Edwards Angell Palmer & Dodge's Insurance and Reinsurance Department recently published its latest Newsletter, Insurance & Reinsurance Review - September 2010, which contains nine articles about various topics in the insurance and reinsurance industry. read more
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In July 2009 in New Castle County in the State of Delaware, three separate plaintiffs filed civil suits against E. I. Du Pont De Nemours and Company, Inc. (“DuPont”) alleging that their work at a DuPont textile plant in Mercedes, Argentina from 1961 to 2002 caused them to be exposed to and inhale asbestos fibers. read more
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A California jury recently returned a verdict in favor of Allergan, Inc., in a trial involving claims that Allergan’s promotion of an off-label use of its drug Botox caused the death of a pediatric patient suffering from cerebral palsy. read more
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The 11th Circuit Court of Appeals recently relied upon the learned intermediary doctrine in affirming summary judgment in favor of Smithkline Beecham Corp. (“SBC”) in a lawsuit claiming that the antidepressant Paxil caused the decedent to commit suicide. read more
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The Insurance and Reinsurance Department of Edwards Angell Palmer & Dodge is holding a 60 minute complimentary webinar entitled "Emerging Trends in Asbestos Litigation: US/UK/European Issues and Perspectives" on Tuesday, May 25, 20 at 12:00 p.m. EST. read more
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The Unites States Department of Justice is expected to announce shortly a settlement with AstraZeneca plc over allegations that the drug manufacturer improperly promoted off-label uses of its antipsychotic drug, Seroquel. Federal and state authorities have been investigating allegations that AstraZeneca promoted the use of Seroquel for purposes not approved by the Food and Drug Administration. read more
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A federal jury in Boston recently returned a verdict against Pfizer Inc. in connection with claims that Pfizer unlawfully promoted off-label uses of its anti-epilepsy drug Neurontin. The plaintiffs, a group of hospitals and HMOs, claimed that Pfizer had fooled them into believing that Neurontin was effective in the treatment of bipolar disorder, neuropathic pain and other conditions. read more
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On November 27, 2009, the United States Court of Appeals for the Eighth Circuit held that failure to warn claims directed at generic pharmaceutical manufacturers are not preempted by federal law. read more
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The United States District Court for the Northern District of Georgia recently held that an insurer had a duty to defend under a CGL policy and umbrella policy against claims relating to a hotel guest’s alleged contraction of Legionnaire’s Disease from a dirty hot tub. read more
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Allergan, Inc., the maker of the drug Botox, recently filed suit against the Food & Drug Administration, alleging that certain FDA regulations unconstitutionally restrict Allergan’s truthful speech regarding off-label uses of its drug. read more
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EAPD participated in the October 22, 2009 sessions of the Chinese Drywall Insurance Conference taking place in Miami Beach, Florida. The day included a lively discussion between attorneys on all sides of this emerging issue, including attorneys representing homeowners, builders, suppliers, and insurers. Summaries of those discussions are set out below. read more
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The Insurance and Reinsurance Department of Edwards Angell Palmer & Dodge invites you to join them for "Up Against A Chinese Drywall: Recent Developments in the Ongoing Products Liability and Coverage Litigation" - a complimentary 60 minute webinar to be held Tuesday, October 27, 2009 at 12:00pm EDT / 4:00pm GMT. read more
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The Insurance and Reinsurance Department of Edwards Angell Palmer & Dodge invites you to join them for "Up Against A Chinese Drywall: Recent Developments in the Ongoing Products Liability and Coverage Litigation" - a complimentary 60 minute webinar to be held Tuesday, October 27, 2009 at 12:00pm EDT / 4:00pm GMT. read more
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Earlier this month, a New York appellate court held that claims against the manufacturer of protective devices for ears were barred by the three-year statute of limitations governing actions to recover damages for personal injury. read more
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A federal judge in New Orleans has defaulted a defendant, Taishan Gypsum Company, in a products liability class action lawsuit. The Judge held Taishan Gypsum in default because it failed to respond to a class action complaint. Taishan Gypsum allegedly is one of the largest manufacturers of Chinese drywall. read more
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Earlier this month, a California appellate court held that the government contractor immunity defense applies to a boiler manufactured to United States Navy specifications, shielding the manufacturer from a design defect claim. read more
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Legislation recently introduced in the United States Senate could help homeowners haul foreign manufacturers of allegedly defective Chinese drywall into court. The Foreign Manufacturers Legal Accountability Act of 2009, introduced by Senators Sheldon Whitehouse (D- RI), Jeff Sessions (R-AL) and Dick Durbin (D-IL), seeks to make it easier to bring foreign companies before American courts. read more
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Florida Senator Bill Nelson recently sent a letter to President Obama asking the administration to streamline federal assistance available to homeowners with allegedly tainted Chinese drywall. Nelson requested “White House mobilization and coordination of all federal resources that could help homeowners” and stressed the need for an inter-agency Drywall Task Force to coordinate efforts and a “one-stop federal Drywall Assistance Center” that could provide information and resources directly to impacted homeowners. read more
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The United States Environmental Protection Agency (EPA) recently conducted comparative testing on drywall manufactured in China and the United States. As reported here, here, and here, Chinese drywall emits fumes that allegedly smell like rotten eggs, cause health problems and corrode metal in thousands of new homes built between 2002 and 2007. Complaints have been registered nationwide but are concentrated in the Southeast, particularly in Florida.
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On July 1, 2009, pharmaceutical and medical device manufacturers of FDA-approved drugs or medical devices doing business in Massachusetts or doing business with health care practitioners (“HCPs”) licensed in Massachusetts (regardless of where benefits are provided or expenditures are made) (“Companies”) must be in compliance with the Massachusetts Code of Conduct Law. This requirement is contained in regulations issued by the Massachusetts Department of Public Health (the “DPH”) on March 11, 2009 (the “Regulations”). read more
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On June 10, 2009, the Federal Trade Commission released a detailed report entitled: “Emerging Health Care Issues: Follow-on Biologic Drug Competition.” The FTC Report is important because it provides the most current government-sector analysis of the U.S. biologics market and the FTC’s recommendations for legislation designed to allow for “follow-on” versions of such drug products. read more
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Wyeth, a pharmaceutical and health care product manufacturer, purchased 20% of its excess product liability insurance from one insurer in the 1980s. Starting in 1988, a subsidiary of Wyeth, John Wyeth & Brother, Ltd., was named as a defendant in over 11,000 product liability actions in the United Kingdom and Ireland because of its manufacture and prescription of Ativan and other drugs containing benzodiazepine. read more
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On May 20, 2009, President Barack Obama issued a memorandum addressing the limitations of federal preemption of state laws. The memorandum ordered federal departments and agencies to review regulations preempting state laws to determine whether such preemption is based on an explicit Congressional mandate or an otherwise sufficient legal basis. read more
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Edwards Angell Palmer & Dodge is delighted to announce that it will again this year host a half-day seminar which will be repeated in Bermuda, New York and Boston. read more
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United States Senators Bill Nelson (D-Fla.) and Mary Landrieu (D-La.) filed legislation last week to recall and ban the use of Chinese drywall in the United States. read more
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Historically, builders used drywall (a/k/a sheetrock, gypsum board or wallboard) that was manufactured in the United States for residential construction. However, during the construction boom years of 2002-2007, a shortage of domestic drywall forced many builders to purchase product that was manufactured in China. read more
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An Illinois federal district court recently granted an insurer’s motion for judgment on the pleadings in a declaratory judgment suit regarding coverage for claims related to bacteria. AMCO Ins. Co. v. Swagat Group, LLC, et al., No. 07-3330 (C.D.Ill. Feb. 10, 2009). read more
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As we discussed here, the United States Supreme Court last week ruled that state law claims for failure to include an adequate warning on a pharmaceutical label are not preempted by the federal Food and Drug Administration’s (“FDA”) prior approval of the product’s label. read more
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By a 6-3 vote, the United States Supreme Court yesterday found that state law claims for failure to include an adequate warning on a pharmaceutical label are not preempted by the federal Food and Drug Administration’s (“FDA”) prior approval of the product’s label. read more
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As previously reported here, the U.S. Supreme Court heard oral arguments in Wyeth v. Levine on November 3, 2008. The case involves the question of whether the Food and Drug Administration’s (“FDA”) regulation of prescription drug labeling pursuant to Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”) preempts state common law tort claims. To date, the Supreme Court has not released its decision. read more
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The United States Court of Appeals for the Third Circuit (“Third Circuit”) recently vacated the dismissal of a securities fraud class action alleging that a pharmaceutical company, Pharmacia, Inc., made materially false statements about a clinical study of a popular anti-inflammatory medication. read more
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The United States District Court for the Central District of California recently held that state law consumer fraud claims and federal fraud claims pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”) are not preempted by the federal Food, Drug and Cosmetics Act (“FDCA”) if such claims are based on specifically identifiable false or misleading representations or material omissions. read more
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The United States Court of Appeals for the Second Circuit recently reversed the dismissal of a lawsuit alleging that drug manufacturer Pfizer, Inc. violated the Federal Alien Tort Statute (“ATS”) and certain state statutes by conducting a medical experimentation on humans without their informed consent or knowledge. read more
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According to its recent Form 10-Q SEC filing, Merck’s insurance coverage will not suffice to fully cover the November 2007 settlement reached in connection with the federal Vioxx class action litigation, reported to be for an “aggregate amount of $4.85 billion” for qualifying domestic claims (a figure that does not include legal defense costs). read more
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On December 15, 2008, the United States Supreme Court held that state law fraud claims are not preempted by the federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341, (“Labeling Act”) or the Federal Trade Commission’s (“FTC”) policy on “light” cigarette advertising and sales. read more
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The United States District Court for the Northern District of California recently denied several commercial general liability insurers’ motions to dismiss, holding that the insurers may be required to defend the makers of Bluetooth Headsets against suits alleging negligent design and unfair marketing even though the suits do not allege that the plaintiffs suffered any physical injuries. read more
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Relying on the Supreme Court’s decision in Riegel, the U.S. District Court for the Northern District of Illinois recently held that the Food and Drug Administration’s (“FDA”) extensive premarket approval (“PMA”) process for Class III medical devices preempts state law causes of action for injuries allegedly caused by those devices. read more
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Last week Bayer HealthCare LLC (Bayer) agreed to pay $97.5 million plus interest to the federal government to settle allegations that Bayer paid kickbacks to diabetes supplies companies and caused such companies to submit false claims to Medicare. read more
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A California state appellate court recently ruled that a name-brand pharmaceutical manufacturer’s common-law duty of care in formulating product warnings extends to patients whose doctors foreseeably rely on such product information when prescribing a medication, even if the prescription is ultimately filled with a generic equivalent. read more
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A federal district court in Pennsylvania recently held that two insurers are not obligated to contribute to the defense and indemnification of an insured sued for selling contaminated milk. read more
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The Decision
On 21 November, Mr. Justice Burton handed down his long-awaited decision in the six test cases comprising the Employers’ Liability Policy ‘Trigger’ Litigation. read more
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Since January 2008, Merck and Co., Inc. (“Merck”) and its joint venture partner, Schering-Plough, Corp. (“Schering-Plough”) have been under investigation for their marketing of the cholesterol lowering drug Vytorin. Last week, Merck announced in its third quarter Form 10-Q that it received notice of further investigations and additional lawsuits, including an investigation by the U.S. Department of Justice (“DOJ”). read more
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On November 5, 2008, a jury in the Suffolk County Superior Court in Massachusetts reportedly awarded a $9.4 million verdict to the family of a woman who had received experimental cancer treatment at the Dana-Farber Cancer Institute. After interest, the award to the family of the decedent reportedly totaled approximately $13.5 million. read more
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On November 3, 2008, the U.S. Supreme Court heard oral arguments in Wyeth v. Levine. This case involves the question whether the Food and Drug Administration’s (“FDA”) regulation of prescription drug labeling pursuant to Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”) preempts state common law tort claims. read more
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The Consumer Product Safety Improvement Act of 2008 was signed into law August 14, 2008. It greatly expands the powers of the Consumer Product Safety Commission (CPSC) to protect the public from harmful products. read more
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On October 23, 2008, Pfizer announced that it had reached a $60 million settlement with regulators from 33 states and the District of Columbia regarding allegations that it promoted painkillers Celebrex and Bextra for "off-label" uses not approved by the United States Food & Drug Administration. read more
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On 26 June 2008 we reported that the Scottish Parliament had proposed a bill to reinstate compensation for individuals who have pleural plaques, thereby reversing in Scotland the effect of the House of Lord's decision in Johnston v NEI International Combustion. The Justice Committee of the Scottish Parliament have now issued their report regarding the Bill. read more
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As previously discussed here, the Tennessee Supreme Court heard oral arguments in January, 2008, in a case against an employer brought by its employee's daughter concerning her secondhand exposure to asbestos. Plaintiff Amanda Satterfield succumbed to mesothelioma at the age of 25. read more
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As we previously reported here, the Rhode Island Supreme Court recently ruled that the public nuisance suit filed by the State’s Attorney General against various former lead paint manufacturers, resulting in a jury verdict against the manufacturers, should have been dismissed by the trial justice. read more
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Last month, Ohio residents filed a class action complaint against five of the largest baby bottle and “sippy cup” makers: Avent, Dr. Brown’s, Evenflo, Gerber, and Playtex. The lawsuit alleges that the bottle makers were aware of the dangers of Bisphenol-A (commonly referred to as “BPA”) but misrepresented, both intentionally and negligently, their products’ safety. BPA, a component of clear polycarbonate, is commonly used in baby bottles, pacifiers and other baby and adult products. read more
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On July 1, 2008, the Rhode Island Supreme Court ruled that the public nuisance suit filed by the state’s attorney general against various former lead pigment manufacturers, that resulted in a jury verdict against the manufacturers, should have been dismissed by the trial justice. read more
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A Florida appellate court recently held that the retroactivity limitation for asbestos lawsuits under the state’s 2005 Asbestos and Silica Compensation Act rendered the entire Act unconstitutional. read more
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In our continuing coverage of emerging product liability issues related to carbon nanotubes, which was first reported here, we focus on the U.S. government's call for stricter monitoring of health risks arising from the production and use of this new technology.
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The Minnesota Supreme Court recently affirmed the transfer of an insurance coverage action to a group of Minnesota judges specially assigned to hear asbestos cases. In re Continental Cas. Co. v. 3M Co., Docket No. A07-784 (Minn., May 29, 2008). read more
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If recent research is correct, we could all be at risk of developing mesothelioma in the future, and this time asbestos will not be to blame. A new study conducted by a join team of UK and US scientists raises concern that certain carbon nanotubes may have carcinogenic potential. A paper published in Nature Nanotechnology on May 20, 2008, describes asbestos-like consequences of inhaling long, multi-walled carbon nanotubes (MWCNTs). read more
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A secondhand exposure lawsuit in New Jersey state court resulted in a February 2008 jury award of $30.3 million to the family of Mark Buttitta, who died from mesothelioma. read more
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The United States District Court for the Southern District of Illinois recently adopted a restrictive view of the government contractor immunity defense when it remanded an asbestos-related lawsuit to Illinois state court for lack of federal subject-matter jurisdiction. read more
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The Tennessee Supreme Court is now considering whether to dismiss a case against an employer brought by its employee's daughter concerning her alleged secondhand exposure to asbestos. Plaintiff Amanda Satterfield succumbed to mesothelioma at the age of 25. read more
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The case of John Reilly v National Insurance & Guarantee Corporation Limited [2008] EWHC 722 (Comm) considered whether the failure of a fire extinguishing system was covered under the insured's public and product liability policy. read more
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The United States Senate recently passed S. 2663, the Consumer Products Safety Commission Reform Act (“CPSC Reform Act”), which aims to provide increased protection for children’s products, improved screening of noncompliant consumer products and more effective consumer product recall programs. read more
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Jeanne Kohler (New York) and Antony Woodhouse (London) of Edwards Angell Palmer & Dodge are attending the Brokers and Reinsurance Markets Association Committee Rendezvous in Naples, Florida to deliver presentations on US and UK legal developments, respectively. read more
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Last week, the Supreme Court upheld a Second Circuit decision finding that the Food and Drug Administration’s extensive pre-market approval process for Class III medical devices preempts state law causes of action for injuries allegedly caused by those devices. read more
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In the case of Kylie Palmer v Estate of Kevin Palmer (deceased) and others [2008] EWCA Civ 46, the Court of Appeal has refused to overturn a decision forcing Royal Sun Alliance (RSA) to pay the opposing parties' costs personally. The claim arose after a six year old girl was severely injured in an automobile accident. read more
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On December 27, 2007, the Ohio Supreme Court voted 5 to 2 to uphold the constitutionality of the state’s statutory cap on pain and suffering damages in personal injury lawsuits. read more
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A Pennsylvania trial court recently overturned a $3 million jury verdict in Philadelphia's first hormone replacement therapy trial. read more
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On Tuesday, December 4, the U.S. Supreme Court heard oral arguments in Riegel v. Medtronic, Inc. The case is an appeal of the Second Circuit’s decision finding that the Food and Drug Administration’s extensive pre-market approval process for Class III medical devices pre-empts state law causes of action for injuries allegedly caused by those devices. The Circuit Courts are currently split on the question. read more
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An Illinois judge recently struck down the two-year-old state law that capped medical malpractice awards, ruling that the law violates the Illinois constitution’s “separation of powers” clause by depriving judges and juries of their right to determine fair compensation. read more
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Minneapolis-based medical technology company Medtronic, Inc. was recently sued in federal court shortly after announcing a global recall of defibrillator leads. read more
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In one of the largest civil settlements in U.S. history, Merck & Co., the New Jersey-based manufacturer of the anti-inflammatory drug Vioxx, recently agreed to pay $4.85 billion to end various Vioxx-related claims in which plaintiffs suffered a heart attack, sudden cardiac death, or stroke. read more
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The Supreme Court recently granted a petition for certiorari to review a Second Circuit decision holding that the FDA approval process does not preempt certain state common law claims. read more
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In the wake of a Nevada jury’s recent $99 million punitive damages judgment against Wyeth Pharmaceuticals Inc., in L. Brocklin v. Wyeth, No. CV04-01701 (October, 15, 2007), Wyeth’s attorneys are vowing to appeal what they are calling an “aberration” in the various hormone replacement cases brought against the Madison, N.J.-based company. read more
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A Florida jury recently returned a verdict in favor of Merck & Co. in the first Vioxx case to go to trial in the state. read more
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The United States Court of Appeals for the First Circuit recently held that, where a design is beyond the common experience or knowledge of the average layperson, a defective or negligent design case cannot succeed unless the plaintiff presents evidence "as to the relevant standard of care for the design and the way(s) in which the defendant's design fell below that standard." read more
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Following a Rhode Island jury’s verdict in 2006 that three manufacturers of lead paint created a public nuisance when they manufactured and sold the paint, the state’s Attorney General, Patrick C. Lynch, has filed a plan to abate lead in houses and buildings in Rhode Island. read more
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Christopher Christie, U.S. Attorney for the District of New Jersey, yesterday announced a settlement with four major hip and knee replacement manufacturers that allows the companies to avoid criminal prosecution and civil suits arising from alleged kickback relationships with orthopedic surgeons. read more
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As previously reported here, the Supreme Court of Appeals of West Virginia has specifically declined to adopt the learned intermediary doctrine. Johnson & Johnson Corp. v. Karl, No. 33211 (W.Va. June 27, 2007). The Court reasoned that the healthcare industry has changed and that pharmaceutical manufacturers “are pushing their products onto the public like never before.” read more
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A widely used over-the-counter laxative product is one of the latest targets in nationwide medical product liability litigation. According to complaints filed in over 50 lawsuits in at least 20 jurisdictions, C.B. Fleet Company’s Phospho-soda product, used commonly to prepare patients for colonoscopies and surgical procedures, has allegedly caused kidney failure and even death in some cases. read more
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A study recently published in the Archives of Internal Medicine reports that serious adverse drug events reported to the FDA more than doubled between 1998 and 2005. As defined by the FDA, serious adverse drug events involve drug reactions that "result in death, birth defect, disability, or hospitalization, or are otherwise life threatening or require intervention to prevent harm." read more
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The Federal District Court for the Northern District of California recently ruled that the FDA’s premarket approval (“PMA”) process for Class III devices does not preempt state law causes of action. read more
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A New York state appellate court recently reversed a denial of summary judgment on a medical device failure to warn claim. Mulhall v. Hannafin, 2007 N.Y. Slip Op. 06529 (N.Y. App. Div. Aug. 30, 2007). In doing so, the court addressed a number of interesting issues concerning the required elements of a failure to warn claim under New York law. read more
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Federal courts in three separate pharmaceutical products liability actions recently excluded plaintiffs’ expert testimony concerning causation of damages. read more
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A round-up of recent developments in medical product libility actions pending in federal courts across the U.S. read more
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In an 8-2 en banc ruling, the D.C. Court of Appeals has held that terminally ill patients do not have a constitutional due process right to access experimental drugs. read more
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Food manufacturing giant ConAgra is facing a flood of products liability lawsuits stemming from the company’s February 2007 recall of Peter Pan and Great Value peanut butter products due to salmonella contamination. read more
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The Federal District Court for the Eastern District of Louisiana recently held that state failure-to-warn claims are not preempted by the labeling requirements of the Food and Drug Administration. read more
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In a case of first impression in West Virginia, the state Supreme Court of Appeals recently specifically declined to adopt the learned intermediary doctrine. read more
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The Third Circuit Court of Appeals recently ruled that the New Jersey federal district court improperly dismissed derivative claims against certain of Merck & Co.'s officers and directors. read more
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On June 5, 2007, a New York State Court located in Manhattan ruled that various products liability claims relating to ExxonMobil Corporation's defective resin and lubricant products were multiple "occurrences" under liability insurance policies issued to ExxonMobil by Lloyd's of London. read more
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