The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the Court of Judicial Discipline ordering that suspended state Supreme Court Justice Joan Orie Melvin not be paid during her interim suspension. As reporter Zack Needles writes, a six-judge panel issued a 45-page opinion and order Thursday, voting 5-1 to suspend Orie Melvin’s pay.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that a letter to an expert’s employer got a defense attorney disqualified from representing her own client.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a family must forfeit 10 exceedingly rare and likely ill-gotten coins, a federal judge has ruled. The coins were never circulated and were stolen from the Philadelphia Mint sometime shortly after they were cast in 1933.

In more Regional News on Page 3, Amaris Elliott-Engel writes that new Philadelphia Association of Defense Counsel President Dennis Veneziale will continue to focus on young attorneys and provide programming and training for them.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Personal Injury column on Page 5, Douglas H. Sell Jr. writes about flushing out financial information to assist your expert.

In a Litigation column on Page 7, Judy Weintraub and Harrie Samaras write the eighth part in their series on mediation advocacy, this time about strategy for the initial joint session.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is the third in reporter Amaris Elliott-Engel’s series on products liability, as she writes about how the role of settlement has been growing in products liability cases.

Also above the fold on Page 1, reporter Saranac Hale Spencer writes that the insurance trust fund for the Miami police officers’ union has brought a class action suit against AstraZeneca for its drug Nexium and the manufacturers of its generic versions. The suit, filed in the Eastern District of Pennsylvania, alleges AstraZeneca paid the generic companies to keep their drugs off the market.

Below the fold on Page 1, reporter Gina Passarella writes that a Lehigh County judge took issue with the uptick in law agencies’ use of child pornography laws to prosecute teens who “sext.”

In more Regional News on Page 3, Saranac Hale Spencer writes that a Middle District judge awarded more than $1 million in attorney fees to members of the funeral industry who won their suit against the state Board of Funeral Directors and took the defense to task for their approach to the litigation.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Health Care Law column on Page 5, Vasilios J. Kalogredis and Karilynn Bayus write about a New Jersey Supreme Court ruling on providers’ discovery obligations.

In a Trusts and Estates column on Page 7, Robert H. Louis writes about the importance of planning over the next four months.

Today’s lead story in PLW is the state Supreme Court ruling that tax collectors’ pay must be reasonable, a ruling plaintiffs counsel called a “watershed moment” for Pennsylvania’s elected tax collectors, as reporter Zack Needles writes.

Below the fold on Page 1, reporter Ben Present writes that attorneys have said there was no ethical breach for a Dauphin County judge with political ties to state Senator Jeffrey E. Piccola. The judge presided over one of the estates that Piccola worked on in his work with an “heir-hunting” firm.

On Page 3, Zack Needles writes that the state Supreme Court has agreed to take up the question of whether a government entity is a “person” subject to lawsuits under the Unfair Trade Practice and Consumer Protection Law.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers waiving future conflicts; Brandon Swartz’s Personal Injury column on hand injuries; and David Mandelbaum’s Environmental Law column on the Act 13 decision.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story today is a debate regarding privilege-waiver issues in the Catholic Archdiocese abuse case. As reporter Amaris Elliott-Engel writes, attorneys for the archdiocese say it may assert attorney-client privilege that can’t be waived even if its former personnel director – who is accused of endangering the welfare of children by not taking proper action to protect them from sexually abusive priests – waives his own privilege.

Also above the fold on Page 1, Amaris Elliott-Engel writes about the latest legal salvo between Pennsylvania Chief Justice Ronald D. Castille and federal capital case defenders. Castille said in an opinion last week that Defender Billy H. Nolas has created “state-federal gridlock” in a Philadelphia murder case by telling the trial court that his client’s federal appeals pending in the 3rd U.S. Circuit Court of Appeals were being paused to allow state-court proceedings to go forward.

On the bottom of Page 1 today, reporter Zack Needles writes that a man injured in a drywall accident has settled for $5.75 million with the subcontractor whose employee allegedly dropped the drywall.

In more Regional News on Page 3, a Cherry Hill, N.J., firm is suing a former whistleblower client for a share of an award the client received after she revoked the firm’s power of attorney.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s Employment Law column on Page 5, Vianei Lopez Robinson of Legal affiliate Texas Lawyer writes about some fixes that companies should make this year, including updating the company’s social media policy.

In a Criminal Practice column on Page 7, Richard Q. Hark writes about some recent changes to Megan’s Law that will add challenges for juvenile offenders attempting to rehabilitate themselves.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

Leading the front page this morning, U.S. Courthouse Correspondent Shannon P. Duffy has a verdict story from the Eastern District of Pa.: "A federal judge has awarded more than $17.5 million in a medical malpractice suit against the Veterans Administration brought by a former Marine who suffered a disabling stroke after a dental procedure in which his blood pressure had dropped precipitously several times."

Below the fold, senior reporter Gina Passarella writes, "It seems to be the age old question for Pennsylvania courts -- is SEPTA a state agency or not? Attorneys for both the regional transportation authority and a group of railroad division employees trying to sue SEPTA in state court under the Federal Employers Liability Act argued before the state Supreme Court Wednesday that case law and statutes were on their side. The problem is they are on very different sides of the argument."

Reporter Zack Needles has today's Page 3 Regional News story, also from Supreme Court oral arguments: "The state Supreme Court heard arguments Wednesday regarding the Philadelphia Parking Authority's procedure for enacting new regulations. The question before the court was whether the PPA is a 'hybrid agency with a unique rulemaking procedure' and is therefore exempt from having to solicit public comment on its proposed regulations."

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Today's Page 5 "Asset Management" column is from one of our sister publications, the New Jersey Law Journal, which examines the idea of distributing "virtual" assets in contemporary estate planning,including social media and electronic personal property.

The Page 7 column is on "Environmental Law" by Kenneth J. Warren of Hangley Aronchick Segal & Pudlin, who writes, "On July 22, the U.S. Environmental Protection Agency published a proposal to revise its Definition of Solid Waste rule. Companies engaged in hazardous materials recycling should carefully review the proposed regulations and consider commenting on them."

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal!

Fresh Ink: Inside Today's Legal (and PLW!)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

As is the case every Tuesday, today's paper is especially full, because it includes our Pennsylvania Law Weekly section, which includes analysis pieces, our Verdicts & Settlements section, and contributed columns by Samuel Stretton (Ethics), Brandon Swarz (Personal Injury), and Jeff Jubelirer (Public Relations).

But let's begin with The Legal.

Topping today's front page, reporter Amaris Elliott-Engel has an analysis piece regarding the impact of the state Supreme Court's decision in Insurance Federation of Pennsylvania v. Koken. Even though Koken eliminated the Pennsylvania Insurance Department's command that automobile policies have mandatory arbitration clauses, attorneys around the state say that arbitration remains popular for the resolution of motor vehicle claims brought by motorists against their insurers under their uninsured/underinsured (UM/UIM) motor vehicle policies.

Below the fold, senior staff reporter Gina Passarella has the sixth and final piece in her weekly series examining the impact of e-discovery on the practice and business of law. This week, she writes that much is said about the burdens and challenges of e-discovery, and rightfully so, but the list of organizations dedicated solely to improving the process are nearly just as prevalent. 

Inside, in our Page 3 Regional News section, Gina has another business of law story, this time about a new practice. Dechert has created an outsourcing and offshoring practice under the umbrella of its intellectual property department in order to take advantage of the growing desire of its clients to outsource certain non-core business functions.

As always, our People in the News section is on Page 2. The top stories from our sister publications across the country make up our Page 4 National News section.

The Legal's contributed columns today include an "Eastern District Practice" column by Peter F. Vaira of Vaira & Riley, who discusses litigation costs that may be awarded to the prevailing party in a lawsuit pursuant to Local Civil Rule 54.1 and 28 U.S.C. § 1920. The article will not discuss the award of attorney fees.

Our second contributed article is "Upon Further Review," Howard Bashman's appellate column. Bashman hails the advent of cameras in the courtroom, calling it a "new day for openness" in the Pennsylvania appellate courts.

Today's Pennsylvania Law Weekly section begins with a story by reporter Ben Present, who writes, "A controversy in Western Pennsylvania stemming from allegations that a judge ordered her court reporter to alter transcripts from a murder trial became more complicated Thursday after the court reporter's lawyer said the court reporter denies altering the transcript and plans to sue one of the attorneys alleging misconduct."

Below the fold, reporter Zack Needles has an analysis piece regarding the continuing legal troubles of the Orie sisters. He writes, "As state Sen. Jane C. Orie, R-Allegheny, faces a new round of charges and a retrial on the horizon, legal watchers say her sister, state Supreme Court Justice Joan Orie Melvin, may be feeling the heat now more than ever."

And that is just the front page! Head to the main website of the PLW section to check out even more content from across the commonwealth.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal and PLW!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Fresh Ink: Inside Today's Legal

By Jaime Bochet 
Of the Legal Staff

Happy Friday, and welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Before you embark on this Labor Day weekend, click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Leading the front page on this Friday morning, U.S. Courthouse Correspondent Shannon P. Duffy has a settlement story: A construction worker who suffered a career-ending back injury in a 20-foot fall when the unsecured metal decking he was working on collapsed will be paid $4.6 million in a global settlement with a general contractor and two subcontractors.

Below the fold, reporter Amaris Elliott-Engel writes that a Lehigh County magisterial district judge violated the Pennsylvania Constitution and standard of conduct for MDJs by telling her staff that she would not be coming to court 116 days over a two-year period and, when she did come to court, habitually arriving tardily, the state Court of Judicial Discipline ruled this week.

Also below the fold, senior reporter Gina Passarella has a law firm news story. Fox Rothschild has expanded in Washington, D.C., with the addition of eight construction and government contracting attorneys from construction law boutique Smith Currie & Hancock. The additions will also serve to form a new practice area for the firm -- the government contracts and procurement practice.

Our Page 3 Regional News story today is Amaris's interview  with the new president of the Philadelphia Association of Defense Counsel, Gerald J. Valentini, who is planning an active agenda for the organization this year.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Today's Page 5 "Litigation" column is an article that originally appeared in our Houston affiliate Texas Lawyer: "To deal effectively with questions from the bench, a lawyer must appreciate the queries for what they are, anticipate what questions may be asked and prepare truthful responses that advance the client's position."

Turn to Page 7 for our "Asset Management" column by Mark L. Silow of Fox Rothschild, who writes that the IRS Whistleblower Program can be a tool to target non-compliance.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

As is the case every Tuesday, today's paper is especially full, because it includes our Pennsylvania Law Weekly section, which includes analysis pieces, our Verdicts & Settlements section, and contributed columns by Samuel Stretton (Ethics), Brandon Swartz (Personal Injury), Dorothy K. Phillips (Family Law) and Cliff Rieders (Civil Practice).

But let's begin with The Legal.

Once again, U.S. Courthouse Correspondent Shannon P. Duffy has the front-page top story, who has another e-discovery case out of the Eastern District of Pennsylvania. For plaintiffs, the cost of losing is skyrocketing in antitrust and other complex, document-intensive cases now that the federal courts are routinely approving hefty bills for e-discovery services in the standard taxation of costs. Illustrating that trend is the recent decision by the clerk in the Eastern District to tax costs of more than $576,000 against the losing plaintiffs in In re Aspartame Antitrust Litigation.

Below the fold, reporter Gina Passarella writes that K&L Gates has put a new office managing partner in place in its Pittsburgh headquarters after the former head took on a new role co-leading the firm's recently created energy, infrastructure and resources practice group. 

Inside, in our Page 3 Regional News section, reporter  Zack Needles writes that Bala Cynwyd, Pa.-based law firm Seitzinger & Randazzo has challenged as unconstitutional provisions of the Pennsylvania Workers' Compensation Act limiting attorney fees, but a Commonwealth Court panel said the state legislature may impose a ceiling on fees in certain situations.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section. Don't miss today's announcement on Page 2 of the 27 attorneys who have been named The Legal's 2011 "Lawyers on the Fast Track!"

The Legal's contributed columns begin on Page 5, with a Business of Law column by Frank Michael D'Amore, who explores the benefits of balancing zealous advocacy with fairness. The second contributed article is a preview of our "Construction Law" supplement by Jason Richey and John Estep of K&L Gates, who wonder if Pennsylvania oil and gas wells are ripe targets for mechanics’ liens. Watch for the full supplement in The Legal on August 16!

Today's Pennsylvania Law Weekly section begins with an analysis article by reporter Ben Present, who writes that an insured in an underinsured motorist case may obtain discovery into her insurance carrier's evaluation of her claim, a Dauphin County judge has ruled, but defense attorneys have called the order an "aberration," asserting such discovery is prohibited under state rules of civil procedure in post-Koken auto insurance litigation.

Also on the PLW front page, Zack Needles reports that aviation lawyers say airline claims are up, and air crash cases remain steady. 

The PLW has much more, so head to the main website of that section to check out even more.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Automobile Accidents and the Practice, on 'The American Law Journal'

Twenty years ago, every personal injury practice included a fair share of auto accident cases. Not so today. Aside from significant insurance options, what else has changed the face of this area of practice?

On Monday, Feb. 21, at 7 p.m. on Philadelphia CNN-News affiliate WFMZ-TV 69, "The American Law Journal" presents “Auto Accident Claim? No Thanks.” Host Attorney Christopher Naughton welcomes defense counsel James C. Haggerty of Swartz Campbell, plaintiffs lawyers Jamie L. Sheller of Sheller P.C. and J. Robert Bratman of Stark & Stark, and Harris T. Bock of The Dispute Resolution Institute.

The program examines the critical decisions consumers must make before and after an accident and the approach of lawyers in auto-related legal matters today.

“I can tell you that we are not taking cases today that years ago we would have taken,” said Bratman. Sheller concurred, “People are ending up not getting justice.”

"The American Law Journal" is the weekly talk-feature program on the CNN-News affiliate WFMZ-TV 69 and streaming on www.WFMZ.com. View programs, schedules, lawyer profiles and more on the new website, www.LawJournalTV.com or on Facebook, www.facebook.com/AmericanLawJournal. Next week: “Accelerating Your SSD Claim.”

9th Circuit: FDA Regulations Do Not Pre-empt State Failure to Warn Claims

By Adrianne E. Walvoord
Special to the Legal

The 9th U.S. Circuit Court of Appeals issued an opinion yesterday in Gaeta v. Perrigo Pharmaceuticals Company finding that a generic drug manufacturer’s duty to warn under state law was not pre-empted by federal law.

The Gaetas filed suit against Perrigo and several other manufacturers of generic ibuprofen after their son developed liver failure and other serious complications resulting in a liver transplant and extremity amputations, after taking generic ibuprofen for 10 days following a surgical procedure to remove benign moles.  During the procedure, the plaintiffs’ son received an anesthetic known to be hepatotoxic or harmful to the liver.

The plaintiffs alleged defective design, defective marketing, breach of express and implied warranty, negligence and gross negligence, and deceit by concealment. They consistently argued that the manufacturers failed to warn prescribing physicians and consumers of the increased risk of acute liver injury failure when ibuprofen is taken concurrently with other drugs known to be hepatotoxic.

Perrigo moved for summary judgment on pre-emption grounds, arguing that the Gaetas’ state law failure-to-warn claims conflicted with FDA regulations relating to the labeling and marketing of generic drugs.

The district court granted summary judgment, holding that the plaintiffs’ claims were pre-empted because a generic manufacturer could not comply with the heightened state law warning requirements without running afoul of the FDA regulations requiring generic drug labels to conform to the approved labeling for brand name drugs.

After the district court’s decisions in Gaeta, the Supreme Court in Wyeth v. Levine determined that federal regulations did not pre-empt state law claims in name-brand drug cases. The district court denied reconsideration of the Gaetas’ claim despite Levine, and the 9th Circuit accepted the appeal, which was an issue of first impression, to determine “what effect, if any, the Supreme Court’s decision in Levine has on the question whether applicable FDA regulations pre-empt state tort law claims for inadequate labeling against generic -- as opposed to brand name-- manufacturers.”

In reaffirming Levine, the Gaeta court did not give generic drug manufacturers a reprieve from their duty and stated that “drug manufacturers bear primary responsibility for maintaining their labels consistent with safe and effective use of their products.”

There are currently two cases in the Supreme Court involving the question whether federal regulations pre-empt state law failure to warn claims against generic manufacturers.

The 9th Circuit’s sound reasoning in Gaeta provides a good litmus test on a generic manufacturer’s ability and duty to provide warning for its drugs. I believe the Supreme Court will be hard-pressed to find against its decision in Levine; for it to hold otherwise would mean that consumers injured by generic drugs would be left without a remedy while a remedy remained available to those harmed by name-brand drugs. Because estimates show as many as 70 percent of prescriptions are filled with generic drugs, the stakes are high.

Adrianne E. Walvoord is an associate at Anapol Schwartz Weiss Cohan Feldman & Smalley handling pharmaceutical and medical device litigation involving complex medical, scientific, and legal issues.  She practices in federal court, as well Pennsylvania and New Jersey state courts. She also currently represents juveniles affected by the Luzerne County Juvenile Detention Center scandal. Contact her at [email protected].