In Case You Missed It . . .

Here are a few miscellaneous items of note from the past week:

-In a W.D. Va. social security case, Judge Kiser points out one particularly interesting fact from the ALJ's determination:

The ALJ also noted that Plaintiff did not appear to be in any acute distress
despite the fact that he just drove 72 miles to the hearing without resting and
previously testified that he could only sit for 30 minutes at a time.

That won't engender any sympathy from the court.

- The Fourth Circuit addresses the issue of ripeness in a South Carolina election law case.

- The latest edition of the Harvard Law Review contains a good (and relatively brief) case note on the Supreme Court's decision in Riegel v. Medtronic, Inc.

- Judge Moon (W.D. Va.), in an unpublished decision, addresses the issue of whether a student loan from 1975 was discharged by a bankruptcy in 1983.

Trick or Treat?

Last week, a Massachusetts appeals court addressed an interesting issue in an appeal from a 2001 jury verdict in favor of the plaintiff in a legal malpractice case. The case, Zabin v. Picciotto, as noted by the appeals court, had a "tortuous history" beginning with toxic tort claims filed in 1983 (this related case decided by the First Circuit in January provides additional information on the underlying facts).

The court addressed one of the defendant's arguments on appeal:

As the trial approached the end of October, the jurors asked the judge if he
would allow them to wear costumes on Halloween. After consulting with counsel
for all parties and hearing no objection, the judge allowed the request. The
defendants contend that the presence of jurors in costumes turned the trial into
a circus and denied their rights to due process. With or without the
consent of counsel to the parties, it is regrettable that the trial judge agreed
to the jurors' request. The introduction of Halloween costumes cannot but have
detracted from the seriousness and gravity of formal court proceedings. However,
as to the defendants' claim of a due process violation, the judge did not merely
accommodate the jurors' request; he consulted with counsel for all parties
before doing so, and all counsel agreed. The issue is waived.

In a footnote, the court outlined some of the defendant's other allegations:

The defendants also assert that some of the plaintiffs’ counsel handed out
candy to the jurors. They further claim that, on another occasion, a proposed
“cast list” was circulated for a Hollywood movie version of the trial. The
record reveals no objection to counsel to any party handing out candy to the
jurors or any indication that the “cast list” was circulated to the jury.

Interesting note: the trial court judge is now a member of the appeals court that decided the case.

California Court Finds Name-Brand Manufacturer Liable for Injuries Caused by Generics

Last week, in a published decision, a California District Court of Appeal ruled that the manufacturer of a name-brand drug could be liable for injuries caused by a generic version sold by a different manufacturer in Conte v. Wyeth, Inc.

In Conte, the plaintiff developed a neurological condition, allegedly due to her use of a generic version of Reglan (a drug manufactured and marketed by Wyeth and which is used to treat gastroesophageal reflux disease). The plaintiff, who admitted she only took a generic version that was not manufactured by Wyeth, sued Wyeth on theories of fraud, fraudulent concealment, and negligent misrepresentation (she also sued the generic drug manufacturers and her doctor on other theories). Essentially, her claims were that she was "injuriously overexposed to [the generic] due to their dissemination of false, misleading, and/or incomplete warnings about the drug's side effects."

On appeal, the court reversed the trial court's dismissal of the claims against Wyeth and held as follows:

We hold that the common law duty to use due care owed by a name-brand
prescription drug manufacturer when providing product warnings extends not only
to consumers of its own product, but also to those whose doctors foreseeably
rely on the name-brand manufacturer’s product information when prescribing a
medication, even if the prescription is filled with the generic version of the
prescribed drug.

Essentially, the court relied on foreseeability to support its decision, stating that it was "eminently foreseeable that a physician might prescribe [the generic] in reliance on Wyeth’s representations about Reglan." Accordingly, the court had "no difficulty concluding that Wyeth should reasonably perceive that there could be injurious reliance on its product information by a patient taking [the generic]." Thus, the court concluded, "[a]s the foreseeable risk of physical harm runs to users of both name-brand and generic drugs, so too runs the duty of care."

Additional Notes:
- In its analysis, the court relied on a Fourth Circuit case, Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994).

-Unsurprisingly, commentators have sharply criticized this decision. For example, the Drug and Device Law blog noted that the court utilized the plaintiff's negligent misrepresentation theory "as an end around decades of product liability precedent."

-The court dodged the issue of federal preemption as an "inappropriate use of judicial resources," given the plaintiff's concessions that her doctor did not rely on any representation from the generic drug manufacturers.

-See here for a Law.com article on the case.

Virginia Court of Appeals Addresses Appellate Practice in Recent Case

On Tuesday, in a published opinion, the Virginia Court of Appeals took the opportunity to provide guidance for attorneys in appellate practice in Fadness v. Fadness, a divorce case. As the court stated:

The parties in this case have spent hundreds of thousands of dollars on attorney’s fees, and years in protracted litigation. The massive 6,000 page joint appendix spans 19 separate volumes. The joint appendix’s table of contents alone is 66 pages long, but was of little use in providing guidance to relevant portions of the record. Despite the willingness of the attorneys in this case to file motion after motion in the trial court, they were apparently unwilling to expend the effort required to research several of the issues that they raise in this appeal, thereby preventing them from advancing the interests of their clients by making logical arguments based on legal authority. The “throw everything at the wall and hope something sticks” approach utilized in this appeal is as unappreciated as it is ineffective. If the parties were unable to find legal support for any of their eleven questions presented, or their numerous sub-questions, they should not have included those questions presented in their brief.

Appellate courts are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error. If the parties believed that the circuit court erred, it was their duty to present that error to us with legal authority to support their contention. Because the parties failed to do so, and because that failure is significant, they have waived their right to have these issues reviewed by this Court.

(emphasis added)

Amendments to the Rules of the Supreme Court of Virginia

Last week, the Supreme Court of Virginia released several Rule amendments:

Discovery Rules Amendments: Rules 4:1, 4:4, 4:8, 4:9, 4:9A, and 4:13

For example, a provision has been added to Rule 4:9 to address electronically stored information.

Appeals Rules Amendments: Rules 5:9 and 5A:6

Certification of Foreign Legal Consultants: Rule 1A:7 (this is a new Rule)

All of these changes are effective Jan. 1, 2009.

Election Day: Let the Litigation Begin?

Yesterday, as outlined in this RTD article, Judge Williams (E.D. Va.) rejected the NAACP's request to extend the voting hours of Virginia precincts and to allow paper ballots. According to the article:

U.S. District Judge Richard L. Williams said the fact that the state allows people waiting in line when the polls close at 7 p.m. to vote and that it also allows curbside voting will insure that no blacks are denied the right to vote.
...
He allowed the NAACP to argue its case, but did not hear from the defendants, the State Board of Elections and Gov. Timothy M. Kaine.
Williams also noted that he had cast an absentee ballot at Richmond's City Hall on Friday and had to wait 2½ hours. "It was quite a civics lesson," he said.

However, as the Washington Post points out, the NAACP has vowed to return to court today if needed. Further, the McCain campaign has filed a motion in federal court asking for ten extra days for the state to count military absentee ballots.

These suits are part of a larger trend: an electoral litigation extravaganza. Numerous voter groups, including both campaigns, have enlisted an "army of lawyers" in preparation for today's election (see here for a summary of some of the approximately 34 major lawsuits currently pending that involve the president race).

Even before the election, at least one suit was filed challenging Barack Obama's eligibility to run for President (see here for the court's opinion dismissing the case), along with the numerous suits challenging John McCain's eligibility (see here for one complaint and here for another court's opinion on the issue).

With these legal battles on the horizon, maybe this hypothetical McCain v. Obama Supreme Court case isn't so unrealistic after all...

Supreme Court of Virginia Addresses Admissibility of Evidence of Non-Virginia Statutes

On Friday, the Supreme Court of Virginia addressed the admissibility of evidence of other states’ statutes in Norfolk & Portsmouth Belt Line Railroad Co. v. Wilson. In Wilson, the plaintiff was a conductor for a railroad. While riding along the side of a boxcar, he was struck by an inward-leaning fence post located along the track, injuring his arm. The plaintiff brought a claim against the railroad under the Federal Employers’ Liability Act (45 U.S.C. §§ 51–60), alleging that it breached its duty to inspect and maintain the track and to eliminate dangerous “close clearances.”

At trial, the plaintiff’s expert testified that, although Virginia did not have a statute on the issue, thirty-eight other states adopted “close clearance” laws that would have been violated in this case. In the end, the jury returned a verdict for the plaintiff for $330,000.

The court found that the trial court erred in admitting portions of the plaintiff's expert's testimony. According to the court, “[i]napplicable statutes are, in most circumstances, irrelevant to the proof of the standard of care in a negligence case.” Thus, “[a] statute inapplicable to the case . . . is inadmissible. Any relevance it might have would be substantially outweighed by the prejudicial effect of admitting it.” The court concluded as follows:

Statutory law, as the considered judgment of the elected representatives of the people, properly commands the respect of jurors. Evidence of statutory law that does not apply to the case on trial, but seems to support the position of one party, is likely to be both misleading to the jury and prejudicial to the opposing party. We agree with the courts that have considered the question and hold that inapplicable statutes are inadmissible as proof of the standard of reasonable conduct in a negligence case. For that reason, we will reverse the judgment and remand the case to the circuit court.

The court also rejected the defendant’s assignments of error involving the adequacy of expert disclosures, the foundation for the expert’s opinion, and the admission of evidence that the fence at other points along the tracks was also a “close clearance.”