Vested Interest - Tort Briefs - May 2005 Issue

2nd Circuit Allows Recovery of Expert Fees

The 2nd Circuit Court has ruled that prevailing plaintiffs may recover the costs of expert fees in actions brought under the Individuals with Disabilities Education Act. In a case of first impression for the circuit, the panel said expert fees fall under the category of "costs" that can be awarded to successful plaintiffs under the act. "Expert testimony is often critical in IDEA cases," the court noted, and parents have the right to bring "individuals with special knowledge" to IDEA proceedings. (ATLA Law News Digest – April 7, 2005)

Electronic Databases to Pay Freelancers

A federal judge has granted preliminary approval of an $18 million settlement in a class action suit on behalf of thousands of freelance writers who sold literary works to newspapers and magazines and whose works later appeared in electronic databases without their consent. The settlement is believed to be the largest copyright class action settlement in history. (ATLA Law News Digest – April 7, 2005)

School District Denied Immunity in Gun Case

A federal judge has held that a school district is not entitled to 11th Amendment immunity in a case where a student brought First Amendment and equal protection claims after being suspended for off-campus misconduct involving handguns. The judge observed that the 2nd Circuit has sent seemingly conflicting messages on whether a school district is entitled to immunity and that there is little case law on disciplining a student for "a combination of on-campus speech and off-campus action." (ATLA Law News Digest – April 7, 2005)

Illinois Supreme Court Affirms Plaintiff Verdict in Open and Obvious Case

The Illinois Supreme Court has affirmed an appellate court reversal of the trial court’s finding that the jury’s positive response to a special interrogatory on an issue of open and obvious danger negated jury’s general verdict in favor of the plaintiff. While the jury answered yes to a special interrogatory that the risk in this case was open and obvious, they returned a verdict for the plaintiff. The appeals court found that an affirmative answer to the question of whether a danger is open and obvious in a negligence action does not necessarily resolve the ultimate issue without consideration of how the doctrine compares to other matters in the case. The Supreme Court concluded that the risk-utility test does not apply to negligence cases such as this one, and that the special interrogatory should not have been given. (Chicago Daily Law Bulletin – April 13, 2005)

Judge Certifies Nationwide Class of Baycol Third-Party Payors

A Philadelphia judge has a certified a nationwide class of all third-party payors that had to refund beneficiaries of insureds for purchases of the cholesterol reducer Baycol, which Pittsburgh-based Bayer Corp. voluntarily removed from the market in 2001. Named as class representatives were the health funds from three local unions. Class counsel said they believe there are at least 10,000 third-party payors across the country who could eventually become members of the class, and they expect the class to also include insurers and employer benefits plans, in addition to union local health funds. (ATLA Law News Digest – April 14, 2005)

6th Circuit Rejects Fraud Case Against Pacemaker Company

The 6th U.S. Circuit Court of Appeals rejected a claim by lawyers who argued that the federal Medicare program was defrauded by Meditronic, a company that made defective wires for heart pacemakers. The court found that it lacked jurisdiction in the case because claims against Meditronic had been previously disclosed publicly. The lawyers filed the case under the False Claims Act, which allows private citizens to sue on behalf of the government if they believe it has been defrauded. (ATLA Law News Digest – April 14, 2005)

Supreme Court Says Farmers May Sue in State Courts

The U.S. Supreme Court ruled that farmers whose crops are damaged by federally approved pesticides or herbicides may pursue claims against the manufacturers in state court. The 7-to-2 decision was one of the court’s most significant rulings on the pre-emptive effect on federal statutes. The majority rejected the Bush administration’s view that lawsuits claiming manufacturers negligently designed, tested or manufactured their products are pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act, the federal law that governs the registration and labeling of these products. (ATLA Law News Digest – April 29, 2005)

Forum Shopping Alleged in Chapter 11

Florida food retailer Winn-Dixie’s bankruptcy filing in New York has rekindled allegations that a forum-shopping war between the states includes bankruptcy judges engaging in unseemly competition for cases. It has become so common for big corporations to file bankruptcy reorganization cases in either Delaware or New York, no matter where their headquarters are, that many consider theses states de facto victors in wooing big cases. (ATLA Law News Digest – April 29, 2005)

High Court Declines to Hear Case of POWs

The U.S. Supreme Court declined to consider whether U.S. POWs who say they were tortured during the 1991 Gulf War should collect a $959 million judgment from Iraq. The Bush administration argued that the money is needed to rebuild Iraq and that the president might seek compensation for the POWs once the Iraqi regime is established. But the National League of POW/MIA Families said the decision sends a message that while U.S. military personnel protect their country, "their country will not protect them." (ATLA Law News Digest – April 29, 2005)

Vioxx: Intervention by Merck Officials

In 2000, amid rising concerns that its painkiller Vioxx posed heart risks, Merck overruled one of its own scientists after he suggested that a patient in a clinical trial had probably died of a heart attack. In an email exchange about Vioxx, the company’s most important new drug at the time, a senior Merck scientist repeatedly urged the researcher to change his views about the death "so that we don’t raise concerns." In later reports to the FDA and in a paper published in 2003, Merck listed the cause of death as "unknown" for the patient, a 73-year-old woman. In one email by Merck’s top scientist, the doctor said the drug trial that included the woman’s death had "put us in a terrible situation." (ATLA Law News Digest – April 29, 2005)