Court Tosses Federal Tax Statute covering Emotional Damages
October 30, 2006
It is not every day that a Circuit Court of Appeals sets aside as unconstitutional a federal tax statute. When the taxability of untold millions of dollars of personal injury settlements and verdicts is affected, people generally take note. The U.S. Court of Appeals for the Fifth Circuit on Aug. 22 struck down as unconstitutional an amendment made to Code ' 104(a)(2) (All references to the Code are to the Internal Revenue Code of 1986 as amended). If the decision stands, it could be one of the most significant tax developments in decades.
Report Calls for Sweeping Changes At the FDA
October 30, 2006
In September, the Institute of Medicine of the National Academy of Sciences, a congressionally created entity dedicated to the study of policy matters pertaining to the public health, issued the results of the study of federal drug safety policy commissioned by the Food and Drug Administration (FDA). The resulting report, titled 'The Future of Drug Safety, Promoting and Protecting the Health of the Public' and published in the Archives of Internal Medicine, has been widely anticipated in light of recent publicity surrounding Vioxx' and other drugs that, subsequent to FDA-approval, proved more dangerous than thought.
Kumho for Clinicians in the Courtroom
October 30, 2006
Two Supreme Court rulings, <i>Daubert v. Merrill Dow Pharmaceuticals Inc.</i> and <i>Kumho Tire v. Carmichael</i>, have had a profound effect on the treatment of expert testimony in the courts. In 1993, the Supreme Court, in Daubert, articulated guidelines for admissibility of scientific expertise as testimony. Later, in 1999, in <i>Kumho</i>, the Court focused on the admissibility of clinical expertise as testimony. More recently there has been increasing recognition of the inconsistency of trial courts in their construction and articulation of evidentiary standards to medical testimony. One proposed remedy is that 'Physicians should respond by correcting courts' misinterpretations of medical practice and assisting in the development of legal standards that encourage thoughtful and informed consideration of medical testimony by judges and juries.'
Prescription Drug Litigation Pre-emption Following the FDA Preamble: The Defense Perspective
September 28, 2006
It has now been more than 9 months since the U.S. Food and Drug Administration ('FDA') issued its new labeling rule for prescription drugs with an extensive preamble analysis of how many state tort legal claims conflict with and accordingly are pre-empted by the its regulation of such drugs. The FDA re-emphasized its position that state tort law claims threaten its ability to pursue its statutory mandate of protecting public health through balanced labeling. It thus explained that 'under existing pre-emption principles, FDA approval of labeling under the [FDCA] pre-empts conflicting or contrary State law.' 71 Fed. Reg. 3922, 3933 (Jan. 24, 2006).
Verdicts
September 27, 2006
The latest rulings of importance to you and your practice.
Med Mal News
September 27, 2006
News from around the country.
When Drug and Device Company Reps Enter the Room
September 27, 2006
It is becoming increasingly common for medical company representatives to be present in examination rooms, procedure rooms and even in operating rooms. Because of this trend, it is important not only for medical companies, but also for hospitals and physicians to be aware of the potential liability related to having these representatives present during examinations or procedures.
After Counseling Fails, Many Sue Therapists
September 27, 2006
The growing popularity of therapy for everything from marriage troubles to drinking problems has the mental health care community paranoid about lawsuits. Legal and health care experts say that therapists today face a greater risk of being sued than ever before, particularly given the 55% divorce rate and the breakdown of the family.
Fight over Policing of Expert Testimony Heats Up
September 27, 2006
In three recent decisions, courts in North Carolina, Florida and Kansas have expressed displeasure with ... extra-judicial attempts by the medical profession to police its own members. This article looks at these recent cases and the impact of those cases on expert witness testimony in medical malpractice litigation.
