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Entries from July 1, 2007 - August 1, 2007
Important podcast on the Murphy vs IRS decision on taxable damage cases.
The Civil Action Channel
in MASS TORTS
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Over at The Settlement Channel, our associate Mark Wahlstrom was joined last week by Attorney Robert Wood for the first edition of his featured commentary for the Legal Broadcast Network. This commentary is sponsored by ATG Trust Company of Chicago, IL, and will be a regular monthly feature on LBN channels each month. You can learn more about Robert Wood by clicking here to his web site and get a wide range of resources, articles and commentary authored by this nationally respected expert on the tax issues related to taxable and non-taxable damages.
Todays podcast is about the recent Murphy vs IRS opinion, which came out July 3, 2007 and reversed the prior decision which appeared to open up a wide range of taxable cases to potentially falling under the tax free umbrella of section 104(a)(2). You can find the entire Murphy opinion by clicking here.
This podcast, while lengthy at 25 minutes, covers a wide range of topics as to taxable damage cases, what the impact is for trial lawyers and plaintiffs, and some of the issues for litigants in sexual abuse cases among others will now be facing given the wording and reasoning behind the Murphy vs IRS opinion.
With the recent Los Angeles Archdiocese settlement in the news, this discussion of the most recent tax opinion on what is a taxable, and what is a tax free, damage claim couldn’t be more timely and it’s something every trial lawyer needs to be aware of in their practice.
The Settlement Channel is doing a three part blog series specifically on the impact of Murphy v IRS so I want to make sure you know where to find this featured podcast to get more back ground information on this vitally important decision for trial lawyers and settlement professionals.
Civil Action Radio features exclusive interview with Fentanyl Patch verdict winners.
The Civil Action Channel
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Last week on Civil Action Radio guest host, Attorney Roberta Ashkin of the Ashkin Law Office, was joined by the trial lawyer team that won the nationally publicized verdict in the first Federal Fentanyl Patch case. Roberta is a frequent guest and commentator on The Legal Broadcast Network and her commentary on legal issues and areas of interest to trial lawyers can be found exclusively on LBN channels and podcasts.
The 25 minute podcast featured Attorney Jim Orr of Dallas, TX and a partner in Heygood, Orr, Reyes & Bartolomei, and Attorney Ike Gulas of Birmingham, AL and a partner in the firm of Gulas & Stuckey. This podcast is a bit longer then our typical 15 minute editions but this case has been reported in virtually every major national publication and legal magazine and this interview with two key members of the trial team will give you an inside glimpse into the facts and issues that brought this verdict in for the plaintiffs.
Jim Orr focuses his practice on complex business litigation and personal injury matters and over the course of his career he has represented both plaintiffs and defendants in a variety of civil litigation matters and has tried over 60 cases to verdict. He is AV rated by Martindale Hubbell and has been voted several times by his peers one of the “Super Lawyers” in the State of Texas. Also representing the client for Heygood, Orr, Reyes and Bartolomei in this case were Attorney Angel Reyes and Charles Miller as part of the trial team and you can find their bio’s and more information about the firm by clicking the link above.
Ike Gulas has built an impressive reputation in mass tort litigation and class action suits brought against the pharmaceutical manufacturers of Rezulin, Fen-Phen, Serzone and Baycol. His firm is known through out the south as one of the premier mass tort trial firms and this verdict in a difficult federal case will only further cement that reputation.
The podcast discusses the $5.5 million wrongful death verdict against two subsidiaries, Janssen Pharmaceutical Products, LP and ALAZ Corp, of pharmaceutical giant Johnson & Johnson in the nations first federal court trial involving the patch form of the narcotic painkiller fentanyl, also known and sold under the name “Duragesic patch”. In this particular case the plaintiffs were the estate of the late Adam Hendelson who died on December 17, 2003 as a result of the leakage of the patch which put fatal levels of fentanyl into his system, killing him at home.
This is a significant verdict and fascinating case that will be of interest to trial lawyers nationally and settlement professionals who have clients that work in pharmaceutical litigation.
Federal District Judge denies Merck's motion for summary judgment in Vioxx cases
The Civil Action Channel
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Reuters and the NY Times published articles in which U.S. District Court Judge Eldon Fallon denied Merck’s motion for summary judgment in two Vioxx cases. Merck’s argument that the cases should be thrown out on the grounds of preemption did not persuade Judge Fallon. Merck argued that an FDA’s rule preempts the ability to file a products liability lawsuit, but the court ruled that the plaintiffs’ claims did not violate federal law and therefore the plaintiffs’ claims are still valid.
Reuters article- Judge denies Merck motion to discard Vioxx cases
NY Times article- Judge Rejects Merck’s View on F.D.A. Issue
The U.S. District Court’s ruling is also discussed on the FDA Law Blog webpage. The published article cites specific rulings made by the court (see the end of the article).
The Civil Action Channel
Merck moves for a new trial and an appeal on FDA label ruling
Newsday published an article discussing the current status of the federal Vioxx cases that U.S. District Judge Eldon Fallon is presiding over. Earlier this month, Judge Fallon denied Merck’s motion for a summary judgment, where the defendant argued that FDA labeling of a drug preempts an individual or company’s right to sue the drug manufacturer for product’s liability. Judge Fallon was “unpersuaded” by this argument and allowed the two cases in question to proceed to trial. Now Merck is asking permission to immediately appeal Judge Fallon’s ruling that the “FDA’s approval of a label does not protect drug makers from lawsuits claiming a label’s warnings are inadequate.” Merck has asked to appeal the issue now instead of waiting to appeal once final rulings on the two cases have been made. Permission for the immediate appeal has not yet been granted because the court is awaiting testimony from Governors Barbour (Mississippi) and Daniels (Indiana) regarding the question of “whether the new [FDA] label rules would violate states’ rights?” The question was put to the governors by the FDA and the plaintiffs’ attorneys have subpoenaed their videotaped responses. Once the testimony is available to the court, proper judgment can be made on whether Merck will be allowed to immediately appeal Judge Fallon’s ruling.
Also discussed in the article is Merck’s request for a new trial in the only federal case (out of five) that it lost, which involves plaintiff Gerald Barnett, a retired FBI agent who had a heart attack in 2002 after taking Vioxx. Merck’s request for a new trial is based on it’s contention that “Fallon usurped a jury’s job when he proposed a $1.6 million award to Barnett to replace the $51 million jury judgment he had found excessive.” Merck argues that the judge should not have made a recommendation to the plaintiff regarding damages, but rather, he should have allowed the jury to make such a recommendation. Merck feels that the court does not really know what damages the jury would have awarded based on the injuries suffered by the plaintiff; hence, no damages should have been awarded based solely on the judge’s recommendation. Once a decision is made on whether a new trial will be granted, it will be posted here.
For now, Merck faces approximately 27,000 lawsuits, 8,575 of which are federal lawsuits and 16,400 which are in the state courts of New Jersey alone. In total, Merck is being sued by approximately 45, 225 plaintiffs and it “has agreed to let another 14,450 potential claimants sue after their statute of limitation expires.”
Click here to read the full article Vioxx federal judge: stroke cases may take up 2008