Trial lawyers on both sides of class actions and products liability lawsuits talked to The National Law Journal about what Justice Antonin Scalia’s death could mean going forward, particularly for cases pending before the U.S. Supreme Court, and what they’re looking for in his potential replacement.
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Are Punitive Damages Rulings Affecting the Outcomes of Mass Tort Trials?
Cozen O'Connor attorney James H. Heller said a ruling on the availability of punitive damages changes the standard for introducing prior-incidents evidence. Although it's not supposed to, Heller said, this can potentially lead juries to increase awards when considering liability and compensatory damages.
"The thought and fear is that the jury will instead use it to decide liability," Heller said. "Pain and suffering is subjective, and so being that it's so subjective, the jury has got a lot of leeway. If they get angry for lack of evidence on the defense side, or the amount of evidence of misconduct on the other side, the way they can show it is to use that subjectivity to increase the amount of the verdict."
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GM Ignition Plaintiffs Seek Alternatives to Scheduled Bellwether Trials
Lawyers for plaintiffs suing General Motors over a faulty ignition switch are seeking alternatives to a plan to try five more early test cases in federal litigation against GM over the issue, after a first trial fell apart unexpectedly.
In a letter sent to U.S. District Judge Jesse Furman in Manhattan, who oversees the cases, the lawyers said trying the remaining cases set for this year may not be the most efficient way to advance the resolution of hundreds of remaining injury and death claims. The faulty switch is linked to nearly 400 injuries and deaths.
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Amarin and FDA Near Deal on Off-Label Discussions with Doctors
Amarin and the FDA have indicated they are near to hashing out a legal settlement in their fight over what is considered a major free-speech issue for drugmakers and their right to discuss off-label drug uses. The two told a New York court they need at least another 30 days to get it done.
Dublin, Ireland-based Amarin in August won a declaratory judgment from a federal court that said the FDA cannot bar Amarin from discussing off-label use of its fish-oil drug Vascepa for a wider group of patients than it is approved for if what it is saying is truthful.
The fight stems from Amarin's intention to discuss with doctors the benefits of its fish-oil derived med Vascepa, for off-label uses. The drugmaker has struggled to get traction for Vascepa, which is approved only for lowering extremely high triglyceride levels, an indication much narrower than Amarin had hoped for. While trials showed the drug did, in fact, lower high blood lipids it targets, it did not show it actually prevented coronary artery disease. When the FDA rejected it for the broader use, it said in its complete response letter that any effort to promote that way would be misbranding.
VM Class Action Emissions Lawyers File Similar Cases Against Mercedes
An owner of a Mercedes BlueTEC diesel car filed a class-action lawsuit in the United States, accusing the carmaker of knowingly programming its Clean Diesel vehicles to emit illegally high levels of nitrogen oxide, according to law firm Hagens Berman.
Hagens Berman said in a statement that on-road testing had shown Mercedes's Clean Diesel cars produced average on-road NOx emissions that were 19 times above the U.S. standard, with some instantaneous readings as high as 65 times more than the U.S. limit.
Judge Refuses to Dismiss Price-Fixing Claims Against Drywall Makers
A federal judge has ordered that all the remaining drywall manufacturers in the price-fixing antitrust litigation but one will have to remain in the case.
The drywall manufacturers requesting summary judgment were National Gypsum, CertainTeed, American Gypsum, Lafarge and PABCO. CertainTeed's summary judgment motion was the only one granted by Baylson. In March, two former defendants, USG Corp. and TIN Inc., settled with the direct and indirect purchaser plaintiffs for a total of $55 million. Altogether, the defendants represent just over 89 percent of all U.S. drywall sales.
The remaining defendants claimed they "were merely 'following the leader,' which they argue is an expected and legal business practice in an oligopoly," Baylson wrote, noting that American was the first company to send a letter in 2011 notifying customers of a 35 percent price increase.
D.C. Whistleblower Bar ‘Organizing to Push Back’ Against Disciplinary Charges
The DC Disciplinary Counsel — previously known as the DC Bar Counsel — is on the attack against whistleblower lawyers.
And whistleblower lawyers are not happy about it. They have launched something of a counterattack.
Former Justice Department official and whistleblower lawyer Jesselyn Radack told Corporate Crime Reporter that the Disciplinary Counsel “has a nasty history of politically-motivated bar discipline, especially against whistleblowers and attorneys for whistleblowers.”
Emails Suggest Top VW Execs Knew About Emissions Cheating Software as Early as 2014
The New York Times has obtained internal e-mails and memos from Volkswagen Group that may suggest that top executives within the company were aware as early as 2014 that many of their diesel vehicles had illegal emissions control-cheating software.
If executives were aware that their cars had emissions system cheating software on them before the US Environmental Protection Agency (EPA) notified the company that it was in violation of federal rules, Volkswagen Group could face harsher fines and penalties for failing to disclose to shareholders issues that could materially affect the company’s stock price.