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Federal judge rules California lethal injection protocol
Court Feed News | 2006/12/16 13:43

A federal judge issued a memorandum of intended decision Friday, concluding that California's lethal injection procedure creates "an undue and unnecessary risk" of cruel and unusual punishment in violation of the Eighth Amendment of the US Constitution. The memorandum came in the case of condemned killer Michael Morales, who argued that it was not certain that the chemical cocktail to be used in his lethal injection would not prevent him from experiencing extreme pain during the process.

Morales' execution was postponed indefinitely in February after a court ruling that medical professionals must monitor executions by lethal injection to be sure that the inmate feels no pain. The ruling imposed a virtual moratorium on executions in California as anesthesiologists refused to take part in the execution.

In his memorandum Friday, US District Judge Jeremy Fogel wrote that:

At the present time, ... Defendants' implementation of California's lethal-injection protocol lacks both reliability and transparency. In light of the substantial questions raised by the records of previous executions, Defendants' actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution.

Fogel set a 30-day deadline for the state to determine whether the lethal injection protocol would be modified.

Merck Wins Federal VIOXX Product Liability Case
Court Feed News | 2006/12/15 17:18

A federal jury in New Orleans returned a verdict in favor of pharmaceutical giant Merck Wednesday, concluding that the company did not fail to adequately warn a Tennessee man's doctors about risks associated with the painkiller Vioxx. Anthony Dedrick suffered a heart attack after taking Vioxx, and his lawyers argued that Merck failed to sufficiently warn his doctors about the risks of taking the drug and that the lack of a warning caused the heart attacks. Both claims were rejected by the jury.

"The jury determined that Merck acted appropriately in the development and marketing of VIOXX and that VIOXX did not substantially contribute to Mr. Dedrick's heart attack," said Phil Beck, of the law firm of Bartlit Beck, Merck's lead trial lawyer in the case, Dedrick v. Merck.

"He had multiple risk factors for a heart attack including a family history of cardiac problems, heavy smoking for many years and he had high blood pressure, high cholesterol and diabetes," Mr. Beck said. "In addition, he had significant atherosclerosis before he began taking VIOXX. Unfortunately, Mr. Dedrick would have suffered a heart attack whether he was taking VIOXX or not."

U.S. District Court Judge Eldon E. Fallon of the Eastern District of Louisiana, who is overseeing all of the federal court litigation, presided over the trial.

Merck faces thousands of lawsuits over the drug, which was pulled from the market in September 2004 after a study showed that it could double the risk of heart attack or stroke if taken for more than 18 months. This is the fifth federal trial to reach a verdict; Merck has won four of those cases, with the fifth decided in favor of the plaintiff. A federal judge, however, threw out the $50 million jury verdict in the Merck loss as "grossly excessive" and ordered a new trial to determine damages.

Merck won the first case, Plunkett v. Merck, in February. The damages portion of the verdict in favor of the plaintiff in the second federal case, Barnett v. Merck, was overturned by Judge Fallon. Merck won the third case, Smith v. Merck, in September and the fourth case, Mason v. Merck, in November. Last month, US District Judge Eldon Fallon, who is responsible for co-ordinating pre-trial procedures in the federal cases, rejected a bid to have all federal lawsuits against Merck brought in connection with Vioxx consolidated in a single national class action against the company.

Critics outraged by 34-minute execution in Florida
Legal Career News | 2006/12/15 17:17

One day after Florida death row inmate Angel Diaz endured a 34-minute-long - and apparently painful - execution, death penalty critics filed papers with the Florida Supreme Court seeking to once again halt the death penalty in the state. Petitioners, including numerous people currently on Florida’s death row roster, filed an emergency petition Thursday with the court asking it to exercise its All Writs jurisdiction and declare that Florida’s lethal injections procedures violate the Eighth Amendment of the US Constitution.

Angel Diaz was executed Wednesday for the 1979 murder of a Miami strip club manager. Officials had to administer the sodium pentothal, pancuronium bromide, and potassium chloride cocktail twice, during which time witnesses claim he grimaced, contorted, and gasped for breath. Officials claim that Diaz had a liver condition that slowed the absorption of the drugs, but that he was unconscious and experienced no pain. The US Supreme Court reviewed Florida’s lethal injection procedure earlier this year when they stayed the execution of Clarence Hill, who was ultimately executed in September. 

Governor Jeb Bush asked Corrections Secretary James McDonough to undertake a thorough review of the execution, including an autopsy and interviews with those in the death chamber. Diaz' lawyer filed a lawsuit Thursday on behalf of death row inmates, asking the Florida Supreme Court to rule that the state's lethal injection procedure is unconstitutional.

New York City Public School Employee Pleads Guilty
Court Feed News | 2006/12/15 16:37

A New York City Public School custodial engineer pleaded guilty today to conspiring to defraud the New York City Department of Education and its predecessor, the Board of Education of the City of New York (collectively NYCDOE), the Department of Justice announced.

Kenneth Loeffler, a custodial engineer and resident of Valley Stream, N.Y., pleaded guilty in U.S. District Court in Manhattan to participating in a conspiracy to commit mail fraud in connection with a kickback scheme used to defraud NYCDOE. Beginning in approximately July 1997 and continuing until at least June 2003, Loeffler received approximately $6,000 in kickbacks in exchange for allocating contracts for industrial cleaning and maintenance supplies to companies associated with his two unnamed co-conspirators. These kickbacks were paid through cash, dinners and tickets to sporting and theater events. “The Antitrust Division will prosecute anyone who subverts the competitive process, particularly where public monies are involved,” said Thomas O. Barnett, Assistant Attorney General in charge of the Department’s Antitrust Division.

As a NYCDOE custodian, Loeffler was responsible for purchasing goods and services necessary for the maintenance of NYCDOE schools to which he was assigned. In July 1999, NYCDOE began requiring its custodians to engage in competitive bidding before making purchases or awarding contracts worth more than $250 to vendors who were not on NYCDOE’s list of approved vendors and to award contracts to the bidder who provided the “maximum quality for the minimum price.” Also under the competitive bidding policy, employees are required to submit bid summary sheets for each purchase and to get written bids for purchases or contracts worth more than $5,000.

After NYCDOE’s implementation of the competitive bidding policy, Loeffler accepted kickbacks in exchange for ensuring that he would not invite potential competitors who were not co-conspirators to bid on contracts awarded by NYCDOE schools for industrial cleaning and maintenance supplies, the Department said. Also, the Department said that some of the kickbacks Loeffler received were the result of his participation in a phony invoice scheme whereby NYCDOE paid for supplies delivered only in part or never delivered at all.

Today’s case is the second to arise out of an ongoing investigation of fraud and bidding irregularities in the award of contracts for industrial cleaning and maintenance supplies being conducted by the Antitrust Division, the Office of the Special Commissioner of Investigation for the New York City School District and the Federal Bureau of Investigation. In November 2006, a former NYCDOE custodial engineer pleaded guilty to conspiracy charges in connection with participating in a similar kickback scheme.

Loeffler is charged with violating 18 U.S.C. § 371, which carries a maximum penalty of five years of imprisonment and a $250,000 fine. The maximum fine may be increased to twice the gain derived from the crime or twice the loss suffered by the victim, if either of those amounts exceeds the statutory maximum fine.

Antitrust Division Announces Merger Review
U.S. Legal News | 2006/12/15 10:34

WASHINGTON-- The Antitrust Division announced today that it is amending its 2001 Merger Review Process Initiative in order to further streamline the merger investigation process to improve the efficiency of the Division's investigations while reducing the cost, time and burdens faced by parties to transactions that are reviewed by the Division.

"Efficient merger enforcement" reaching the right answers as quickly as possible with the least burdens necessary  "is one of our top priorities," said Thomas O. Barnett, Assistant Attorney General in charge of the Department's Antitrust Division. "The amendments to the Division's already successful Merger Review Process Initiative are part of our ongoing efforts to reduce enforcement burdens, while at the same time preserve our ability to conduct thorough investigations and protect consumers from anticompetitive transactions."

The goal of the 2001 Merger Review Process Initiative was to help the Division identify critical legal, factual and economic issues regarding proposed mergers more quickly; facilitate more efficient and more focused investigative discovery; and provide for an effective process for the evaluation of evidence.

The amended initiative is the culmination of an extensive internal review of the Division's best practices for investigating mergers and acquisitions, as well as an analysis of the progress the Division has made since first launching its initiative.

The amendments announced today include a voluntary option that will enable companies to reduce significantly the duration and cost of merger investigations. The new option would limit the document search required by a Division information request, known as a "second request," to certain central files and a targeted list of 30 employees whose files must be searched for responsive documents. This option will be made available to parties to most transactions that are reviewed by the Division, and will be conditioned on certain timing and procedural agreements that, among other things, protect the Division's ability to obtain appropriate discovery should it decide to challenge the deal in federal district court.

The Division is also changing its model second request to reduce compliance burdens further. For example, the default search period, which is currently three to four years depending on when the request is issued, will be reduced to two years prior to the date of the request's issuance. The changes also include other limitations that will reduce the volume of materials that companies must collect, review, and produce in response to a second request.

The 2001 initiative enabled the Division to deploy its investigative resources more efficiently and effectively and reduce the investigative burden placed on parties to transactions that are reviewed by the Division. Largely as a result of the initiative, in an increasing number of matters the Division has been able to focus its investigations on discrete dispositive issues. The result has been an improvement in how quickly the Division is able to close investigations into transactions that prove not to be anticompetitive, which enables the Division to focus its resources more effectively on those transactions that do threaten competition. The number of days that pass from the opening of a preliminary investigation to the early termination or closing of the investigation, on average, has fallen from about 93 days to 57 days since the initiative was first announced.

US Senator challenges war on terror methods
Legal Career News | 2006/12/14 15:46

Vermont Senator Patrick Leahy Wednesday laid out an ambitious agenda for the reshuffled Senate Judiciary Committee he will chair when the Democratic-controlled US Congress begins its new session in January. Speaking at Georgetown University Law Center in Washington, Leahy, who will take over from current Republican chairman Sen. Arlen Specter (R-PA), promised what he called "an agenda of restoration, repair and renewal: Restoration of constitutional values and the rights of ordinary Americans. Repair of a broken oversight process and the return of accountability. And renewal of the public’s right to know."

The veteran senator from Vermont said that oversight of the FBI and the Department of Justice would be among his top priorities in an effort to restore checks and balances to a government dominated by executive "unilaterialism." In the process, he said he wanted to give more effective protection to American's privacy rights in the face of security-driven government data collection and data-mining, to support the independence of the judiciary, and restore fundamental protections for human rights that had been most recently eroded in the Military Commissions Act, which he labeled a "sweeping, ill-conceived law" that in its elimination of habeas corpus protections for alien "enemy combatants" had "eliminated basic legal and human rights for 12 million lawful permanent residents who live and work among us, to say nothing of the millions of other legal immigrants and visitors whom we welcome to our shores each year."

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