions Case: Dealers to File Cert Motion in March 2019

December 29th, 2018|Categories: HB Tort Notes|

PFOA: Science & Litigation | 11/15/2018

October 21st, 2018|Categories: HB Tort Notes, Torts-On-Demand-CLE|Tags: environmental torts, mass torts, PFOA, toxic torts|

DATE: Nov. 15, 2018 TIME: 2 p.m. EDT; 1 p.m. CDT; 12 p.m. MDT; 11 a.m. PDT PLACE: Your computer or mobile device PRICE: $197* per dial-in site *Price is good through Oct. 31. After that it's $247. GROUPS ARE GOOD: Registering qualifies you to multiple attendees at your location. CLE: 1 credit Please send CLE questions to CLE@LitigationConferences.com speakers Michael Dourson, Ph.D., DABT, FATS, FSRA Director of Science Toxicology Excellence for Risk Assessment (TERA) Register now and get: Access for multiple colleagues at your location. Practical insights from a board-certified toxicologist. A through and informative PowerPoint presentation for later reference. Answers to your questions via live chat. CLE credit. And more! PFOA Toxicology: What's a Safe Level for the Environment? What toxic tort and environmental attorneys need to know about this ubiquitous compound. Perfluorooctanoic acid (PFOA) has been described as more toxic than methyl mercury. Yet not all organizations tasked with developing safe-dose levels agree on the best approach for PFOA, resulting in recommended levels that are more than 100-times apart. Differences in these recommended safe-dose levels result in cleanup costs that vary by billions of dollars. Background Environmental contamination with PFOA has been known for some time. In the early 2000s safe doses in drinking water were considered to be in the range of 30-to-50 parts per billion. Recent safe-dose assessments by [...]

Kenneth Jones of Tanenbaum Keale on Law Firm Tech Development Capabilities

October 16th, 2018|Categories: HB Risk Notes, HB Tort Notes|Tags: data security, law firm clouds, law firm security|

Should Law Firms Should be Able to Develop Custom Technologies? Here is #10 of Jones' Top-10 List. #10. Security. The cloud is great, and generally speaking, companies in this space operate systems in a highly professional manner. However, occasionally one encounters special business needs which call for extensive “above and beyond” levels of security. This could be times a firm is storing financial information, medical records, or other data they wish to absolutely, positively protect. In these situations — under the theory that “no one does things better than I do” —it’s nice to have the option to build super-secure systems with features such as encrypted data within database tables, and to manage the systems with a very small number of highly trusted professionals specifically known by the law firm. Read more of the article posted by Thomson Reuters. Kenneth Jones oversees various aspects of technology at Tanenbaum Keale LLP in the role of Chief Technologist. He leads efforts to support TK’s computing environment and infrastructure, one that features a strategy of professionally protecting and processing client data in the cloud with highly skilled and respected leading-edge business partners in the technology space. Ken also helps lead and support various TK programs in the areas of security, compliance, business continuity and firm administration. Learn more.

Cognitive Shortcuts: Assessing Case Value & Litigation Risk with Homer Simpson and Spock

September 11th, 2018|Categories: HB Tort Notes|Tags: jeff trueman, lead paint, litigation settlements, mass torts, Mediation, toxic torts|

By Jeff Trueman, Esq. Mediator The central question on the minds of counsel, their clients, and insurance professionals in civil litigation is, of course, “What’s the case worth?” Although lead paint litigation may be going through some changes, it remains a mature tort where enough historical settlement and verdict data exist for counsel to argue why a particular case should or should not fit within a certain settlement range. In the midst of these discussions, the human brain plays tricks on us. For example, litigators sometimes assume that their trial experience can determine how jurors will negotiate with one another and resolve factual discrepancies after closing arguments. This assumption is a “heuristic” – a cognitive shortcut called attributional error or illusion of control. Underneath the games of litigation “chicken” that are the hallmark of settlement negotiation, heuristics lead to erroneous valuations and assessments of risk. Although more than one hundred heuristics exist, approximately 15-20 occur commonly in the context of settlement negotiations. It is easy for potential clients to employ a heuristic similar to the illusion of control by imagining a connection between something they desire, such as a favorable case outcome, and the past successes of their prospective lawyer. Representative and confirmation biases influence how we connect “model” to “outcome.” When differences over case value intensify, litigators return to threats of [...]