California Supreme Court adopts “delayed discovery” rule to extend the statute of limitations in medical products claim.

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Brandi Fox filed a medical malpractice claim arising out of severe complications from gastric bypass surgery. During the course of discovery, the plaintiff learned that one of the devices had failed during the procedure, and attempted to add the manufacturer. The court applied a “delayed-discovery rule” under which the statute of limitations does not begin to run on a subsequent …

Maryland court finds that PPI can form the basis of a breach of express warranty claim.

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Ordinarily, under Maryland Law, the pharmacist-patient relationship does not give rise to a duty to warn of potential adverse consequences of prescribed drugs. However, when a pharmacy chooses to develop and distribute a Patient Package Insert (“PPI”), the representations can form the basis of an express warranty. (In addition, the court rejected claims of preemption by the FDA.) Rite Aid …

Manufacturer of oil drum installed in a production line could not invoke statute of repose relating to improvements to real property.

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Plaintiff was injured in 2001 by an oil drum that had been installed in 1987. The district court found that the base coating line was an improvement to real property, and that the manufacturer was thus entitled to Oklahoma’s 10-year statute of repose. The Tenth Circuit reversed, noting a general distinction between pre-fabricated mass-produced products, on the one hand, and …

District Court rejects Pfizer claims of preemption in Zoloft suicide case.

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The survivor of a man who committed suicide sued Pfizer alleging its drug Zoloft contributed to his death. Pfizer argued that the failure-to-warn claims were preempted. Rejecting the manufacturer’s claims of express preemption, Judge Rosenbaum observed that “FDA regulations explicitly permitted defendant to unilaterally strengthen its warning label at any time without regulatory pre-approval. 21 C.F.R. §§ 314.70(c)(6)(iii)(A). This particular …

Ninth Circuit holds that website intake from potential clients is not subject to disclosure.

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Granting a mandamus in an action where attorneys were compelled to turn over initial responses by clients on the Internet in suit against the makers of Paxil, the court re-affirmed the principle that the attorney-client privilege extends to initial consultations, even where the attorney and client acknowledge that no formal attorney-client relationship has been established. “Potential clients must be able …

High Court rejects preemption of state law tort claims under FIFRA.

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Peanut farmers brought claims against Dow alleging that its Strongarm pesticide stunted the growth of their peanut plants, despite the EPA-approved label which originally advertised that “Use of Strongarm is recommended in all places where peanuts are grown.” Apparently, after the plaintiffs first complained, Dow investigated, the label was subsequently changed (with approval by the EPA) to advise purchasers not …

U.S. Fifth Circuit reverses verdict under the LPLA where plaintiff failed to prove – by direct evidence, with direct and specific expert testimony – that his injuries would have been more severe had the defendant’s airbag deployed in collision.

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Driver whose head hit steering wheel during collision successfully established breach of express warranty under the LPLA. The court, however, reversed the jury award on the basis that plaintiff failed to satisfy the “proximate causation” requirement that “he sustained more severe injuries than he would have received if the air bag had deployed.” Curiously, the Court found expert testimony that …

Third Circuit rejects Milofsky and concludes that participants in 401(k) plan who suffered losses may bring suit under Section 502(a)(2).

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Participants in the Schering-Plough Corporation 401(k) Plan brought suit against fiduciaries on behalf of the Savings Plan and all participants whose accounts included investments in Schering stock, (alleging that the defendants breached their fiduciary duties of loyalty, prudence and due care by continuing to offer the Company Stock Fund when they knew that Schering’s stock price was artificially inflated). The …

District Court allows suit for breach of fiduciary duty brought by plan participant against plan’s PBM to proceed.

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Robert Moeckel, a participant in the John Morrell & Co. Employee Benefit Plan, brought suit for breach of fiduciary duty against Caremark, the plan’s Pharmacy Benefits Manager (“PBM”). The suit seeks statutory relief on behalf of the Plan, pursuant to Section 502(a)(2), as well as injunctive and equitable relief for the Plan and its participants who paid percentage co-payments, pursuant …

Equitable set-off of attorneys fees against pension benefits of participant asserting unsuccessful claim under ERISA Section 502(a)(1).

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Plaintiff brought a claim for an increase in his disability benefits. The claim was denied, and attorneys fees were assessed against the plaintiff. In addition, the court granted an equitable set-off against future benefits to ensure payment of the attorneys’ fees. The Third Circuit reversed. “While it may be argued that plan participants, like Martorana, who bring suits which are …