The firm recently obtained summary judgment in favor of the defendant in a retaliatory discharge case in Mississippi. The case was brought pursuant to a common law “whistleblower” exception created by the Mississipi Supreme Court in McArn v. Allied Bruce-Terminix Co. Inc., 626 So.2d 603 (1993). This exception operates much like the increasingly popular “whisteblower” statutes which have been enacted by a number of state legislatures around the country, and creates a cause of action for retaliatory discharge, even where the employee-plaintiff was an at-will employee.
In order to prevail on a “whistleblower” retaliatory discharge claim, the plaintiff must demonstrate that he or she reported some illegal conduct, and was later discharged for doing so. As in an employment discrimination case, the employer then must establish a legitimate reason for discharging the plaintiff, which was unassociated with the alleged “whistle blowing.” Should the employer be successful in doing so, the plaintiff must then establish that the stated legitimate reason for discharge is mere pretext.Federal Circuit Makes Declaratory Judgments Easier to File (at Least for Holding Companies)
Acceleron, LLC owns patent No. 6,948,021 for a hot-swappable server blade. Acceleron did not invent the patented material -- it is a patent holding company. It purchased that patent on May 31, 2007 and then, just a few months later, on September 14, 2007, Acceleron's president wrote to Hewlett-Packard's (HP) General Counsel stating that Acceleron wanted to "call your attention to the referenced patent" and agreeing "that all information exchanged between the parties will not be used for any litigation purposes whatsoever, including but not limited to any claim that Acceleron has asserted any rights against any of your ongoing or planned activities, or otherwise created an actual case or controversey regarding the enclosed patent." HP responded that it would be willing to forestall filing a declaratoy judgment action for a period of 120 days if Acceleron would agree not to file an action against HP during that same 120 day period. But Acceleron did not accept the offer for mutal standstill, instead claiming "I do not believe that HP has any basis for filing a declatory judgment action" and then requiring HP to accept the terms of the first letter within a two-week deadline. Instead of responding to Acceleron's demand, HP filed a declartory judgment action.
Sports Law: Assumption of Risk and Judicial Review of Torts in Athletics
The majority of U.S. jurisdictions hold that voluntary participants in athletic contests owe no duty of care to each other to reduce or eliminate the risks of harm that are inherent in the sport itself. Knight v. Jewett, 3 Cal. 4th 296, 316-20 (1992); Gauvin v. Clark, 537 N.E.2d 94, 97 (Mass. 1989). The rationale often given is that the plaintiff has assumed such risks because he has consented to relieve the defendant from the general duty of reasonable care by virtue of his decision to voluntarily participate in an activity that necessarily creates these inherent risks. Turcotte v. Fell, 68 N.Y.2d 432, 437-39 (1986). Another rationale that is offered in support of this decision is the policy that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Gauvin, 537 N.E.2d at 97.
However, a different rationale that has little if anything to do with consent supports the rule that participants owe no duty of care to reduce or eliminate the risks of harm that are inherent in the sport itself.
Brand Name Drug Makers Score Victory in 8th Circuit -- Generics Take a Blow
Behemoth brand name drug maker Wyeth scored a victory for all brand names in November -- but the 8th Circuit Court of Appeals left generic drug makers exposed to tort attack. In the case, Mensing v. Wyeth, Inc., a three-judge panel of the 8th Circuit held that brand name drug manufacturers cannot be held liable for alleged inadequate warnings where the plaintiff never used the brand name. However, the panel held that warning claims against generic drug manufacturers are not preempted by the Food Drug And Cosmetic Act (FDCA).
The FDCA requires that generic drugs exhibit the same labeling as brand name bioequivalents. The ruling should send a strong signal to generic drug manufacturers that they will be subject to a number of lawsuits for inadequate warnings or label defects. Preparation to avoid those suits and to manage litigation must commence immediately.
A thorough discussion of the case can be found here.
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