Articles Posted in U.S. Federal Legislation

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The American Trucking Association is the largest trade association for the truck industry and is the lobbying arm of trucking businesses and companies. It is the largest national trade association for the trucking industry.

The American Trucking Association is pledging to seek passage of a new federal law when the Republicans control both the White House and Congress. This association has tried to block state laws that require additional rest breaks for truckers beyond what the federal rules require.

In other words, the American Truck Association is pushing hard to undo safety transportation regulations.

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When litigation is possible or pending in a federal case, the litigants should take care to instruct those in possession of documents and especially electronically stored information to preserve and prevent loss of such documents. If the litigation has begun, or is reasonably anticipated, lawyers should send a letter by way of email or written notice to the other side to put them on notice that there is a duty of preservation that has been triggered. They should also describe the electronically stored information believed to be relevant in a case that should be preserved.

The newly amended Rule 37(e) authorizes what measures the courts can use if the electronic information that should have been preserved has been destroyed or lost.

Amended Rule 37(e) provides:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

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Four years ago, Microsoft was sued by a technology company for patent infringement. The Toronto-based company, i4i, won its patent lawsuit against the computer giant and were to receive a payment of $290 million for Microsoft’s wrongdoing. However, the payment by Microsoft had been held up by the appeals process Microsoft was engaged in to try and reverse the large settlement.

The Supreme Court recently issued its decision, affirming the lower court’s ruling in Microsoft Corp v. i4i Limited Partnership, 10-290. The main issue before the Court was the level of proof required. In patent lawsuits, courts assume that the patent, in this case held by i4i, is valid. Therefore, the burden of proof lies with the entity accused of violating that patent, which in this case is Microsoft.

The Canadian company, i4i, accused Microsoft of using technology developed by i4i when creating Word 2003 and Word 2007. Specifically, i4i stated that Microsoft has infringed on its patent setting out a new and improved method for editing documents. In the original jury trial, Microsoft was found guilty of willfully infringing on i4i’s patent and was ordered to pay $290 million to i4i and discontinue versions of Microsoft Word containing i4i’s technology.

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Northern District of Illinois Federal Judge Ruben Castillo dismissed the whistle-blower lawsuit brought by Robert S. Goldberg, M.D. against Rush University Medical Center, Midwest Orthopaedics at Rush, LLC and other named orthopedic surgeons under the provisions of the False Claims Act, 31 U.S.C. §3727 et seq. The lawsuit,Robert S. Goldberg, M.D. and June Beecham v. Rush University Medical Center, et al., 04-CV-04584, was brought in the federal court by Dr. Goldberg claiming that Rush University Medical Center, along with the orthopedic surgeons and their physicians group, had been overbilling Medicare.

Chicago medical malpractice attorney Robert Kreisman was interviewed by The Chicago Tribune’s Melissa Harris in an attempt to shed some light on the judge’s decision in Goldberg. While Illinois lawsuits involving doctors and hospitals typically are regarding medical negligence that has occurred, in the case of Goldberg, the Illinois lawsuit involved accusations made by one of Rush’s orthopedic surgeons of fraudulent activities committed against the government. These types of case, where a plaintiff brings forth an action because he or she believes that the government has been defrauded, are called whistleblower cases.

The fraud at issue in Goldberg was that a group of orthopedic surgeons at Rush University Medical Center were violating Medicare billing requirements when they overbooked surgeries and through their heavy reliance on residents to perform parts or all of the surgeries. Rush is a teaching hospital and is compensated for training its residents, not for allowing its residents to perform unsupervised surgical procedures.

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The United States Supreme Court is expected to hear the case of Wyeth v. Levine this November which could have far reaching implications as to pharmaceutical litigation cases against drug companies, including those in Illinois and the Chicago area. The legal advice comes from top doctors and editors of the New England Journal of Medicine who have submitted a friend-of-the-court brief. The doctors state that the Food and Drug Administration (FDA) “is in no position” to guarantee drug safety. The doctors went on to to say that lawsuits can serve as “a vital deterrent” and protect consumers if drug companies don’t disclose risks.

The underlying case is about Diana Levine, a Vermont guitarist, who lost her right arm below the elbow after being injected with the drug Phenergen, a medicine used mostly for nausea. She sued the drug manufacturer, Wyeth, contending that the drug company had a duty to warn consumers that injections, like the one she experienced, could have devastating consequences. The state courts in Vermont agreed with Ms. Levine in awarding her nearly $7 million.

But Wyeth appealed stating that it was protected from such lawsuits. It argued that the FDA’s judgment could not in effect be overruled by a state court. FDA scientists had weighed the risk and benefits of Phenergan in approving the drug’s safety literature as a guide for doctors. The FDA was aware of the risks associated with injecting some forms of Phenergan, but the label did not specifically warn about the technique used for this patient.

It has been commented before that the FDA has been the “gold standard” in drug evaluation. The New England Journal of Medicine editors warned the justices to be skeptical in taking such a view now.

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The American Association for Justice (AAJ) is lobbying for the rights of consumers injured by defective medical devices. In Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that manufacturers of medical products weren’t liable for damages if their device received premarket FDA approval (see 03/01/08 post for more details). It is up to Congress to restore the rights of the consumer.

The Medical Device Safety Act of 2008 is set to mimic the 1976 Medical Device Act (MDA), which is what the U.S. Supreme Court relied on for its decision in Riegel v. Medtronic, Inc. The new act seeks to add the following language to the section titled “No Effect on Liability Under State Law”:

Nothing in this section shall be construed to modify or otherwise effect any action for damages or the liability of any person under the law of any State.

By adding this language the new Act ensures that civil suits can be filed under state law even if the device was approved by the FDA.

In order to ensure that the new act protects the rights of consumers the AAJ is actively lobbying, uniting attorneys from across the country in their common goal. If you, too, feel strongly about this bill it is vital that you contact your member of Congress and voice your support for the bill.

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