Thursday, January 31, 2013

9/11 Fund Starts Making Payment to Victims

Workers' Compensation: 9/11 Fund Starts Making Payment to Victims:
by Jon Gelman
 "The Zadroga 9/11 Victims Claim Fund has started to make payments to victims of the World Trade Center attack. First Responders andthose who lived or worked in the immediate geographical site near "ground zero" may be entitled to the payment of benefits for illness and injuries that they suffer as a result of the terrorist attack.
Those eligible include, individuals present at  a 9/11 crash site at the time of or in the immediate aftermath, who suffer physical harm as a result of the crashes or debris removal. Also the personal representatives of individuals who were present at a 9/11 crash site, who died as a result of the crashes or debris removal, are eligible to file claims."

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Most Bohai Bay oil spill claims settled, Conoco Phillips reports

ConocoPhillips Company’s description of the Administrative Process for Requesting Compensation under China’s Ministry of Agriculture’s Settlement Fund

Most oil pollution damage claims by aquaculturist and fishermen families from the provinces of Liaoning (78%) and Hebei (95%)  have been settled, Conoco Phillips reports.  In an action brought in Texas by fishermen from Shandong  province whose claims were not recognized, Conoco has filed a "description of the administrative process for requesting compensation" under its settlement with China's Ministry of Agriculture for the June 2010 oil spills at its Bohai Bay Peng Lai oil fields in China's north.
The settlement fund - established by direct negotiation with the national government, is administered at the county level.  Although the Tianjin maritime court has accepted fishermen's lawsuits, the description filed in the U.S. District Court in Houston by COPC mentions no role for the courts in the distribution of the negotiated fund. - GWC

OTHERWISE: Washington & Lee is the Best Legal Education Story of 2013 | William Henderson - JDSupra

OTHERWISE: Washington & Lee is the Best Legal Education Story of 2013 | William Henderson - JDSupra:

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Monday, January 28, 2013

ALI responds to criticism by Center for Tobacco Control

OTHERWISE: ALI responds to criticism by Center for Tobacco Control: "ALI President Roberta Ramo and Director Lance Liebman have posted The ALI’s Response to the Center for Tobacco Control Research & Education, 98 Iowa L. Rev. Bull 1 (2013).
 Laposata, et al. called for the ALI to adopt a policy of interest disclosure similar to that of  the National Academies: "Until the ALI adopts and enforces meaningful, effective, and transparent  conflict of interest policies, their work should not be taken without question as unbiased authoritative documents worthy of reliance by our courts and legislatures"."

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Sunday, January 27, 2013

DePuy Hid Data About Failed Hip Implant, Documents Show -

image by Childers, Schlueter & Smith, LLC

According to plaintiff's opening argument in the first bellwether trial in Los Angeles Superior Court DePuy Hid Data About Failed Hip Implant, Documents Show -
by Barry Meier
"Johnson & Johnson executives knew years before they recalled a troubled artificial hip in 2010 that it had a critical design flaw, but the company concealed that information from physicians and patients, according to internal documents disclosed on Friday during a trial related to the device’s failure."

for further information see the DePuy page on this blog.

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Wednesday, January 23, 2013

Linda Riss dies at 75

Linda Riss Pugach dies at 75 - NY Times
The plaintiff in Riss v. City of New York (1967) has died.  Generations of law students have learned that you can't sue the police for failure to protect you from a stalker who has threatened you with violence.  The bizarre end of this tragedy is that she married the man who had blinded her. - GWC

Linda Riss, later Pugach, with Burt, whom she married after he hired thugs who blinded her with lye 
"Linda Riss Pugach, whose blinding by her lover, Burton N. Pugach, in 1959 became a news media sensation, and whose marriage to Mr. Pugach in 1974 became an equally sensational sequel, died at Forest Hills Hospital in Queens on Tuesday at 75.
The cause was heart failure, said Mr. Pugach, her husband of more than 38 years and her only immediate survivor...."
In 1974, The New York Times called the attack on Miss Riss “one of the most celebrated crimes of passion in New York history.” In the years since, the strange romance of Mr. and Mrs. Pugach (pronounced POOH-gash) has seldom been far from public view.
A book about the couple, “A Very Different Love Story,” by Berry Stainback, was published in 1976. More recently, the Pugaches were the subject of a widely seen documentary, “Crazy Love.”

Johnson & Johnson Aware of 40% Failure in Hip Implant -

Maker Aware of 40% Failure in Hip Implant - by Barry Meier
 "An internal analysis conducted by Johnson & Johnson in 2011 not long after it recalled a troubled hip implant estimated that the all-metal device would fail within five years in nearly 40 percent of patients who received it, newly disclosed court records show."
Childress Schlueter & Smith - a plaintiffs law firm - discusses the DePuy ASR hip implant recall HERE.

Morgan Stanley sold "nuclear holocaust" housing bonds in 2007

"On March 16, 2007, Morgan Stanley employees working on one of the toxic assets that helped blow up the world economy discussed what to name it. Among the team members’ suggestions: “Subprime Meltdown,” “Hitman,” “Nuclear Holocaust” and “Mike Tyson’s Punchout,” as well a simple yet direct reference to a bag of excrement.
Ha ha. Those hilarious investment bankers.
Then they gave it its real name and sold it to a Chinese bank.
We are never going to have a full understanding of what bad behavior bankers conducted in the years leading up to the financial crisis. The Justice Department and the Securities and Exchange Commission have failed to hold big wrongdoers to account.
The results are explosive. Hundreds of pages of internal Morgan Stanley documents, released publicly last week, shed much new light on what bankers knew at the height of the housing bubble and what they did with that secret knowledge.
The lawsuit concerns a $500 million collateralized debt obligation called Stack 2006-1, created in the first half of 2006. Collections of mortgage-backed securities, C.D.O.’s were at the heart of the financial crisis.
But the documents suggest a pattern of behavior larger than this one deal: people across the bank understood that the American housing market was in trouble. They took advantage of that knowledge to create and then bet against securities and then also to unload garbage investments on unsuspecting buyers.
Morgan Stanley doesn’t see the narrative as the plaintiffs do. The firm is fighting the lawsuit, contending that the buyers were sophisticated clients and could have known what was going on in the subprime market. The C.D.O. documents disclosed, albeit obliquely, that Morgan Stanley might bet against the securities, a strategy known as shorting. The firm did not pick the assets going into the deal (though it was able to veto any assets). And any shorting of the deal was part of a larger array of trades, both long and short. Indeed, Morgan Stanley owned a big piece of Stack, in addition to its short bet...."

Tuesday, January 22, 2013

OTHERWISE: Obama's Second Inaugural: Liberty and Security

OTHERWISE: Obama's Second Inaugural: Liberty and Security:
President Obama's overarching themes in his second inaugural were expanding liberty, and reconciling liberty and securityJames Fallows, a former presidential speechwriter, highlights two powerful allusions in President Obama's Second Inaugural Address - the "lash and sword" and "Seneca, Selma, and Stonewall" which develop the theme of expanding liberty. 

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Thursday, January 17, 2013

FDA - Metallic Hip Implants Require Premarket Approval

93,000 of these devices have been recalled, reports plaintiffs lawyer Mark Cornwall in this advertisement.
One of the most grievous loopholes in the system for regulating medical devices is the minimal pre-market review requirements for devices that are "substantial equivalents" of devices available before the 1976 Medical Device Amendments.  Dramatically new devices - such as metal on metal hip implants escaped significant scrutiny.  That is about to change: such devices will now be subjected to rigorous premarket review according to a new proposed rule.  In a new safety alert the FDA has encouraged practitioners to report adverse events and has ordered device manufacturers to conduct post-market surveillance studies.

The move is in response to thousands of patient reports of complications from metal on metal implants, the FDA reports:
 In metal-on-metal hip implants, the metal ball and the metal cup slide against each other during walking or running. Metal can be released from other parts of the implant where two implant components connect.  Metal release will cause some tiny metal particles to wear off of the device around the implant, which may cause damage to bone and/or soft tissue surrounding the implant and joint. Soft tissue damage may lead to pain, implant loosening, device failure and the need for revision surgery Some of the metal ions released will enter the bloodstream and travel to other parts of the body, where they may cause symptoms or illnesses elsewhere in the body. 
Postmarket Surveillance studies are part of what I have called the duty of product stewardship, and the Institute of Medicine in its 2006 report The Future of Drug Safety called a "life-cycle approach" to drug safety.  The heart of the approach is that a product manufacturer has an affirmative duty to monitor how its product actually performs after marketing permission is granted by the FDA. 

Tuesday, January 15, 2013

NFL, Like M.D.'s, Was Slow to Recognize Concussion Risk =Orentlicher & David

CDC/NFL Concussion Poster for Players
In 1910 the NFL required this poster to be
displayed in NFL locker rooms, the CDC reports
Concussion and Football: Failures to Respond by the NFL and the Medical Profession8 (1) FIU Law Review (Forthcoming)

Brain injury in the NFL has gained the attention of public health authorities who have documented that NFL players die of neurodegenerative disorders at a rate triple the national average.  The NFL finds itself and the game on the defensive.  
In a new paper David Orentlicher (Indiana Law) and William David (Harvard Medical) argue that the NFL's slow recognition of the seriousness of concussion injuries reflected the slow recognition of the problem by health professionals - neurologists and others.  Many viewed concussion as a temporary injury, others suspected frequent malingering, and almost no one saw the "punch drunk fighter" as a phenomenon that signaled danger for football players.
Although the authors are not entirely uncritical of the NFL their argument, if accepted, would undercut the plaintiffs'assertion in the NFL Concussion Litigation master complaint that the NFL fraudulently concealed the dangers of professional football to its players.  They write 
While the NFL may have responded slowly to problems from concussion, the extent to which its response was unreasonable is unclear. If many medical experts did not worry about concussions, it is difficult to fault the NFL for not worrying either. Moreover, the NFL did not ignore concerns about head injuries. It imposed helmet requirements and banned types of blocking and tackling that were particularly dangerous. It also convened an expert committee to study the issue. Still, one can question the NFL’s failure to adopt concussion guidelines in the late 1990’s when they were being issued by medical experts.
If the fraudulent concealment claim is defeated the players' tort remedy will be barred and they will be limited to workers compensation which sharply limits compensation, and presents a welter of  jurisdictional problems since players work in many states in the course of a season and may suffer injury in any one or even all of them. - GWC

Is Teal Blue? TTAB refuses registration for catheters

The color teal cannot be trademarked for a medical catheter because it is likely to confuse even sophisticated users says the Trademark Trial and Appeal Board in In Re Cook Medical Technologies.  John Welch has commentary on the refusal to register the color at the TTAB Blog

Saturday, January 12, 2013

Torts Blog: FDA addresses issues related to sleeping pills

Torts Blog: FDA addresses issues related to sleeping pills:

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Conoco Phillips looks to resume drilling in north China's Bohai Bay

BEIJINGJan. 10 (Xinhua) -- China's State Oceanic Administration (SOAon Thursdayset out how it will mete out strict environmental protection measures in Bohai Seaareas as part of the country's attempt to curb ocean pollution.

These measuresincluding strictly limiting commercial exploitation in the sea andcarrying out oceanic restoration projectswill help accelerate the recovery of BohaiBaywhich was seriously dirtied by oil spilled from a subsidiary of the United States-based oil company ConocoPhillips in 2011, according to the SOA.

"Environmental pressure from the ocean pollution hasn't been relieved muchwhich inthe long run will shake the foundation for stable economic and social development incoastal regions," said the SOA head Liu Cigui.

Liu said the SOA will work out a sound oceanic ecological appraisal systemnationwide and actively promote compensation for damage to oceanic zoology.

The administration will also slash the amount of pollutants allowed to enter the ocean,and improve the environmental assessment system regarding oceanic engineeringprojects.

Legal Ethics Forum: Heather Baxter, "Too Many Clients, Too Little Time: How States are Forcing Public Defenders to Violate Their Ethical Obligations"

Heather Baxter

I have been banging this drum slowly for a while now.  I keep hoping that something will give in this the fiftieth anniversary year of Gideon v. Wainwright.  The public defense system of Pennsylvania is a gross failure, and New York's is an admitted failure.  Now Nova Southeastern law prof Heather Baxter surveys the broad scope of the problem and its impact on the ability of public defenders to meet their ethical obligation to provide competent and effective defense. Unfortunately it's like the weather: everyone talks about it, no one does anything about it. - GWC
Legal Ethics Forum: Heather Baxter, "Too Many Clients, Too Little Time: How States are Forcing Public Defenders to Violate Their Ethical Obligations":
"Budget cuts have had a devastating effect on public defenders and their ability to effectively represent indigent clients, mostly in the form of increasing caseloads. Much has been written about the effect these excessive caseloads have had on indigent defendants’ right to counsel. This article, instead, focuses on how excessive caseloads are placing public defenders in ethical dilemmas. Public defenders are bound by the Model Rules of Professional Conduct, but these high caseloads are making it increasingly difficult for them to meet these required ethical standards. Specifically, it is more challenging for an attorney to represent indigent clients diligently and competently when dealing with caseload numbers well beyond the recommended levels. The author discusses why the solutions being offered by the American Bar Association‘s Formal Opinion 06-441 are not tenable and concludes that true reform in indigent defense is the only way to alleviate the excessive caseloads."
still unheard

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Ninth Circuit Allows Failure to Warn Medical Device Case to Proceed

Sheila Scheuerman at TortsProf Blog reports: "Muddling the preemption waters, the Ninth Circuit has ruled that a plaintiff can bring a state law failure to warn claim against a medical device manufacturer.  The court found the claim was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act."
The Ninth  Circuit, in a unanimous en banc decision Stengel v. Medtronic, reverses the panel and trial judge below who had dismissed the action as preempted by the 1976 Medical Device Amendments to the Food Drug & Cosmetic Act.  In an amended complaint Richard Stengel alleged that "Medtronic had violated a state-law duty of care by failing to report known risks associated with use of its medical device to the Food and Drug Administration" The decision allows Stengel to proceed with his 
"proposed new claim under Arizona law, insofar as the state-law duty parallels a federal-law duty under the MDA, is not preempted. Arizona state law has long been concerned with the protection of consumers from harm caused by manufacturers’ unreasonable behavior. Plaintiffs’ claim is brought under settled Arizona law that protects the safety and health of Arizona citizens by imposing a general duty of reasonable care on product manufacturers. “‘The whole  modern  law  of  negligence,  with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another.’” 
The Circuit Court was constrained by the deplorable decision of the United States Supreme Court in Riegel v. Medtronic which barred design defect claims against manufacturers of Class III medical devices.  Thus victims of unreasonably dangerous products like Medtronic's implanted intrathecal spinal pain pump are limited to manufacturing defects and - now thanks to the 9th Circuit - at least one type of state law claim for failure to warn the FDA of product dangers.  As the concurring opinion points out Stengel faces a formidable obstacle in proving causal relationship.  He must show that had Medtronic submitted information to the FDA that his doctors would not have inserted the Medtronic pain pump which left Stengel paraplegic.  The decision does not recognize a duty to warn the patient directly.

The 9th Circuit opinion is consistent with what I have called the duty of product stewardship, and the Institute of Medicine in its 2006 report The Future of Drug Safety called a "life-cycle approach" to drug safety.  The heart of the approach is that a product manufacturer has an affirmative duty to monitor how its product actually performs after marketing permission is granted by the FDA.

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Friday, January 11, 2013

River Pollution Compensation conundrum |

Chemical leak into river puts focus on plant
Hazmat workers remove contaminated river ice
Chemical leak into river puts focus on plantThe recent chemical spill into the Zuozhang River, Shanxi Province (northwest) has focused attention on environmental pollution, China Daily reports. - GWC
Compensation conundrum |Cover Story |

Some Changzhi residents told China Daily that contaminated water from the aniline spill has flowed into their fallowfarmlandand they expressed concerns that the toxic chemical would affect the spring harvestIf that proves to be thecasethey will ask for compensation from the plant or the local government.
Howeverit's difficult for residents to defend their rights as individualsaccording to Tian Fengchanga legal adviser atthe All-China Environment FederationA lack of legal knowledge prevents many people from asserting their rights andmost are unable to afford the legal fees.
"They either ask for a huge amount in compensation that exceeds the prescribed limitor don't know their rights," saidTian.
People are often vulnerable when they are up against big business or the governmentsaid Tianwho has paid closeattention to environment compensation claims since 2005. Instead they usually turn to specialist organizations such asAll-China Environment Federation for help.
"These groups are professional and find it easier to attract the government's attention," he said. "Individuals are highlyunlikely to get any response."
He advised the Changzhi residents to collect evidence for use in investigations by taking photos and water samples.Howeverthe compensation procedure could take yearssaid Tian.
Hu Sanhuhead of the Changzhi Government Information Officesaid no schedule has yet been drawn up forcompensation claimsbut pledged that experts from the Ministry of Environmental Protection will test the contaminated soil.

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Tuesday, January 8, 2013

Committee on Sports-Related Concussions in Youth - Institute of Medicine

The Institute of Medicine - a research arm of the National Academy of Sciences - has announced a new study: Committee on Sports-Related Concussions in Youth - Institute of Medicine: "An IOM committee will conduct a study on sports-related concussions in youth, from elementary school through young adulthood, including military personnel and their dependents. The committee will review the available literature on concussions, in the context of developmental neurobiology, in terms of their causes, relationships to hits to the head or body during sports, and the effectiveness of protective devices and equipment. The committee will also review concussion risk factors, screening and diagnosis, treatment and management, and long-term consequences.
Dates and agendas for future open sessions of the committee will be posted on the IOM project's web page. You can sign up for the project list serv.  The Committee on Sports-Related Concussions in Youth's first meeting
was January 7, 2013.
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Friday, January 4, 2013

USDOJ: Transocean Agrees to Plead Guilty to Environmental Crime and Enter Civil Settlement to Resolve U.S. Clean Water Act Penalty Claims from Deepwater Horizon Incident

USDOJ: Transocean Agrees to Plead Guilty to Environmental Crime and Enter Civil Settlement to Resolve U.S. Clean Water Act Penalty Claims from Deepwater Horizon Incident: "WASHINGTON – Transocean Deepwater Inc. has agreed to plead guilty to violating the Clean Water Act (CWA) and to pay a total of $1.4 billion in civil and criminal fines and penalties, for its conduct in relation to the Deepwater Horizon disaster, the Department of Justice announced today.   The criminal information and a proposed partial civil consent decree to resolve the U.S. government’s civil penalty claims against Transocean Deepwater Inc. and related entities were filed today in U.S. District Court in the Eastern District of Louisiana."

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Wednesday, January 2, 2013

Social Withdrawal and Violence — Newtown, Connecticut — New England Journal of Medicine

Social Withdrawal and Violence — Newtown, Connecticut — NEJM: by John T. Walkup, M.D., and David H. Rubin, M.D
"In the aftermath of the great tragedy in Newtown, Connecticut, the mental health community is responding to our own and others' desperation to understand why this event occurred and is advocating for strategies that might prevent similar events in the future. Discussion has focused on whether Adam Lanza was mentally ill, the risk of violence among the mentally ill, access to high-quality mental health care, gun control, and the relationship between the media and violence. An important dimension that has been less discussed is the question of social withdrawal and isolation, within and beyond the confines of mental illness. For the withdrawn and isolated and the angry and alienated, there are deep-seated barriers to care, and there may exist a small subgroup that is uniquely vulnerable to the seductive power of violence in our culture."...
The tragedy in Newtown has revived many Americans' passion for gun control and has drawn attention to the media's influence on violent behavior. What is missing from most related discussions is a focus on the seductive, powerful subculture that celebrates and advocates violent and antisocial behavior. Most people are not interested in and do not engage with this subculture, and most who do so are not seduced into action by antisocial themes and violence in films, video games, written materials, or interest groups. However, a very small minority of angry and alienated mentally ill persons may gain a sense of belonging and support from this subculture and may be particularly vulnerable to being seduced into action.
As we launch into relevant policy debates, mental health professionals are best tasked with addressing the problems in our system that make it difficult for individuals and their loved ones to obtain effective, high-quality mental health care early in life. Since most psychiatric disorders begin in childhood or adolescence, more research is needed on the progression of mental health problems from childhood through adolescence and into adulthood. More specifically, research is needed to elucidate the multiple trajectories of the early withdrawn and isolated behavior that is so common in the reported histories of people who perform violent acts. Finally, discussions of gun control and violence in the media need to delve deeper and illuminate the dark subculture of alienation and antisocial violence that may engage and seduce rare individuals into performing extreme acts of violence like the one in Newtown."

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OTHERWISE: Preventing Gun Deaths in Children — New England Journal of Medicine

OTHERWISE: Preventing Gun Deaths in Children — New England Journal of Medicine:
More on the appalling barriers to developing the public health information needed to develop effective strategies to prevent gun deaths and injuries. = GWC

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