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Southern California Regional Rail Authority sues Connex over Metrolink collision.

The AP (10/26) reported that the Southern California Regional Rail Authority "has filed a federal lawsuit asking a judge to determine whether its contractor can be held responsible for the deadly collision of one of its Metrolink commuter trains and a freight train." SCRRA "sued Connex Railroad LLC after they could not agree on whether their contract protects the other from liability, according to court papers released Friday."

        The Los Angeles Times (10/24, Connell) reported that "Metrolink officials have voiced strong concerns about evidence indicating that the engineer violated a ban on cellphone use while at the controls." Metrolink board member Keith Millhouse said, "It's black and white. Even having a cellphone up there [in the locomotive] is a violation. Period. Doing that was clearly an intentional and willful violation of Metrolink policy."

AAJ has given $6,000 to Indiana U.S. House candidate.

In a report on campaign fundraising in Indiana's Third District U.S. House race, the Fort Wayne Journal-Gazette (10/26, Smith) reported that Democratic challenger Mike Montagano received $3,500 from the American Association for Justice during the first two weeks of October, for a total of $6,000 from the AAJ. Republican Rep. Mark Souder maintains a "lopsided financial advantage" over Montagano in the race.

Louisiana faces lawsuits over restrictions on attorney advertising.

The AP (10/26, Kunzelman) reported that Louisiana is "preparing to implement some of the nation's toughest rules on attorney advertising." The rules "prevent Louisiana lawyers from promising 'results' or referring to 'past successes,'" and according to personal injury attorney Morris Bart, who is suing to block the rules, they would also "impose a broad ban on the use of client testimonials, actors' endorsements, and re-enactments. Ads also won't be allowed to portray a judge or jury or compare one lawyer's services to another." Public Citizen is also suing over the rules.

Judicial pay-raise case focuses on plaintiff standing.

The Legal Intelligencer (10/24, Needles) reported, "Plaintiffs' standing was a central issue Wednesday in the reargument in the 3rd Circuit of a suit challenging the process by which the controversial 2005 pay raise for Pennsylvania judges and lawmakers was passed." A federal appeals panel "prodded plaintiffs' counsel to identify the 'particularized injury' sustained by his clients as a result of the passage of Act 44, which the plaintiffs allege was passed as part of secret negotiations between the Legislature and the judiciary." A "considerable portion of the two-hour-long argument was spent debating whether Act 44 is moot since it was repealed by Act 72 in 2005."

New York Court of Appeals seems skeptical about firm's claim to $40 million fee.

The New York Law Journal (10/24, Stashenko) reported that members of the New York Court of Appeals "appeared skeptical during an hour of oral arguments" about a $40 million payoff from a contingent fee agreement sought by law firm Graubard Miller. The firm said it "did not like" the agreement, but "accepted the arrangement to keep a 22-year client with the firm." Several members of the court "questioned the propriety of Graubard Miller seeking to collect the entire amount. Judge Robert S. Smith echoed several of his colleagues when he wondered whether a legitimate contingency agreement, 'where it works out so favorably to the lawyer, where it is so much money for so little work,' could be considered unconscionable." Attorneys for the late client, Alice Lawrence, said Graubard Miller "is seeking to collect an unconscionable amount for little work and after assuming little or no risk under the arrangement."

New Jersey appellate panel rules against Trump, reversing lower court's decision.

The New York Times (10/27, B6) reports, "A New Jersey appellate panel on Friday reversed a lower court's decision in 2006 that would have forced the author of a book about the developer Donald J. Trump to reveal the unnamed sources of his information." Trump sued author Timothy L. O'Brien and publisher Warner Books, "claiming the book damaged his reputation." The panel "ruled that details of Mr. Trump's life were a matter of public interest and therefore subject to a state law protecting the sources and news-gathering methods of journalists."

Ex-teller sues bank over shooting during robbery.

The Indianapolis Star (10/25, Murray) reported that former bank teller Katherin Shuffield, shot during a 2002 robbery that resulted in the deaths of the twins she was pregnant with at the time, is suing Huntington National Bank, saying the "bank was negligent because it ignored a history of robberies and provided too little security at the branch on Indianapolis' Far Eastside. That same branch had been robbed seven to 10 times, the lawsuit states." A bank official "would not comment on the suit, which is made more complicated by a court ruling disqualifying unborn children from wrongful death claims."

U.S. Chamber of Commerce spent $30 million on lobbying in third quarter.

The Los Angeles Times (10/24, Hamburger, Puzzanghera) reported on companies that "have spent millions lobbying Congress" this year, noting that the U.S. Chamber of Commerce, "the strongest voice in Washington for the business community, spent $30 million on lobbying in the third quarter of this year, more than twice as much as it spent for the same purpose in the previous quarter. The spending is part of the most aggressive election-year effort the chamber has ever made, a spokesman for the organization said."

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CMS to address Medicare Advantage insurers' commissions.

The AP (10/25, Freking) reported, "Federal health officials said Friday they will soon address growing concerns about the lucrative commissions that some Medicare insurers plan to pay their agents and brokers this year." Some insurance companies participating on Medicare Advantage have released documents indicating "that their agents stand to make $500 to $550 this year for enrolling a beneficiary into one of their plans." And, "for every year the beneficiary stays with the plan," the broker may receive an additional $500. "After five years, an agent could have made more than $2,500, which is quite a jump from previous years." These rewards are "raising concerns that agents and brokers will work too aggressively to enroll people into plans that don't meet their health needs." Rules "designed to curb abusive sales tactics in the Medicare Advantage program" were recently issued by the Centers for Medicare and Medicaid Services (CMS)," and some lawmakers have urged the agency "to consider capping commissions."

        In the Wall Street Journal's (10/24) Health Blog, Jacob Goldstein noted, "In a letter to the federal official in charge of Medicare," Democratic Rep. Pete Stark, of California, "wrote that brokers' bonuses could 'lead to an unprecedented amount of churning of beneficiary enrollment this year, in a way that is disruptive to their care and detrimental to their coverage.'" Sen. Max Baucus (D) of Montana has also "called on the federal agency 'to take immediate action' to stem the pay problems," according to Modern Healthcare (10/25, DoBias). In response, CMS Acting Administrator Kerry Weems said that the agency "will address the concern and expect to take regulatory action next week."

Oregon Supreme Court rules against insurer in class-action suit.

The Oregonian (10/24, Green) reported the Oregon Supreme Court "sided with an automobile policyholder who said his insurance company should pay not only for repairs, but also the loss in value his vehicle suffered as a result of an accident." Lead plaintiff's attorney Dan Gatti said the class-action lawsuit against Farmers Insurance "could end up including most insurance-covered auto repairs in Oregon since 1993." Gatti said he "has class-action cases pending against the three other big insurance companies -- Allstate, State Farm, and Progressive. Gatti said the damages against Farmers alone could top $30 million."

Florida Supreme Court strikes down injured worker attorney fee cap.

The AP (10/24) reported the Florida Supreme Court "struck down a cap on fees for lawyers of injured workers, saying the attorneys must receive reasonable pay." Florida Insurance Commissioner Kevin McCarty "said his office was reviewing the decision to determine its potential effect on the workers compensation system and rates." Business Insurance (10/25, Phillips) said the insurance industry "lamented the decision and said it likely would drive up workers compensation premiums."

Nevada medical malpractice rules remain controversial four years on.

The Las Vegas Review-Journal (10/26, Harsham) reported, "Nearly four years have passed since voters overwhelmingly approved Question 3 on the 2004 ballot -- a measure that physicians called Keep Our Doctors In Nevada" -- that tightened medical malpractice litigation rules. Doctors, "who have realized dramatic savings on malpractice insurance, love it. So do insurance executives, whose companies profit by not having to make large payouts." But lawyers, "who believe a potentially lucrative part of their business is now cut off, hate it," as do some Nevadans, who "now believe the pendulum has swung too far the other way. Some lawmakers wonder whether the law must be amended to protect the public."

Wisconsin parents awarded $11.4 million in malpractice suit.

The Insurance Journal (10/27) reports that a Wisconsin jury awarded $11.4 million to Chad and Amy Jelinek, who "claimed in a 2006 lawsuit that negligent care by a nurse and nurse midwife at Gunderson Lutheran Medical Center in La Crosse resulted in brain injuries to their son Laine during his birth in 2005." Their attorney "says the money is barely compensation but should improve Laine's life. The hospital issued a statement saying it believes the care was appropriate."

Virginia may cut Medicaid.

The Washington Post (10/25, Jenkins) reported, "Doctors, advocates, service providers, and others who work with Virginia's poor, elderly, and disabled residents are bracing for what they see as inevitable as the state attempts to close a projected $2.5 billion shortfall in its two-year 2009-10 budget: steep cuts in services for the state's most vulnerable." Analysts say that Virginia Gov. Tim Kaine (D) "will target Medicaid, the federal-state program for the poor, elderly, and disabled. At $3.1 billion for 2010, it is one of the state's largest single payouts, providing much of the aid for nursing homes, hospitals, and healthcare for poor women and children. Virginia ranks 48th in the country in per capita Medicaid spending and has some of the nation's tightest eligibility requirements."

Boston considering even more stringent tobacco regulations.

The New York Times (10/27, A18, Zezima) reports, "The Boston Public Health Commission is proposing some of the nation's strictest smoking regulations, banning the sale of cigarettes at drugstores and on college campuses, and shutting down the city's 10 cigar and hookah bars by 2013." According to the commission, "The goal...is to discourage young people from buying tobacco products, to keep a harmful product out of stores that promote health, and to protect employees who are exposed to secondhand smoke." But, "the proposal has angered smokers and small business leaders, who say the pharmacies and cigar bars are unfairly being singled out." The city's "Board of Health will vote on the regulations on Nov. 13. If approved, they will take effect within 60 days."

Critics call FDA's review of medical technology lax.

In a front-page article in its continuing "Evidence Gap" series, the New York Times (10/27, A1, Abelson) reports that the MammoSite system, a breast cancer treatment which involves delivering radiation seeds to a tumor site, "is among the thousands of devices" the Food and Drug Administration (FDA) "lets onto the market each year after only cursory review, and with no clear evidence that they help patients. Doctors are free to use those products as they see fit, without telling patients that the devices are not proved." Moreover, "because the doctors are frequently paid more by Medicare as a way to compensate them for the extra time and expense of adopting new procedures, these unproven products can become widely adopted." While "FDA officials defend the quick-review process as a way to promote innovation," critics contend that the agency's "process for reviewing medical technology, under which medical devices have become a $75 billion-a-year industry in this country, is often too lax. More devices, they say, should get the same scrutiny applied to new drugs."

Supreme Court to hear Wyeth preemption case next week.

On the front page of its Marketplace section, the Wall Street Journal (10/27, B1, Mundy, Wang) reports that next week, the Supreme Court will hear "a case called Wyeth v. Levine," in order to decide whether Americans will be able to "sue drug companies for deaths or injuries caused by medicines." At issue is whether Wyeth "should have put stronger warnings on the label" for a nausea drug after a woman "lost an arm to gangrene" from the improperly administered drug. Wyeth argues that "the drug's label was approved by the Food and Drug Administration (FDA), and...the federal regulator's judgment should trump state law on issues of product safety." And, because the company "complied with FDA guidelines," the company did not "strengthen its warning label to comply with stronger Vermont state law." The plaintiff's lawyers, on the other hand, argue that "FDA guidelines are the floor, not the ceiling, when it comes to safety standards." Although the "most immediate impact of a ruling would fall on the drug industry...the outcome of Wyeth v. Levine could affect many questions" beyond pharmaceuticals. The U.S. Chamber of Commerce "has called the battle -- with some hyperbole -- the business case of the century."

Thoratec warns of potential risks associated with implanted heart device.

The AP (10/26) reported that Thoratec Corp. "has ordered the recall of certain batches of a small mechanical heart pump," the HeartMate II, "saying five people have died while using the device."

        According to Thoratec, "it received 27 reports over five years of wear and fatigue to an electrical wire connected to" the "device, which caused the pump to fail," Bloomberg News (10/25, Pollack) added. The company said that nearly 2,000 "devices have been implanted in the five years since clinical trials began on HeartMate II," which was "approved by U.S. regulators" earlier this year. Thoratec said that "there is a 1.3 percent probability the wire fatigue will result in the need for a pump replacement at" one year. Meanwhile, "the probability of a replacement rises to 6.5 percent at 24 months and 11.4 percent at" three years. The company "recommended the pump be immediately replaced if damage to the percutaneous lead is confirmed."

Appeals court refuses to bar "foreign-cubed" securities lawsuits.

The New York Law Journal (10/27, Hamblett) reports, "The 2nd U.S. Circuit Court of Appeals on Thursday refused to categorically bar foreign plaintiffs from suing in U.S. courts foreign issuers of securities for violations of U.S. securities laws based on transactions in foreign countries. Declining to adopt a bright-line rule barring so-called 'foreign-cubed' securities transactions, the court cited the shared goal of governments around the world to combat securities fraud as one policy reason for largely adhering to its precedent in determining that jurisdiction should be determined on a case-by-case basis."

DOJ to probe alleged California foreclosure scams.

McClatchy (10/25, Doyle) reported, "The Justice Department (DOJ) is gearing up to probe potential scams targeting distressed homeowners in California's San Joaquin Valley." California Democratic Rep. Dennis Cardoza "urged Attorney General Michael Mukasey to investigate mortgage-reduction schemes now being marketed through the Valley. For an upfront fee, homeowners are being told, their monthly mortgage payments can be renegotiated. ... At best, the homeowners may end up paying for work that's available for free. At worst, they'll pay for work that isn't done at all." McClatchy adds, "The mortgage-reduction schemes are just one of the housing-related problems now confronting law enforcement officials. As the market melts down, the investigations are heating up. Two weeks ago, Modesto-based FBI agents assured Cardoza's office they were forming a task force to zero in on mortgage-related frauds."

Defense lawyers could profit from Wall Street collapses.

Bloomberg News (10/27, Hurtado, Voreacos, Fortado) says "defense lawyers are bullish on Wall Street." A "rising number of defendants and suspects in government probes of collapsed financial firms may yield the biggest fee bonanza" for defense attorneys "since the days of Enron Corp. and WorldCom." Lehman Brothers Holdings "alone is the subject of three federal investigations and at least 20 subpoenas. Markets for subprime mortgages, credit default swaps and auction- rate securities have come under scrutiny for possible fraud too."

Chevron faces suit over shooting on Nigerian oil platform.

The San Francisco Chronicle (10/26, Egelko) reported that a federal jury is set to convene today to decide whether Larry Bowoto, who was shot when he and about 100 fellow Nigerian villagers boarded an offshore Chevron oil platform in May 1998, "were violent hostage takers or innocent victims -- and whether a U.S. corporation, whose foreign subsidiary summoned the security forces, is responsible for the bloodshed." While Bowoto recently called his group "'peaceful protesters' who 'never expected Chevron to be so brutal,'" Chevron alleges Bowoto "led a group of armed men who seized the platform, demanding jobs and money, and held 200 employees captive during three days of fruitless negotiations" before Chevron Nigeria Ltd. "called for military help." Bloomberg News (10/27, Gullo) says U.S. companies "can be sued for alleged human-rights abuses committed abroad" under the 219-year-old federal Alien Tort Claims Act.

Libby Mine case finally set for trial.

The Seattle Post-Intelligencer (10/27, Schneider) reports that "after almost three years of pretrial wrangling that went all the way to the U.S. Supreme Court, a federal judge has finally set the starting date for what will be the largest environmental criminal trial in U.S. history." Before a "packed courtroom" in Missoula, Montana, Friday, District Judge Donald Molloy "said jury selection will begin Feb. 19 in the trial against The W.R. Grace Co. and six of its present and former executives on charges of knowingly endangering the lives of thousands of people with asbestos-tainted ore from its vermiculite mine near the tiny northwest Montana town of Libby. The trial could take as long as four months."

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