How Appealing

Wednesday, September 14, 2011

"Tennessee lawyers want state Supreme Court to take a new look at whether one of its own was too biased to rule in a 2005 case": Abdon M. Pallasch of The Chicago Sun-Times has a news update that begins, "Some Tennessee lawyers, including former U.S. Sen. Fred Thompson, are asking the Supreme Court of Illinois to take a new look at whether one of its own was too biased to rule in a 2005 case that overturned a billion-dollar verdict against State Farm Insurance."

The Belleville News-Democrat has an update headlined "Lawyers accuse State Farm of hiding its 'extraordinary support' of Supreme Court Justice Lloyd Karmeier."

And The Associated Press reports that "Appeal questions Illinois justice's fairness."
Posted at 10:50 PM by Howard Bashman

"Feuding Mires Wisconsin Court": In today's edition of The Wall Street Journal, Nathan Koppel has an article that begins, "Justices on the Wisconsin Supreme Court, which began a new term last week, are taking steps to address some of the worst infighting in the court's history."
Posted at 10:30 PM by Howard Bashman

"Victorious Lawyer in Climate Case Still Critical of Plaintiffs' Strategy": Lawrence Hurley of Greenwire has an article (via The New York Times) that begins, "The top government lawyer who successfully argued a major climate case before the Supreme Court this year has criticized his erstwhile opponents for claiming states should be able to sue polluters over greenhouse gas emissions under federal common law."
Posted at 06:12 PM by Howard Bashman

"Judge Sparks' 'cute' orders criticized by appellate judge": This article appears today in The Austin American-Statesman.
Posted at 04:27 PM by Howard Bashman

"Copyright Troll Righthaven Says It's Nearing Bankruptcy": David Kravets had this post Monday at's "Threat Level" blog.
Posted at 04:18 PM by Howard Bashman

"Plane carrying Justice Bader Ginsburg evacuated": The Associated Press has this report.
Posted at 02:30 PM by Howard Bashman

"How many days are in a year? The answer is more complicated than it may first appear." So begins an opinion that Circuit Judge Jay S. Bybee issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 02:10 PM by Howard Bashman

"How the Anti-Injunction Act could scuttle everything": Brad Joondeph has this post at the "aca litigation blog."
Posted at 01:14 PM by Howard Bashman

"Judge casts doubt on ACLU challenge to law forbidding audio recording of cops": Today's edition of The Chicago Sun-Times contains an article that begins, "A senior appeals court judge said Tuesday that if Illinois' eavesdropping law were expanded, gang bangers and 'snooping' reporters would run rampant, secretly recording conversations unchecked."
Posted at 01:12 PM by Howard Bashman

PACER fee to increase to ten cents per page: At his "Under the Radar" blog at, Josh Gerstein has a post titled "Federal courts to hike records' fees 25%."
Posted at 01:05 PM by Howard Bashman

"Court To Expedite Appeal In $3.4B Class Action Settlement": At "The BLT: The Blog of Legal Times," Mike Scarcella has a post that begins, "The U.S. Court of Appeals for the D.C. Circuit has agreed to expedite a challenge to the $3.4 billion Native American class action settlement that a trial judge declared fair and reasonable."
Posted at 12:50 PM by Howard Bashman

Judge and jury: The Associated Press reports that "Supreme Court Judge Breyer joins architecture jury."
Posted at 11:09 AM by Howard Bashman

"Pennsylvania Considers Changes to Drug Products Liability Law": Amaris Elliott-Engel has this front page article today in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers.

It turns out that the live broadcast feed of Pennsylvania Cable Network is available over the internet: simply click here and then click on the "Live Signal" button located directly below the image of a television screen. PCN is scheduled to re-broadcast yesterday's oral arguments beginning at 11 a.m. eastern time today. I argued the second and fifth cases; the oral argument in the first of the two cases that I argued yesterday should begin around 11:40 a.m. or soon thereafter.

At oral argument, I sought to emphasize the following three points:

First, comment (a) to Restatement (Second) of Torts 402A expressly sets forth the conclusion that the unavailability of a strict liability claim in any case does not preclude the plaintiff from pursuing a claim in negligence.

Second, whether or not a product qualifies as "defective" under 402A is an entirely distinct question from whether the product was negligently designed. Indeed, principles of negligence have no application to strict liability; strict liability focuses on the product and the consumer's expectations, while negligence focuses on the reasonableness of the defendant's conduct. Along those lines, simply because a prescription drug may be "unavoidably dangerous" does not mean that it cannot be more safely designed to avoid harms that are in fact avoidable.

And third, in even the two most favorable jurisdictions for Wyeth -- in California and Utah, where the highest courts of those states have categorically rejected strict liability design defect claims involving prescription drugs -- courts recognize that negligent design defect claims against prescription drug manufacturers may still be pursued. See Artiglio v. Superior Court, 27 Cal. Rptr. 2d 589, 591 (Cal. App. 1994) ("Liability for defective design could not be premised on strict liability, but would require proof of negligence"); Lake-Allen v. Johnson & Johnson L.P., 2009 WL 2252198, at *2-3 (D. Utah July 27, 2009) (refusing to dismiss negligent design defect claim, finding comment k "limited to strict liability"). Thus, Wyeth's central argument, that the unavailability of a strict liability claim thereby precludes a claim for negligent design defect, is simply incorrect.
Posted at 11:04 AM by Howard Bashman

"Pa. Supreme Court televises first arguments": The Pittsburgh Tribune-Review contains this article today.
Posted at 10:52 AM by Howard Bashman

"Judges asks why Oklahoma's law on Sharia applies to only one religion; 10th U.S. Circuit Court of Appeals takes up Oklahoma's voter-approved Sharia law case": This article appeared yesterday in The Oklahoman.
Posted at 08:14 AM by Howard Bashman

"Court backs district on teacher's religious banners": Bob Egelko has this article today in The San Francisco Chronicle.

The Los Angeles Times reports today that "Court says teacher has no right to banners referring to God; San Diego-area high school math instructor claimed his 1st Amendment rights were violated when the principal ordered him to take down banners he saw as celebrating America's religious heritage."

Greg Moran of The San Diego Union-Tribune has an article headlined "Federal court: Teacher can't refer to 'God' in classroom banners."

The North County Times reports that "Appeals court rules against teacher who posted banners containing 'God.'"

And Warren Richey of The Christian Science Monitor has an article headlined "'God Bless America'? Not in high school math class, US judges rule; A US appeals court in California says a public high school teacher has no constitutional right to display posters in his math class preaching his 'views on the role of God in our nation's history.'"

You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 08:10 AM by Howard Bashman

"Justice Department: High court should overturn ruling against PPL Montana." This article appears today in The Missoulian of Missoula, Montana.
Posted at 07:50 AM by Howard Bashman

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