Even The FDA Is Against Complete Immunity Preemption?

One of the hottest topics in the personal injury arena right now is preemption. Generally, the argument for preemption is that if a product complies with federal regulations relating to the safety of that product  (even if the regulations are not adequate) then manufacturers should be completely immune from state tort lawsuits based on defects on that product because the federal law trumps state law.

Next Monday, the U.S. Supreme Court will hear the case of Wyeth v. Levine. In that case, the drug manufacturer and the U.S. Food and Drug Administration, with the consent of the Bush Administration, will argue that federal drug-approval and warning-label standards should trump stricter state law liability claims.  The plaintiff won a multi-million judgment after arguing that the drug she was using didn’t warn that gangrene was a side effect.  (The plaintiff, a musician, eventually lost her arm to gangrene.)  The manufacturer argues that they are entitled to complete immunity because the federal regulations don’t require them to warn of gangrene.

Prior to the Bush Administration, the FDA had taken the position that state tort laws worked in concert with regulations and provided an extra protection for consumers. The effort for preemption, not just with the FDA, but with almost all regulatory agencies, has been pushed by the Bush Administration as a long-term form of tort reform. The Bush Administration has urged the adoption of over 50 regulations that encourage preemption.

Yesterday, several FDA documents were released showing that even senior members of the FDA knew the dangers of preemption. John Jenkins, the top official in the FDA drug approval section, wrote in 2003:

Much of the argument for why we are proposing to invoke pre-emption seems to be based on a false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis.

The report that included the preemption memos concludes:

FDA has an obligation to ensure the safety and effectiveness of drugs. In this case, however, the internal documents indicate that the Bush Administration weakened important drug safety regulations to shield manufacturers from liability. This is a serious abuse of the agency’s publich health authorities.

One other story notes that the memos were forwarded to the FDA’s chief counsel, who is now the general counsel for pharmaceutical giant Glaxo-Smith-Kline.

To read more on preemption, check out:

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Bush’s Legacy In The Federal Judiciary

This morning’s New York Times had a discouraging piece detailing President Bush’s judicial appointees.  In the article, President Bush noted that “he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments.”

What does that mean to our clients?  While there are many Bush appointees that are good judges, including at least one judge in the Austin Division, Bush’s appointees “have been moer likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations.  They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.”

We don’t see it so much in the trial courts here, which are very good.  But it seems that ruling after ruling comes down from the Fifth Circuit, which governs Texas, that make helping people that much more difficult.

The judiciary is also an important factor in the upcoming presidential election.  As the article continues:

An Obama victory could roll back the Republican advantage on the appeals courts and even create a Democratic majority by 2013, according to a study of potential vacancies by Russell Wheeler of the Brookings Institution. But if Mr. McCain wins, Republicans could achieve commanding majorities on all 13 circuits.

Regardless of what happens, we’ll still be out there fighting the battles for the public’s rights.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Arbitration Is Good Enough For You, But Not Businesses

Earlier this week, Jonathon Glater of the New York Times had an article that discussed how businesses use arbitration agreements.  Apparently, at a time when businesses are becoming more and more aggressive about using arbitration clauses in their contracts with consumers, they still aren’t using them in business to business contracts.

The article is based on a study performed by law professors Theodore Eisenberg (Cornell University School of Law), Geoffrey Miller (NYU School of Law), and Emily Sherwin (Cornell University School of Law).  The study was updated this summer (we had a previous post about the study’s original release last year).

The study found that business included mandatory arbitration clauses in 75 percent of consumer agreements but in just 24 percent of contracts over all. The inclusion rate was up significantly from prior studies.  From the article:

Companies say that arbitration is “a fair and cost-saving process,” he [Professor Eisenberg] continued. “If they believe that is true across the board, why don’t they insist on it when they contract with each other?”

Our thoughts are available in our prior post.  The one thing that stood out in the new study was businesses use of arbitration clauses to try and kill class actions.  The article notes:

Every consumer contract with an arbitration clause also waived possible group, or class, arbitration.

“I believe they’re really using arbitration as a way of avoiding class action litigation,” said Theodore Eisenberg, a law professor at Cornell. Because it is not worth it to a single upset consumer to sue a big company, he said, “the only thing those companies fear is your having a plaintiffs’ lawyer aggregate you and people like you into a class action.”

As we have continuously stated, we think arbitration is appropriate in many cases, but it’s difficult to know what cases are appropriate for arbitration at the time the contracts are entered into.  That is particularly true in consumer cases, where consumers are asked to agree to arbitration rules that they do not understand.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Some Problems With Judicial Elections

Yesterday was the start of early voting in Texas. While the presidential campaign gets all the hype, three Texas Supreme Court justices are up for re-election, and the election highlights some of the problems with judicial elections.

The first is campaign contributions. Earlier this month, the non-profit Texans for Public Justice issued a report on “courtroom contributions” to Supreme Court candidates. The report had startling findings. The three incumbents have raised $1.6 million between them from January 2007 and June 2008. Sixty-five percent of those donations came from parties, lawyers or other people that had cases in front of the court. Justice Dale Wainwright had a whopping 71 percent of his contributions came from these “courtroom contributors.”

Unfortunately, the Democratic challengers were no better. During the same time period surveyed, the three Democratic challengers collected $722,167, with 69 percent of that money from lawyers and litigants who had recent business before the Supreme Court.

The stock response is that attorneys with business before the state’s various courts are the ones that know the judges, are interested in the outcome, and have an incentive to donate. Maybe so, but something appears wrong with a system where the bulk of the contributions come from people business before the state’s courts.

A second problem is that it’s almost impossible to be an informed voter on issues. I can’t tell you the number of emails I receive asking for recommendations on judicial elections. I’m informed on the judicial elections that affect my practice, but even as a lawyer, I don’t have a clue about some of the judges running for the various criminal courts. If politically active lawyers don’t know, how is the general public supposed to know about judges?

I don’t really have a better suggestion for a better system at this point, but I definitely think it’s worth looking into.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

More Drama In The Third Court of Appeals

A few weeks ago, I wrote about a dispute that was coming to a head in the Texas Third Court of Appeals, which is housed in Austin.  The dispute involved the criminal case against Tom Delay and his business associates.  The Third Court issued a ruling in the criminal case that was very favorable to Delay and the defendants.

After the decision was handed down, Travis County District Attorney Ronnie Earle filed a Motion to Recuse, asking one of the judges to be removed.  The judge had formerly represented Texans for Lawsuit Reform, which involved many of the same players as the criminal case, and had allegedly made disparaging remarks about a civil suit that was based on the similar facts as the criminal case that was at issue.  Based on that history, Earle asked that the judge recuse himself or be removed from the case.

Last week, the Third Court handed down an order denying the motion.  The order was issued without the benefit of an opinion.  So the claim is over, right?  Not so.

Yesterday, the Austin American Statesman, had an article that contained allegations from Justice Jan Patterson, one of the justices on the Third Court, that she wanted to issue a dissenting opinion but that Chief Justice Ken Law had ordered the clerk of the court not to accept the dissent.  Justice Patterson filed a petition with the Texas Supreme Court seeking an order requiring the release of her dissenting opinion.

Today, the Statesman had another article and Justice Law claims that he has no problem releasing the dissent, but that Justice Patterson failed to circulate the order per court rules.  (Justice Patterson has written plenty of dissenting opinions so it’s not clear to me why the rules would be an issue now, but not in the other instances).

I’m not sure how this story will play out, but it is interesting because you normally don’t get this quibbling between justices in the press.

It is also interesting because Chief Justice Law is up for re-election this year, and has a tough race against Woodie Jones, who was formerly a judge on the Third Court.  In a State Bar of Texas poll of attorneys in the Third District, Judge Jones received over 85% of the vote.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Blog Action Day: Poverty

Today is Blog Action Day, an event where bloggers unite on one day to discuss a single issue. This year’s topic is poverty, which is fitting since I was asked to participate in this event by my friend Kerry Qunell at the Capital Area Food Bank.

I thought I’d take a little different spin and talk about Volunteer Legal Services of Central Texas. VLS is one of two local non-profits that focus on providing legal services to low-income people in the Central Texas area.  It provides clinics to answer legal questions and matches up local volunteer attorneys with low-income clients that need representation in different matters.  In 2007, attorneys volunteering through VLS provided 16,096 hours of free legal services, valued at $4,426,488 in uncharged fees, to benefit 4,381 people.

We’re big supporters of VLS.  Mark has served on its board of directors, and last year, we were the proud recipient of the VLS Judge Joe Hart Award, which is “presented annually to a law firm that has demonstrated the integrity and dedication to legal services to the poor exemplified by Mr. Hart throughout his legal and judicial career.”

Thanks go out to all of those who support VLS and the other organizations featured in today’s Blog Action Day.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Federal Judges Under Investigation

I don’t have time to really comment on it, but Lise Olsen of the Houston Chronicle has a story in today’s paper about the surprising number of federal judges under investigation.  Led by Texas’s own Judge Kent, the story reads like a soap opera — we’ve got allegations involving nude photos, escort services, and accepting cash from lawyers.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Arbitration Is Good Enough For You, But Not Businesses

Earlier this week, Jonathon Glater of the New York Times had an article that discussed how businesses use arbitration agreements.  Apparently, at a time when businesses are becoming more and more aggressive about using arbitration clauses in their contracts with consumers, they still aren’t using them in business to business contracts.

The article is based on a study performed by law professors Theodore Eisenberg (Cornell University School of Law), Geoffrey Miller (NYU School of Law), and Emily Sherwin (Cornell University School of Law).  The study was updated this summer (we had a previous post about the study’s original release last year).

The study found that business included mandatory arbitration clauses in 75 percent of consumer agreements but in just 24 percent of contracts over all. The inclusion rate was up significantly from prior studies.  From the article:

Companies say that arbitration is “a fair and cost-saving process,” he [Professor Eisenberg] continued. “If they believe that is true across the board, why don’t they insist on it when they contract with each other?”

Our thoughts are available in our prior post.  The one thing that stood out in the new study was businesses use of arbitration clauses to try and kill class actions.  The article notes:

Every consumer contract with an arbitration clause also waived possible group, or class, arbitration.

“I believe they’re really using arbitration as a way of avoiding class action litigation,” said Theodore Eisenberg, a law professor at Cornell. Because it is not worth it to a single upset consumer to sue a big company, he said, “the only thing those companies fear is your having a plaintiffs’ lawyer aggregate you and people like you into a class action.”

As we have continuously stated, we think arbitration is appropriate in many cases, but it’s difficult to know what cases are appropriate for arbitration at the time the contracts are entered into.  That is particularly true in consumer cases, where consumers are asked to agree to arbitration rules that they do not understand.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Legal Malpractice Case Goes To The Jury

We had previously written about Purolite Corporation’s legal malpractice claim against mega-firm Morgan, Lewis & Bockius. The case stems from the firm’s advice on whether Purolite subsidiaries could continue to do business with Cuban companies. Now, after more than two weeks of trial, the case is going to the jury. And the entire case may come down to whether Purolite filed its legal malpractice claim within the statute of limitations.

The limitations question is interesting. The company and its owners were the subject of criminal investigations about the transactions for years. But during those investigations, the firm allegedly continued to represent the company and the brothers and continued to advise the company and the brothers that the transactions were acceptable. The plaintiffs claimed that they didn’t discover the advice was wrong until a judge finally rejected their defenses.

It is hard to determine how the case would turn out in Texas, which has a tolling provision for litigation that says the statute of limitations does not begin to run as long as the attorneys continue to represent the client in the litigation. The rationale behind the rule is that the client should not be forced to take inconsistent positions in the underlying case and in the legal malpractice case. As long as the underlying case is ongoing, the client must take the position that the client’s contentions are correct and that the client should prevail. Forcing the client to sue his or her attorney at the same time, where the client would claim that the attorney’s arguments are wrong, could force the client to take inconsistent positions. I have never researched whether such a tolling would occur if the lawyer continues to represent the client in a criminal investigation, but the rationale would certainly apply in the criminal context as well.

Posted on: October 9, 2008 | Tagged

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


Law Firm Website by CLM Grow