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Makers of Paxil, Zoloft Win
Court Issues | 2008/04/25 14:48

In a significant victory for drug manufacturers, the 3rd U.S. Circuit Court of Appeals has ruled that the makers of Paxil and Zoloft cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration has explicitly refused to order such warnings.

Voting 2-1 in a pair of cases where the lower courts issued conflicting rulings, the 3rd Circuit found that such lawsuits must be pre-empted because they directly conflict with action already taken by the FDA.

Writing for the majority, 3rd Circuit Judge Dolores K. Sloviter said the FDA has "actively monitored" the possible risk of suicide from taking the class of antidepressant drugs known as selective serotonin re-uptake inhibitors, or SSRIs, for two decades, and concluded that the suicide warnings demanded by plaintiffs "are without scientific basis and would therefore be false and misleading."

But Sloviter, who was joined by visiting Judge Jane A. Restani of the U.S. Court of International Trade, emphasized that the ruling was a narrow one.

"Our holding is limited to circumstances in which the FDA has publicly rejected the need for a warning that plaintiffs argue state law requires," Sloviter wrote in Colacicco v. Apotex Inc.

In dissent, 3rd Circuit Judge Thomas L. Ambro said he would have allowed both cases to go forward.



Attorney Sues 'Washingtonienne' Author
Press Release | 2008/04/24 15:09
Former Senate Judiciary Committee counsel Robert Steinbuch sued Jessica Cutler, author of the "Washingtonienne" blog and subsequent book, claiming she invaded his privacy by publishing "in graphic detail the intimate amorous and sexual relationship between Cutler and the Plaintiff," including his alleged predilection for spanking.

Steinbuch also sued Hyperion Books, a division of Disney Publishing Worldwide, which allegedly paid Cutler a $300,000 advance for her book, after her blog became a sensation.

n his federal complaint, Steinbuch says, "At the time of his relationship with Cutler, Plaintiff did not know that Cutler was simultaneously engaged in sexual relationships with another man, let alone with five other men, and let alone that she was prostituting herself to some of them; and Plaintiff did not know that Cutler was recording the details of her relationship with Plaintiff in her blog, and Defendant Cutler described Plaintiff as, among other things, a committee counsel who likes spanking. That blog is the subject of a separate and distinct litigaion.

Steinbuch also claims Cutler profited by "capitalizing on the publicity generated by her blog and her relationship with Plaintiff" by signing a deal with Playboy that included a nude photo spread of her, and the "thinly disguised novel, of the roman a clef genre," in which her relationship with him is "described in graphic detail."

His complaint adds: "Hyperion specifically advertised the book as being in 'a witty, unapologetic voice, the novel's narrator Jackie tells the story of ... the staff counsel whose taste for spanking she "accidentally" leaks to the office.'"

Steinbuch demands $10 million damages for invasion of privacy, false light, and intentional infliction of emotional distress. He is represented by Jonathan Rosen of Clearwater, Fla.


Officers Denied Immunity For Arresting Protester
Topics | 2008/04/23 14:51
The 10th Circuit denied immunity to five police officers in Albuquerque, N.M., who allegedly arrested a University of New Mexico faculty member during an antiwar protest, simply because he was part of a "large basket containing a few bad eggs."

The court ruled 2-1 that John Fogarty may proceed with a lawsuit accusing the officers of targeting him without probable cause and using excessive force to arrest him during a March 2003 demonstration against the U.S. war in Iraq.

The protest began on the UNM campus and spread to city sidewalks and streets, with between 500 and 1,000 demonstrators voicing their opposition to the war.

Fogarty and a friend joined a drum circle that was "play(ing) a really nice samba," Fogarty claimed. But police accused the drummers of inciting the crowd and making it more difficult to clear the streets.

Capt. John Gonzales told officers to "remove the drums," a statement some interpreted as a direct order to arrest the drummers, Fogarty included. The plaintiff said he was already off the street when officers pelted him with an unknown projectile and arrested him.

Officers allegedly took the handcuffed Fogarty near an area with lingering tear gas, causing Fogarty to suffer an acute asthma attack. He also claimed to have torn a tendon in his wrist during the ordeal.

The majority refused to dismiss Fogarty's claims, ruling that he had provided enough evidence to survive summary judgment at this stage.

"The Fourth Amendment plainly requires probable cause to arrest Fogarty as an individual, not a member of a large basket containing a few bad eggs," Judge Lucero wrote. "In other words, that Fogarty was a participant in an antiwar protest where some individuals may have broken the law is not enough to justify his arrest."


Federal judge dismisses Katrina fraud claim
Topics | 2008/04/22 15:01
A federal judge on Monday dismissed claims of fraud against State Farm Insurance by a Mississippi couple who claimed that the company denied their insurance claim for damage from Hurricane Katrina based on bad faith and fraud. US District Judge L.T. Senter, Jr. rejected the claim, writing:

Plaintiffs allege that State Farm committed actionable fraud in the handling of the plaintiffs' claim. Plaintiffs primarily rely on their contention that State Farm ordered two engineering reports from Forensic in an effort to dishonestly minimize its liability to the plaintiffs rather than for any legitimate reason. ...

Plaintiffs contend that State Farm, acting through Renfroe and Forensic, deliberately underestimated the amount of wind damage the insured property sustained in order to minimize its liability under the plaintiffs' homeowners policy. While this allegation, if sustained, would support a finding of bad faith, it is not sufficient to support an allegation of fraud. Fraud requires reasonable reliance on a misrepresentation, and the plaintiffs have not relied upon State Farm's evaluation of their claim. Indeed plaintiffs have brought this lawsuit in an effort to establish that State Farm has underestimated the wind damage to the insured property. Although plaintiffs may prevail on the merits of their claims for additional policy benefits and other extracontractual damages, including punitive damages if they establish bad faith on the part of State Farm or its agents, in the absence of any evidence that the plaintiffs relied upon State Farm's damage assessment I can see no basis for a claim of fraud.

Thomas and Pamela McIntosh filed the lawsuit against State Farm after the company refused to pay for most of the damage to their home, which State Farm concluded was caused mostly by flood damage from the storm surge.

State Farm used E.A. Renfroe & Co. to inspect the McIntosh's home, and the couple also alleged that Renfroe aided and abetted State Farm's fraudulent misconduct and that the company breached its duty of loyalty to the plaintiffs. Senter dismissed the aiding and abetting claim as he concluded there was no underlying fraud, and also dismissed the breach of duty claim.


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