California Appeals Court Protects Outside Counsel’s Factual Investigation as Privileged

City of Petaluma

City of Petaluma

In early June, a California court of appeal held in City of Petaluma v. Waters that the report resulting from a fact-finding investigation conducted by outside counsel for the City of Petaluma’s (the City) City Attorney was protected by attorney-client privilege and therefore undiscoverable.  The holding is notable because the court refused to read the privilege so narrowly as to only protect legal opinions and would not further encroach upon the outside-counsel relationship. Continue reading

Will Illinois State AG’s Action Put an End to Unabashed Abuse of State’s False Claims Law?

package deliveryThis past May, a Cook County Associate Judge dismissed 201 Illinois False Claims Act (IFCA) cases at the request of Illinois Attorney General Lisa Madigan. The state’s action is an encouraging, albeit overdue, development in a long-running legal saga where one enterprising lawyer has harnessed the state’s enforcement power to pursue personal financial gain that provides little or no benefit to the public.

Much like its federal equivalent, the IFCA allows private citizens (relators) to file fraud claims on behalf of the state. The fraud must be based on a false claim, typically a violation of a law or regulation. If successful, relators can collect up to 30% of the award plus attorneys’ fees. Continue reading

When Expert Testimony “Fits” with Causation

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

When there are multiple cumulative causes of an injury, an expert witness’s testimony attributing specific causation to one of those causes must employ a standard that at least crosses the threshold necessary to establish causation under the law. Otherwise, the testimony is unhelpful to the jurors—indeed, it may affirmatively mislead them. This principle was front and center in a decision released by the Georgia Supreme Court on July 5. In Scapa Dryer Fabrics v. Knight, the court held that an expert witness’s testimony must “fit” the pertinent causation inquiry for asbestos cases under Georgia state law.

In the late 1960s and early 1970s, the plaintiff worked at defendant Scapa Dryer Fabrics’ manufacturing facility as an independent contractor. During that time, the pipes and boilers in the defendant’s manufacturing facility were insulated with material containing asbestos, and the defendant used yarn containing asbestos to make textiles. Continue reading

Federal Circuit Decision Final Word on Jurisdiction for Hatch-Waxman Act Patent Suits?

federal circuitOn June 20, 2016, the US Court of Appeals for the Federal Circuit declined to rehear en banc a panel’s decision in Acorda Therapeutics v. Mylan Pharmaceuticals from this past March.  The panel in Acorda ruled that when a generic drug manufacturer files with the FDA an Abbreviated New Drug Application (ANDA) for approval to market a generic drug, that manufacturer is subject to personal jurisdiction in any jurisdiction in which it plans to direct sales of that drug if and once FDA approves its ANDA.  Since then, three district courts in four separate decisions have applied Acorda to deny a generic manufacturer’s Federal Rule of Civil Procedure 12(b)(2) motion based, at least in large part, on the ANDA filing.   Continue reading

Pfizer False Claims Victory May Embolden Other Pharma Defendants

By Todd Hobbs, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

2nd CircuitIn May, the United States Court of Appeals for the Second Circuit upheld the dismissal of a qui tam lawsuit in U.S. ex rel. Polansky v. Pfizer, Inc.  Polansky, a former Pfizer Medical Director, brought suit under the federal False Claims Act (FCA) on behalf of the U.S. government. He alleged that Pfizer submitted a false claim for Medicare payment by illegally marketing its product for an off-label use.  The Second Circuit held that the complaint at issue failed to allege any off-label promotion and affirmed the district court’s dismissal on that basis.  Federal appeals courts have not considered many FCA lawsuits related to off-label marketing allegations, making the Polansky result worth closer review.

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North Carolina Supreme Court Grudgingly Adopts “Daubert” Standard for Expert Evidence Review

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Five years ago, the North Carolina General Assembly amended the North Carolina Rules of Evidence to mirror the Federal Rules of Evidence’s approach to expert testimony. In North Carolina v. McGrady, __ S.E.2d __, 2016 WL 3221096 (June 10, 2016), the Supreme Court of North Carolina finally confirmed that, as a result of the General Assembly’s adoption of language that mirrors that of the federal rules, the Daubert standard now governs the admission of expert testimony under state law.

The US Supreme Court first adopted the Daubert standard in 1993, interpreting Federal Rule of Evidence 702 to bestow a “gatekeeping role” on district courts. Shortly after Daubert, the Court elaborated on this standard in General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael. And in 2000, the Supreme Court adopted amendments to Rule 702 that, while not expressly mentioning Daubert in their text, were clearly intended to formally embed the Daubert standard in the Federal Rules of Evidence. Continue reading

Side-stepping the Issue: Federal Judge Makes Unprecedented Move in Rejecting Google’s First Amendment Defense

first-amendmentBy Erin Garza, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

Business success in America not only generates increased dividends for shareholders and opportunities for consumers, but it also, regrettably, attracts litigation. Take, for instance, the constant flow of lawsuits search-engine companies face from individuals and organizations unhappy with their placement in search results. Search-engine businesses have consistently prevailed in such suits, arguing that the First Amendment protects how they design and apply their search algorithms.

However, a May 12, 2016 federal district court decision, which rejected Google’s motion to dismiss and allowed a search-engine optimization firm’s lawsuit to proceed, departed from this positive First Amendment trend. Was the decision in E-Ventures Worldwide, LLC v. Google an aberration or has this plaintiff found a creative new way to avoid the First Amendment defense? Continue reading