Monday, January 3, 2011

Peppermint chocolate truffles and healthy insurance developments

Health Care Reform: VIRGINIA FEDERAL JUDGE DERAILS PART OF HEALTH CARE REFORM LAW, Commonwealth v. Sebelius, 18 No. 8 Westlaw Journal Health Law 1, Westlaw Journal Health Law December 21, 2010
A federal judge in Virginia has rejected a key part of President Obama's health care reform law, ruling it is unconstitutional to require people to purchase or obtain health insurance or face a penalty. U.S. District Judge Henry Hudson of the Eastern District of Virginia is the first jurist in the country to rule that Congress exceeded its constitutional authority in setting the minimum-coverage mandate."An individual's personal decision to purchase, or decline purchase, of health insurance.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT LOUISIANA, SUIT SAYS, Pitts v. Greenstein, 18 No. 8 Westlaw Journal Health Law 2, Westlaw Journal Health Law December 21, 2010
Several low-income Louisiana residents say that although the state has announced budgetary cuts to home services, it has no clear plan to prevent nearly 11,000 needy people from being institutionalized in nursing facilities. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, filed a class-action lawsuit, asserting the state's Department of Health and Hospitals is poised to slash its long-term personal care services program to help shore up a $1.6 million budget.

Medicare Fraud: CLINIC OWNERS GET PRISON FOR STEALING MEDICARE FUNDS, United States v. Pearson, 18 No. 8 Westlaw Journal Health Law 3, Westlaw Journal Health Law December 21, 2010
The owners of a defunct Mississippi clinic accused of cheating Medicare and Medicaid of millions of dollars have been sentenced to federal prison. U.S. District Judge Keith Starrett of the Southern District of Mississippi sentenced Theddis Marcel Pearson and Telandra Gail Jones to 10 years in prison and ordered them to pay $18 million in restitution. He also ordered them to forfeit $3.6 million in cash already seized by federal authorities.The defendants owned Statewide Physical Medicine Group.

Dental Malpractice: NEGLIGENT TOOTH EXTRACTION CAUSED WOMAN'S BLINDNESS, SUIT SAYS, Harrison v. United States, 18 No. 8 Westlaw Journal Health Law 4, Westlaw Journal Health Law December 21, 2010
A Kentucky woman says her sinus cavity was punctured during a tooth extraction at a federally operated health clinic, which caused life-threatening injuries and complete vision loss in her left eye. According to the complaint filed in the U.S. District Court for the Eastern District of Kentucky, Tammy Harrison saw Dr. Chaz Vose, a dentist at the White House Clinics-Berea, Aug. 20, 2009, to repair a cavity in her upper left molar. Vose performed an extraction that day.

Medical Device: MEDICAL DEVICE SUPPLIER ISN'T 'HEALTH CARE PROVIDER', Orthopedic Res. v. Swindell, 18 No. 8 Westlaw Journal Health Law 5, Westlaw Journal Health Law December 21, 2010
A trial court correctly determined that a medical device distributor is not a "health care provider" in the context of a Texas law requiring that plaintiffs file expert reports to accompany medical malpractice lawsuits, a state appeals court has found. A three-judge panel of the Court of Appeals in Dallas said distributor JTW Medical Products Inc. was acting outside the scope of its contract with a health care provider when its president allegedly gave a patient's husband faulty information.

Medical Malpractice: DOCTOR'S NEGLIGENCE, NOT MAN'S INTOXICATION, CAUSED INJURY, Beebe v. Hartman, 18 No. 8 Westlaw Journal Health Law 6, Westlaw Journal Health Law December 21, 2010
A Michigan appeals court has ruled that a Michigan man's intoxication at the time of a snowmobiling accident does not shield his doctor from malpractice liability allegedly associated with the treatment of his injuries. The ruling reverses the Branch County Circuit Court's order granting summary judgment to Dr. Christina Sheely and her practice pursuant to Mich. Comp. Laws 600.2955a.The law provides an absolute defense in an action over the death or injury of a person when alcohol impairment.

Nursing Homes: PATIENTS SUFFER SUB-PAR CARE AT CALIFORNIA FACILITIES, CLASS ACTION SAYS, Valentine v. Thekkek Health Servs., 18 No. 8 Westlaw Journal Health Law 7, Westlaw Journal Health Law December 21, 2010
A group of California skilled nursing facilities operated by Paksn Inc. has "systematically" failed to meet state minimums for direct patient care and staffing, according to a state court class action. Maryann N. Valentine says Vacaville, Calif.-based Paksn, Thekkek Health Services, and seven nursing homes and licensees owned by Antony and Prema Thekkek have continuously failed to provide 3.2 hours of daily, direct nursing care to each patient as mandated by Cal. Health & Safety Code.

Nursing Homes: HOME'S NEGLECT CAUSED ACTOR GENE BARRY'S DEATH, FAMILY SAYS, Barry v. Sunrise of Woodland Hills, 18 No. 8 Westlaw Journal Health Law 8, Westlaw Journal Health Law December 21, 2010
The children of film and television actor Gene Barry have alleged in a California state court lawsuit that a Los Angeles-area nursing home caused his death by neglecting to monitor his condition after a debilitating fall. According to the complaint filed in the Los Angeles County Superior Court, Sunrise of Woodland Hills admitted Barry in 2009 despite knowing it was not equipped to meet his needs as an Alzheimer's and dementia sufferer.

Pharmaceuticals: GLAXO AND SUBSIDIARY SETTLE CIVIL, CRIMINAL CASES FOR $750 MILLION, United States v. GlaxoSmithKline, 18 No. 8 Westlaw Journal Health Law 9, Westlaw Journal Health Law December 21, 2010
Pharmaceutical firm GlaxoSmithKline has agreed to pay the government $600 million, and its SB Pharmco subsidiary will plead guilty to violating federal law and pay a $150 million fine for shoddy drug manufacturing at a Puerto Rico plant. The civil and criminal cases were based on violations of the Food, Drug and Cosmetic Act, 21 U.S.C. 351(a)(2)(B), at SB Pharmco's now-closed plant in Cidra, Puerto Rico.

Obstruction of Justice: FORMER GLAXO LAWYER CHARGED WITH OBSTRUCTION IN 'OFF-LABEL MARKETING' CASE, United States v. Stevens, 18 No. 8 Westlaw Journal Health Law 10, Westlaw Journal Health Law December 21, 2010
A former vice president and in-house counsel at GlaxoSmithKline has been indicted for allegedly withholding documents from the Food and Drug Administration during an investigation into the marketing of an antidepressant for unapproved uses. The Justice Department identified the attorney as Lauren Stevens, of Durham, N.C. The charges were filed in the U.S. District Court for the District of Maryland. Although the drug and the name of Stevens' employer were not disclosed in the agency's statement.

Wrongful Death: LACK OF BLOOD FOR DYING MOM COSTS MINNESOTA HOSPITAL $4.6 MILLION, Calcagno v. Emery, 18 No. 8 Westlaw Journal Health Law 11, Westlaw Journal Health Law December 21, 2010
A Minnesota jury has awarded $4.6 million to the family of woman who died following the birth of her first child because the hospital did not have enough blood for a transfusion. Claudia Calcagno, 36, died hours after giving birth to her son Jan. 18, 2008, at Monticello-Big Lake Community Hospital, according to the complaint filed in the Wright County District Court. Calcagno bled to death after Drs. Jennifer Emery and Timothy Olson could not perform a lifesaving transfusion.

News in Brief: NEWS IN BRIEF, 18 No. 8 Westlaw Journal Health Law 12, Westlaw Journal Health Law December 21, 2010
Christian group to challenge health care reform ruling A Christian legal group says it will challenge a federal judge's decision allowing the government to require uninsured individuals to purchase health insurance coverage. U.S. District Judge George Caram Steeh denied the Thomas More Law Center's request for an injunction against a provision in the Patient Protection and Affordable Care Act that imposes a penalty on anyone who fails to buy or otherwise obtain health insurance by 2014.
Automotive (Personal Jurisdiction): OVERSEAS GOODYEAR COMPANIES SAY THEY CAN'T BE SUED IN U.S., Goodyear Luxembourg Tires v. Brown, 21 No. 12 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage December 23, 2010
Goodyear companies based in Luxembourg, Turkey and France argue in a merits brief to the U.S. Supreme Court that they should not be subject to jurisdiction in this country simply because their products are sold here. "The exercise of general jurisdiction over petitioners, simply because their products reached North Carolina through the stream of commerce, violates the due-process clause," the companies say.
Automotive (Preemption): TRIAL LAWYERS: PREEMPTION RULING DENIED 'RIGHT TO LEGAL RECOURSE FOR INJURY', Williamson v. Mazda Motor Am., 21 No. 12 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage December 23, 2010
The American Association for Justice says in an amicus brief filed with the U.S. Supreme Court that a California appeals court's ruling in a seat belt case "expands the doctrine of preemption far beyond its constitutional foundation." The group also says the decision denied the plaintiffs a valid remedy for wrongful death. The plaintiffs are Delbert and Alexa Williamson, the husband and daughter, respectively, of accident victim Thanh Williamson.

Bankruptcy: SUPREME COURT HEARS BANKRUPTCY CASE OVER OWNERSHIP COSTS FOR VEHICLES, Ransom v. MBNA Am. Bank, 21 No. 12 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Oct. 4 in a dispute over whether Chapter 13 debtors who own vehicles free and clear of any obligations can take the standard "ownership costs" deduction when calculating their projected disposable income. At issue is a 2009 decision by the 9th U.S. Circuit Court of Appeals that above-median-income debtors can deduct vehicle ownership expenses only if they are actually making automobile loan or lease payments.
Bankruptcy: FEDS, TRUSTEES GROUP BACK ANNA NICOLE SMITH'S ESTATE IN SUPREME COURT, Stern v. Marshall, 21 No. 12 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage December 23, 2010
The federal government and a group of bankruptcy trustees have told the U.S. Supreme Court that a bankruptcy judge had the authority to award Anna Nicole Smith a huge chunk of her billionaire husband's estate. Acting U.S. Solicitor General Neal Katyal and the National Association of Bankruptcy Trustees filed separate amicus briefs supporting Smith's former boyfriend and lawyer, Howard K. Stern, in his bid to reinstate the late bombshell's inheritance.Stern claims the 9th U.S. Circuit Court of Appeals.
Class Action: SUPREME COURT TO DECIDE IF STATES CAN BAN CLASS-ACTION WAIVERS, AT&T Mobility v. Concepcion, 21 No. 12 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage December 23, 2010
In a case that could affect the future of class-action litigation, the U.S. Supreme Court heard oral argument Nov. 9 to determine if federal arbitration law preempts state laws that ban class-action waivers in contracts. AT&T Wireless customers filed three suits in California federal court in 2005 and 2006, alleging the telecom fraudulently charged $30 in sales tax for phones it advertised as "free." Although the company tried to force the plaintiffs to arbitrate their claims.
Class Action (Pharmaceuticals): HIGH COURT TAKES UP CLASS CERTIFICATION FIGHT IN SUIT OVER RECALLED DRUG, Smith v. Bayer Corp., 21 No. 12 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will hear oral argument Jan. 18 over whether a West Virginia man's proposed state court class action over the cholesterol drug Baycol was properly blocked because a similar suit had already been rejected by a Minnesota federal court. Keith Smith filed a proposed economic-loss class action against Baycol maker Bayer Corp. in a West Virginia state court shortly after the drug's 2001 recall. The suit was dismissed in a ruling later affirmed by the 8th U.S. Circuit Court of Appeals.

Class Action (Employment): WAL-MART GETS HIGH COURT TO HEAR LARGEST-EVER CLASS ACTION, Wal-Mart Stores v. Dukes, 21 No. 12 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage December 23, 2010
In a move that is expected to permanently change the landscape of class- action lawsuits, the U.S. Supreme Court has agreed to hear Wal-Mart Stores' challenge to a gender discrimination lawsuit with 1.5 million potential plaintiffs. "While not unprecedented, the Supreme Court's decision to address this issue likely signals that it intends to review the underpinnings of the expansive class certified in this case and the extent to which the pursuit of punitive damages impacts the certification.

Computer & Internet (First Amendment): CALIFORNIA, VIDEO GAME INDUSTRY GO TO BATTLE OVER VIOLENT-GAMES BAN, Schwarzenegger v. Entm't Merchants Ass'n, 21 No. 12 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Nov. 2 in California's bid to reinstate its ban on the sale of violent video games to minors. The state is challenging a decision of the 9th U.S. Circuit Court of Appeals that struck down the law last year. Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).The appeals court upheld a ruling in favor of the Entertainment Software Association and the Video Software Dealers Association, two industry trade groups that sued the state.

Employment (Roundup): SUPREME COURT AGREES TO SETTLE EMPLOYMENT LAW CONFLICTS, 21 No. 12 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage December 23, 2010
So far this term, the U.S. Supreme Court has agreed to review eight employment-related lawsuits, including Wal-Mart Stores v. Dukes, by far the most watched case this year. Dukes is a huge gender-bias class action with a potential plaintiff class of 1.5 million women and billions in damages. This roundup looks at six of those cases, which cover a range of topics, including workplace privacy, third-party retaliation, liability for employment of "unauthorized aliens".

Employment: JUSTICES TO DECIDE IF ORAL COMPLAINT COVERED BY WAGE-AND-HOUR STATUTE, Kasten v. Saint-Gobain Performance Plastics Corp., 21 No. 12 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard argument in October in a case where an employer accused of retaliation under a federal wage-and-hour law has defended itself by arguing the fired employee's oral complaint is not protected under the statute. A decision in the case is expected to have huge ramifications for workers who hope to prove that they were targeted for retaliation because they engaged in a protected activity. This is especially relevant given the fact that employees frequently complain orally.

Environmental: CLIMATE CHANGE CASE HEADS TO SUPREME COURT, Am. Elec. Power Co. v. Connecticut, 21 No. 12 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court said Dec. 6 it would review an appeals court decision that revived a public nuisance lawsuit against several power companies by eight states seeking to reduce greenhouse gas emissions from coal-burning facilities. The companies want the high court to decide whether judges can regulate greenhouse gas emissions at the behest of states and private parties and, if so, under what standards. Attorney Richard Faulk of Gardere Wynne Sewell.
Government Contract: STATE SECRETS PRIVILEGE TESTED IN GOVERNMENT CONTRACT CASE, Gen. Dynamics Corp. v. United States, 21 No. 12 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will be determining the role of the state secrets privilege in a lawsuit brought by two companies challenging the government's termination of their contract to build Navy jets. The high court agreed to hear the case Sept. 28 upon the request of both Boeing Co., as the successor to McDonnell Douglas Corp., and General Dynamics Corp. The companies are asking the Supreme Court to decide whether the government can assert the state secrets privilege.

Intellectual Property (Patent Infringement): STANDARD FOR INDUCEMENT OF PATENT INFRINGEMENT IS BEFORE HIGH COURT, Global-Tech Appliances v. SEB S.A., 21 No. 12 Westlaw Journal Insurance Coverage 14, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether "deliberate indifference" is the correct standard for the "state of mind" element in a claim for active inducement of patent infringement. Petitioner Pentalpha Enterprises Ltd. argues that the U.S. Court of Appeals for the Federal Circuit got it wrong when it applied the deliberate- indifference standard. The appeals court should have used the "purposeful, culpable expression and conduct" standard applied by the Supreme Court in MGM Studios.
Intellectual Property: UNIVERSITY'S PATENT RIGHTS BATTLE WITH BIOTECH FIRM ON COURT'S DOCKET, Stanford Univ. v. Roche Molecular Sys., 21 No. 12 Westlaw Journal Insurance Coverage 16, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether a federal law pertaining to government contractors' patent assignment rights barred a Stanford University researcher from assigning his rights to a third party. In its petition for certiorari Stanford said the U.S. Court of Appeals for the Federal Circuit was wrong when it said no. Opposing Stanford is Roche Molecular Systems, which says the Federal Circuit correctly decided that the Bayh-Dole Act, 35 U.S.C. 200, did not bar the assignment.

Pharmaceutical (Preemption): COURT TO RULE ON PREEMPTION OF STATE LAW CLAIMS AGAINST VACCINE MAKERS, Bruesewitz v. Wyeth Inc., 21 No. 12 Westlaw Journal Insurance Coverage 17, Westlaw Journal Insurance Coverage December 23, 2010
In oral argument held Oct. 12 the U.S. Supreme Court grappled with the question of whether the National Childhood Vaccine Injury Act bars all design defect claims or whether a family has recourse for an injury in state court. The case was argued before eight justices. Justice Elena Kagan recused herself because she was serving as U.S. solicitor general when the government submitted an amicus brief urging the high court to review the case.A 4-4 tie would result in a win for defendant Wyeth Inc.

Securities Litigation & Regulation (Fraud): JUSTICES WEIGH ARGUMENTS ON INVESTMENT ADVISERS' 'MISLEADING' STATEMENTS, Janus Capital Group v. First Derivative Traders, 21 No. 12 Westlaw Journal Insurance Coverage 18, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard arguments Dec. 7 in a case that will decide whether shareholders can sue mutual fund manager Janus Capital Group for allegedly helping to mislead investors. The plaintiff, First Derivative Traders, traded shares of Janus stock and alleged that the stock price was artificially inflated as a result of misleading statements in the prospectuses. In November several groups filed amicus briefs supporting the plaintiff's position.

Securities Litigation & Regulation (Fraud): HIGH COURT TO RULE ON DRUG COMPANIES' DUTY TO DISCLOSE 'ADVERSE EVENTS', Matrixx Initiatives v. Siracusano, 21 No. 12 Westlaw Journal Insurance Coverage 19, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court is set to hear arguments in a securities fraud case that has the pharmaceutical industry alarmed over the prospect of having to disclose to investors so-called "adverse event reports" even when those reports are statistically trivial. Adverse event reports are anecdotal complaints from users indicating harm from a pharmaceutical product. The case involves Zicam, an over-the-counter cold remedy marketed by defendant Matrixx Initiatives Inc.

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