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Medical Device Ruling Redraws Lines on Lawsuits
Lawyer Blog News | 2008/02/22 12:56

The Supreme Court’s decision Wednesday protecting many types of medical device makers from personal injury lawsuits began rippling through the courts and law offices almost immediately.

Hours after the decision in the case, Riegel v. Medtronic, was announced, lawyers involved in a group of Florida state court cases related to Johnson & Johnson’s drug-coated Cypher heart stent received an e-mail message from Judge Mary Barzee Flores asking for briefs on whether the lawsuits should be allowed to continue.

And lawyers for patients with injuries they attribute to other devices like heart valves, artificial hips and defibrillators said they were girding for a flood of court filings from device makers like Medtronic asking judges to dismiss such lawsuits.

“Medtronic probably already has summary judgment motions ready to go, and I expect to see them filed in the next few days,” said Hunter J. Shkolnik, a New York lawyer.

“The next six months will be consumed fighting about such motions,” Mr. Shkolnik predicted.

He represents more than 600 plaintiffs with lawsuits in state court in Minneapolis stemming from potentially faulty electrical leads Medtronic made for heart defibrillators.

Lasr fall, Medtronic recalled the product, known as the Sprint Fidelis, after reports that the leads — wires that connected the device to the heart — were more prone to developing potentially deadly fractures than an older lead called the Quattro.

In addition to the Sprint Fidelis and the heart stent cases — some in Massachusetts have named Boston Scientific rather than Johnson & Johnson as the defendant — lawyers said Wednesday’s Supreme Court ruling could also affect the course of personal injury lawsuits filed against St. Jude Medical over a silver-coated heart valve recalled in 2000.

There were 19 state and federal cases pending involving the St. Jude valve as of last October, according to filings with the Securities and Exchange Commission by the company, which is based in St. Paul.

Other lawsuits that could be affected are ones against Johnson & Johnson and Synthes over spinal disks, and Stryker over artificial hip components. Soundtec, an Oklahoma City-based producer of an implantable hearing aid, had been told just two weeks ago by the Arkansas State Supreme Court that the federal approval of its device did not protect it from a claim in state court that its design was defective. Lawyers say the Arkansas decision is now likely to be reversed.

Recent settlements of large groups of lawsuits on terms relatively favorable to device makers are a sign that lawyers had been anticipating the Supreme Court outcome, according to Mark Herrmann, a Chicago lawyer who defends drug and device companies.

In December, for example, Medtronic announced an agreement to pay $114.1 million to settle 2,682 injury lawsuits related to its 2005 recall of defibrillators with a defective battery. In November, Boston Scientific agreed to pay up to $240 million to settle 8,550 claims stemming from recalls of defibrillators made by a subsidiary, Guidant.

Plaintiffs in those cases are free to stay out of the settlements and try to continue suing the companies. But the odds against their success are much steeper now, according to both plaintiffs and defense lawyers.



Serbs Protesters Attack UN Police
Legal World News | 2008/02/22 10:53
Serbs protesting Kosovo's independence for a fifth straight day Friday attacked U.N. police guarding a key bridge in northern Kosovo with stones, glass bottles and firecrackers on Friday.

Serbia's prime minister appealed for calm as the European Union condemned rioting in the capital Belgrade overnight when demonstrators attacked the U.S. embassy and other Western mission. The United States and EU heavyweights Britain, France and Germany have formally recognized Kosovo.

Serbian President Boris Tadic called an emergency meeting of the national security council, saying the riots that engulfed the capital overnight must "never happen again."

In Serb-dominated northern Kosovo, demonstrators waved Serbian flags and chanted "Kosovo is ours!" Police tried to keep protesters off the Kosovska Mitrovica bridge over the Ibar River. The bridge, which divides Kosovo Serbs from ethnic Albanians, has long been a flashpoint of tensions in Kosovo's restive north

Kosovo's ethnic Albanian leaders declared independence from Serbia on Sunday. The province, which is 90 percent ethnic Albanian, has not been under Serbia's control since 1999, when NATO launched airstrikes to halt a Serbian crackdown on ethnic Albanian separatists. A U.N. mission has governed Kosovo since.

Prime Minister Hashim Thaci said Friday the violence was reminiscent of former Serbian leader Slobodan Milosevic's bloody crackdown on ethnic Albanian separatists in Kosovo.



William Lear to step down as law firm's chief
Headline News | 2008/02/22 09:11

One of Kentucky's oldest law firms, Stoll Keenon Ogden, has announced changes in its top management position.

William M. Lear Jr., managing director for 18 years, will step down to return to full-time law practice.

The new managing director will be J. David Smith Jr., a lawyer with the firm.

Lear will remain with Stoll Keenon and continue as chairman of its board of directors for the next two years. Kendrick Riggs is vice chairman.

The managing director functions as the chief operating officer of the firm, Smith said, dealing mostly with financial issues. "We've got 150 lawyers in four cities. Managing director is, basically, a full time job." Smith said Lear "did an incomparable job."

Lear will concentrate on constitutional law cases, economic development and government relations. In the past five years, Lear has become a major downtown developer with several projects in the South Hill neighborhood, including Center Court loft condominiums.

In the community, Lear served as a state representative from 1985 to 1994. He is vice chairman of economic development for Commerce Lexington, and he serves on the board of the Speed Museum in Louisville. He is listed in Best Lawyers in America and Super Lawyers for Kentucky.

Smith, also included in Best Lawyers in America, has been with Stoll Keenon since 1982, and is active in the Kentucky Historical Society and the YMCA.



Supreme Court rules workers can sue over 401(k) losses
Lawyer Blog News | 2008/02/21 16:44
The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses. The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans. James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the "plan" rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. "Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive," Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan's administrators.

"Defined contribution plans dominate the retirement plan scene today," unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue's lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue's employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn't permit individual lawsuits like LaRue's, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.



McCain Says Report on Lobbyist Not True
U.S. Legal News | 2008/02/21 16:39
John McCain emphatically denied a romantic relationship with a female telecommunications lobbyist on Thursday and said a report by The New York Times suggesting favoritism for her clients is "not true."

"I'm very disappointed in the article. It's not true," the likely Republican presidential nominee said as his wife, Cindy, stood beside him during a news conference called to address the matter.

"I've served this nation honorably for more than half a century," said McCain, a four-term Arizona senator and former Navy pilot. "At no time have I ever done anything that would betray the public trust."

"I intend to move on," he added.

McCain described the woman in question, lobbyist Vicki Iseman, as a friend.

The newspaper quoted anonymous aides as saying they had urged McCain and Iseman to stay away from each other prior to his failed presidential campaign in 2000. In its own follow-up story, The Washington Post quoted longtime aide John Weaver, who split with McCain last year, as saying he met with lobbyist Iseman and urged her to steer clear of McCain.

Weaver told the Times he arranged the meeting before the 2000 campaign after "a discussion among the campaign leadership" about Iseman.

But McCain said he was unaware of any such conversation, and denied that his aides ever tried to talk to him about his interactions with Iseman.

"I never discussed it with John Weaver. As far as I know, there was no necessity for it," McCain said. "I don't know anything about it," he added. "John Weaver is a friend of mine. He remains a friend of mine. But I certainly didn't know anything of that nature."

His wife also said she was disappointed with the newspaper.

"More importantly, my children and I not only trust my husband, but know that he would never do anything to not only disappoint our family, but disappoint the people of America. He's a man of great character," Cindy McCain said.

The couple smiled throughout the questioning at a Toledo hotel.

The published reports said McCain and Iseman each denied having a romantic relationship. Neither story asserted that there was a romantic relationship and offered no evidence that there was, reporting only that aides worried about the appearance of McCain having close ties to a lobbyist with business before the Senate Commerce Committee on which McCain served.



High earners face surge in tax audits
Lawyer News | 2008/02/21 15:59

The IRS is turning up the heat on high-income taxpayers, especially those who work for themselves. Internal Revenue Service officials say audits of taxpayers making $100,000 or more rose 14 percent last year from 2006. Recent IRS data also show a 29 percent increase in audits of people making $200,000 or more – and an 84 percent surge in audits of those with incomes of $1 million or more.

Overall, the number of individual income-tax audits reached a 10-year high in 2007 – and the IRS plans to increase that number this year.

The push comes as the agency faces heavy pressure from Congress to raise additional revenue and shrink the nation's $290 billion "tax gap," the difference between what's collected and what should be collected.

IRS research indicates that much of the tax noncompliance is committed by self-employed workers, such as consultants and small-business owners, whose taxes aren't withheld from their pay and whose income isn't reported separately.

This year, "we will continue to focus on audits of high-income individuals," said Linda Stiff, the IRS's acting commissioner.

In addition, agents have increased audits of taxpayers involved in partnerships and businesses organized as "S corporations."

For the vast majority of taxpayers, the odds of getting audited remain low. Only about 1 percent of all individual returns filed in recent years have been audited. But the chances now are higher than just a few years ago.

The IRS relies on numerous techniques to choose which returns to audit. Many are selected using a secret computerized-scoring system that the IRS recently updated, which is based on a continuing research project involving in-depth audits of thousands of returns. Computer programs assign each tax return a score that evaluates the potential for inaccuracies, based on the IRS's experience with similar returns.

Others are picked because of "mismatches" – which means that something a taxpayer reported doesn't match what was reported separately to the IRS by employers or financial institutions.

Some returns get audited because they were done by a tax preparer the IRS suspects of wrongdoing.

Then there are those that get selected because of a tip from confidential informants, such as a former business partner or ex-spouse.



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