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Paxil Teen Suicide Case Trumped by Michigan Law
Headline News | 2008/04/01 14:53

The parents of a Michigan teenager who killed herself while on the antidepressant Paxil cannot sue the drug's manufacturer because a state law grants immunity to the maker of any drug approved by the Food and Drug Administration.

U.S. District Judge Paul L. Maloney of the Western District of Michigan said FDA approval of Paxil use by adults was enough to shield manufacturer SmithKline Beecham Corp., even though the agency never approved the drug's use by teens.


He therefore dismissed Nadine White and David B. McCullough's lawsuit against SKB over their 16-year-old daughter Moriah's 2001 suicide after taking Paxil for three months.

Michigan is the only state with a law providing drugmakers immunity from state tort suits if the FDA has certified their products as safe and effective. The only exceptions to the statute are for fraud on the FDA or bribery of an agency official.

In this case, White and McCullough filed a negligence and strict-liability suit against SKB in a Pennsylvania federal court because the company is located in that state.

The drugmaker won a change of venue to the Western District of Michigan because the plaintiffs are residents of that state. It then filed a motion to dismiss.

In their opposition to the motion the plaintiffs argued that their suit is a failure-to-warn case because SKB never warned doctors not to prescribe Paxil to teens or children and, in fact, conducted a secret campaign to promote such "off-label" use.

Moreover, since the company never applied to the FDA for marketing approval to prescribe the drug to teens and children, it cannot argue that it has immunity under the Michigan statute, they said.

Judge Maloney rejected that argument, saying the Michigan Legislature provided immunity to drug manufacturers for FDA-approved products and that it is uncontested that Paxil was approved by the agency for use in adults.

"The statute does not limit the protection to situations when the drug is used for approved purposes," he said. "Should the Legislature wish to limit the protection available to "off-label" uses of the drug, it may do so."



Hollinger settles civil fraud lawsuit with SEC for $21.3M
Headline News | 2008/03/27 16:09

Hollinger Inc., the Canadian holding company with an interest in former newspaper publisher Hollinger International has agreed to pay the US Securities and Exchange Commission (SEC) $21.3 million to settle claims that from 1999 to 2003 it violated securities law by failing to disclose to investors payments and other transactions that benefited the executives to the detriment of the company. The settlement stems from a lawsuit filed by the SEC in November 2004 against former Hollinger International chairman Conrad Black, former Hollinger president David Radler, and Hollinger Inc. Under the terms of the settlement, Hollinger Inc. has agreed to be permanently enjoined from committing future securities laws violations. The settlement must still be approved by US District Judge William T. Hart before it becomes final.

Radler was sentenced in December to 29 months in prison for one count of mail fraud, after pleading guilty and agreeing to serve as a witness against Black. Black was convicted in July of mail fraud and obstruction of justice and sentenced to 78 months in prison; he began serving his sentence earlier this month after a federal appeals court rejected his request to remain free on bail while his appeal is pending. Radler, Black and other Hollinger executives were prosecuted in the United States in connection to allegations that they diverted more than $80 million from Hollinger International, now Sun-Times Media Group, and its shareholders during the company's $2.1 billion sale of several hundred Canadian newspapers.



Supreme Court Allows Retiree Benefits With Medicare
Headline News | 2008/03/25 16:14

The Supreme Court on Monday let stand a federal policy that allows employers to reduce their health insurance expenses for retired workers once they turn 65 and qualify for Medicare.

The justices turned down an appeal by the 35-million-member AARP to undo a rule that essentially allows employers to treat retirees differently depending on their age.

The rules were put into place by the federal Equal Employment Opportunity Commission, with the support of labor unions and other groups. They worried that employers would greatly reduce or eliminate health benefits for millions of retirees if they could not take Medicare into account when structuring the health benefit packages they voluntarily provide their retired workers.

The EEOC rule makes clear that employers can spend more on retirees under 65 years of age than those over 65 without running afoul of age discrimination laws.

The EEOC said it proposed the rule in response to a decision in 2000 by the 3rd U.S. Circuit Court of Appeals in Philadelphia that held that the Age Discrimination in Employment Act requires employers to spend the same amount on health insurance benefits provided Medicare-eligible retirees as those received by younger retirees.

AARP said EEOC violated the intent of Congress when it proposed the rule. But the EEOC said the same age discrimination law allows it to carve out an exemption to preserve the long-standing practice that allows employers to coordinate benefits with Medicare.

The same appeals court upheld the EEOC policy last year



Lawyer Melvyn Weiss to Plead Guilty in Scheme
Headline News | 2008/03/20 17:55
Prominent attorney Melvyn Weiss has agreed to plead guilty in a lucrative kickback scheme involving payments to plaintiffs in class-action lawsuits against some of the largest corporations in the nation, his defense attorney said Thursday.

Weiss will plead guilty to "limited participation in a criminal conspiracy" involving payments to plaintiffs, attorney Benjamin Brafman said in a statement.

"I deeply regret my conduct and apologize to all those who have been affected," Weiss said in the statement.

Brafman did not specify the charges involved in the plea. Weiss previously pleaded not guilty to one count each of conspiracy, mail fraud, money laundering and obstruction of justice in a revised indictment.

The plea deal calls for Weiss to receive a prison sentence of 18 to 33 months, with the court able to substitute time in home confinement or community service.

Weiss also agreed to pay $10 million in fines and forfeiture penalties, according to the statement.

Authorities say the firm now known as Milberg Weiss made an estimated $250 million over two decades by filing legal actions on behalf of professional plaintiffs who received $11.3 million in kickbacks.

The lawsuits targeted companies such as AT&T, Lucent, WorldCom, Microsoft Corp. and Prudential Insurance.



Supreme Court to rule on broadcast indecency
Headline News | 2008/03/18 17:10

The Supreme Court agreed Monday to rule for the first time in 30 years on what constitutes indecency on broadcast television and radio.

The justices will weigh whether federal regulators may levy large fines on broadcasters who let expletives on the airwaves during daytime and early evening hours.

The court could rule that the Federal Communications Commission has broad power to decide what is acceptable for broadcasts. Or the justices could conclude that the 1st Amendment's protection for the freedom of speech does not allow the government to punish broadcasters for an occasional vulgarity.

The justices have not ruled on the indecency standard since 1978, when they upheld fines against a radio station for broadcasting comedian George Carlin's "seven dirty words" monologue in midafternoon. One justice described Carlin's performance as "a sort of verbal shock treatment" because the familiar curse words were repeated over and over.

Since then, however, it has been unclear whether the use of a single expletive could be judged indecent. Federal law forbids broadcasting "any obscene, indecent or profane language," but Congress has left it to the FCC and the courts to define indecency.

Last year, the major networks won a ruling in New York that blocked the FCC from enforcing a strict new rule against the broadcasting of "fleeting expletives."

Bush administration lawyers urged the high court to take up the dispute and to give the FCC a green light to enforce its crackdown on vulgar words. The government says broadcasters who use the public airwaves have a duty to protect children and families from unexpectedly hearing foul language.

The FCC has fined CBS $550,000 for broadcasting Janet Jackson's performance at the 2004 Super Bowl, which included a brief exposure of her breast. The network is appealing the fine in a court in Philadelphia.

The president of the Parents Television Council in Los Angeles applauded the court's announcement. "Such harsh, unedited profanity is unacceptable for broadcast over publicly owned airwaves when children are likely to be watching," said Timothy Winter, the president.

His group claims more than 1.2 million members, and he said many complained when they heard expletives used during Hollywood award shows. "It seems you can't have an awards show without someone dropping an F-bomb," Winter said.

The FCC cited several incidents that led it to issue the new rule. Singer Bono of U2 exulted upon winning a Golden Globe for an original song, calling it "really, really f . . . brilliant." Entertainer Cher described a career achievement award on another program as a rebuke to her critics. "So, f . . . 'em. I still have a job and they don't," she said.

The major TV networks sued to block the rule. In their defense, they say they have firm policies against the use of vulgar words. They are not included in scripts, for example. But on occasion, they say, these words have slipped passed monitors and gone on the air when a guest performer appeared on a live broadcast.

The networks used a five-second delay on several of the live broadcasts cited by the FCC, but a monitor failed to bleep out the expletive.

The stakes for broadcasters increased when Congress voted in 2006 to raise the maximum fines for indecency tenfold. Network executives say they could face millions of dollars in fines for letting a single expletive go on the air during a national broadcast.

In March 2004, shortly after the Janet Jackson incident, the FCC adopted its zero-tolerance policy for "fleeting expletives." The commissioners rejected the defense that Bono had used the F-word as an adjective, not a curse.

The U.S. appeals court in New York, in its ruling last year, agreed with the broadcasters that the FCC had not justified its abrupt change in policy. Its judges also said the policy was unclear because the F-word was permitted in some news shows and in the TV broadcast of "Saving Private Ryan." The commissioners said the profanity on the D-day beaches was integral to depicting the horror of war.

Lawyers for the broadcasters had urged the Supreme Court to steer clear of the case. They said the FCC should be forced to reconsider and clarify its policy.

"I thought there was no chance they would take this case," said Andrew Jay Schwartzman, president of the Media Access Project. "If the FCC is affirmed, the message will be that indecency is whatever the FCC says it is."

It is not clear whether the growth of new media will affect the court's view of what is indecent. Since the court last ruled on the issue, cable TV, the Internet and satellite radio have emerged as competitors to traditional broadcasters. But these new media are not regulated by the FCC because they do not transmit signals over the public airwaves. Arguments in the FCC vs. Fox TV will be heard in the fall.

The court also agreed to decide whether the special protections added to the Voting Rights Act in 1982 extended to communities where blacks make up less than half the population.

The outcome in Bartlett vs. Strickland could affect how electoral districts are drawn after the 2010 census. The law forbids states from splitting up large blocs of black voters who could elect a black representative to a state legislature or Congress. But it is not clear whether this protection is triggered only if blacks make up a majority of the community.

The court will also decide in Melendez-Diaz vs. Massachusetts whether criminal defendants have a right to question lab technicians whose reports are used by prosecutors. In recent years, the court has stressed that defendants have a right to confront all witnesses.



Supreme Court Gun Case Draws Protesters
Headline News | 2008/03/18 16:09
Advocates of gun rights and opponents of gun violence demonstrated outside the Supreme Court Tuesday while inside, justices heard arguments over the meaning of the Second Amendment's "right to keep and bear arms."

Dozens of protesters mingled with tourists and waved signs saying "Ban the Washington elitists, not our guns" or "The NRA helps criminals and terrorist buy guns."

Members of the Brady Campaign to Prevent Gun Violence chanted "guns kill" as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted "more guns, less crime."

A line to get into the court for the historic arguments began forming two days earlier and extended more than a block by early Tuesday.

The high court's first extensive examination of the Second Amendment since 1939 grew out of challenge to the District of Columbia's ban on ownership of handguns.

Anise Jenkins, president of a coalition called Stand Up for Democracy in D.C., defended the district's 32-year-old ban on handgun ownership.

"We feel our local council knows what we need for a good standard of life and to keep us safe," Jenkins said.

Genie Jennings, a resident of South Perwick, Maine, and national spokewoman for Second Amendment Sisters, said the law banning handguns in Washington "is denying individuals the right to defend themselves."

The court has not conclusively interpreted the Second Amendment in the 216 years since its ratification. The basic issue for the justices is whether the amendment protects an individual's right to own guns or whether that right is somehow tied to service in a state militia.

Even if the court determines there is an individual right, the justices still will have to decide whether the District's ban can stand and how to evaluate other gun control laws. This issue has caused division within the Bush administration, with Vice President Dick Cheney taking a harder line than the administration's official position at the court.

The local Washington government argues that its law should be allowed to remain in force whether or not the amendment applies to individuals, although it reads the amendment as intended to allow states to have armed forces.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

Dick Anthony Heller, 65, an armed security guard, sued the District after it rejected his application to keep a handgun at his home for protection. His lawyers say the amendment plainly protects an individual's right.

The 27 words and three enigmatic commas of the Second Amendment have been analyzed again and again by legal scholars, but hardly at all by the Supreme Court.

The amendment reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Chief Justice John Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."



Inmate Wins Supreme Court Review
Headline News | 2008/03/17 23:58
A Texas inmate acting as his own attorney persuaded the Supreme Court on Monday to hear his case.

Carlos Jimenez was sentenced to 43 years in prison in 1995 after pleading guilty to burglary and violating the terms of his probation. Jimenez had a prior felony conviction for aggravated assault with a deadly weapon.

In 2005, acting as his own lawyer, Jimenez petitioned a federal court, challenging his burglary conviction and asserting that he had not received proper legal representation when he went before the state courts in San Angelo, Texas.

The federal judge said Jimenez had waited too long to file his petition and refused to extend the deadline. Federal law gives state inmates one year after a conviction is final to petition a federal court for review of their cases.

At issue is Jimenez's argument that the one-year clock should have started all over again in 2005 because of the unusual circumstances of his case.

In 1996, a state appeals court dismissed Jimenez's appeal after a court-appointed lawyer said in court papers that in his professional opinion, Jimenez had no grounds for an appeal.

Nearly six years later, the Texas Court of Criminal Appeals agreed to let Jimenez file an appeal based on his argument that his attorney in 1996 had not properly notified him of what the attorney was planning to do. The appeals court wrapped up its work on Jimenez's belated petitions in 2005, after affirming his conviction and sentence.



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